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Process serving moves online in Ontario?

A judge in Ontario recently allowed a woman to serve her child’s father with a paternity action over Facebook, and has said that it would be wise for more people in the province to use more creative methods like online process serving.

The woman could not find the father’s address in order to have him served traditionally, but was able to find him on Facebook. She sent him a message on Facebook with documents attached, to which he replied. According to the judge, this reply was enough evidence to consider him served effectively. Texting via Blackberry and e-mail are also acceptable options according to Ontario Superior Court Justice Cheryl Robertson in a paper she presented at the 1000 Islands Legal Conference this month.

 

“In a province where, for reasons of money and time, the judicial system is increasingly out of reach for money, e-service can be a useful and viable alternative,” she said. “It will be foreign for some, and some will be uncomfortable using these electronic servers, but with time their advantages will likely win over even the greatest of skeptics.”

 

In most cases, people draft an application to start a family law proceeding (usually with the help of a family lawyer), after which it must be served to upon the opposing party. Many times the person being served is not on good terms with the applicant, so a process server is hired. When people suspect there is an attempt to serve them, for example to obtain child support or spousal support payments, they become anxious and may avoid being served. Using online methods may allow these issues to work through the courts faster without unnecessary delays from litigants avoiding being served.

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More of British Columbia’s progressive family law changes revealed

The family law problems posed by modern life will soon have more clear-cut resolutions as British Columbia plans on tabling the new Family Law Act (the changes’ working title) during the first half of next year.

The 30-year-old Family Relations Act in British Columbia, which is the province’s version of the Ontario Family Law Act, is set to be completely overhauled with new rights for common-law couples and new custody rules to for today’s non-nuclear families.

Separating couples’ time with their children won’t be called access or custody anymore, but “parenting time” or “guardianship”. Families who are constantly in volatile disputes where children are involved will have parenting coordinators that will have the authority to act as an arbitrator, and children conceived by an egg or sperm after the donor parent dies will be seen in the eyes of the law equal to any other child by that particular pairing.

In addition, ex-spouses who act inappropriately can be given conduct orders that result in jail time and fines.

British Columbia’s government consulted with family lawyers, the Canadian Bar Association, as well as the public, in order to come up with the 172-page white paper.

Currently, Ontario does not have similar laws granting common-law couples property rights or custody laws that compare with those that British Columbia is proposing.

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Ontario man running for family law changes

Dave Nash is running across Canada to increase awareness of the current issues within the family law system.  Nash spent four years trying to resolve a custody dispute with his ex-wife in order to get shared custody of his son, and the people along his route that give him food, water or a place to stay have revealed similar experiences.

The Cross Canada Run for the Children will end in Cape Spear, Newfoundland, after beginning in Victoria, British Columbia – a distance of almost 7,300 kilometers to support the reform of Canadian family law and Bill C422.

Bill C422 is a private members bill that supports equal shared parenting in child custody disagreements, and the Bill had its first reading in parliament on June 16th, 2009. If passed, equal shared parenting between both parents would be the normal, or default situation assigned by the court in order to allow the children an equal relationship with both parents unless there is a safety concern. Also, the Bill would make it mandatory for parents to attend mediation prior to proceeding through the court system as a last resort to protect children from lengthy custody battles.

If Nash, from Guelph, completes his run before September 1st, he will have broken the World Record for the Fastest Crossing of Canada on Foot. He chose to break the Guinness World Record of 72 days to cross Canada on foot, because a non-custodial parent will typically spend on average 72 days per year with their child or children.

 

 

 

 

 

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BC continues to improve its family law rules, will Ontario be next?

British Columbia recently announced that the province is set to propose additional rights for common-law couples, and is also continuing to announce different amendments it plans to enact pursuant to its Family Relations Act.

Property and asset division rules for common-law couples were part of the major changes in B.C. These changes are necessary as there have been a growing number of couples that are choosing not to marry but to remain common-law relationships and, upon separation, if not on title, may not have any rights to the family property.

Other changes to the Act include the introduction of “parenting co-ordinators” during heated child custody cases. In addition, it will now be possible for a child to have more than two legal parents, which will be the first change of its kind in the whole country. This would be the case, for example, when a same-sex male couple has used a surrogate female to have a child and all three would be legal parents if they’re in agreement. The same could be said for a same-sex female couple and a male sperm donor, if all three are active parents of a child.

Spousal support will be able to continue after a paying ex-spouse’s death, if applicable.

Restraining orders available through the court would now be protection orders that are enforceable under the Criminal Code.

As well, parties intending to go to court over property and child custody disputes will need to first show an attempt to negotiate a settlement through the use of out-of-court methods such as mediation.

It’s been 30 years since British Columbia has made any changes to its Family Relations Act.  The recent changes will update the Act to deal with the evolving family structure to include common-law couples, same-sex couples as well as surrogacy and sperm donors.

 

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More Ontario residents choosing out-of-court methods to resolve family law issues

According to a number of Ontario lawyers and professional mediators, an increasing number Ontario residents are taking their family law cases to alternative dispute resolution, including mediation and collaborative law. Alternative dispute resolution is a cost-effective alternative to the cost of litigating a family law matter in court, which is no longer within means for most people.

Alternative dispute resolution also provides a quicker resolution to a family law matter than litigation and provides parties with an opportunity to be heard and the ability to control negotiations. Parties are able to come to agreements, as opposed to having a resolution forced upon at least one party by a judge.

In mediation, a third party with special training, such as a background in social work, will assist both parties in making decisions. Lawyers are usually retained by the parties for advice in these cases, while in arbitration an arbitrator will meet with the parties’ respective lawyers. In collaborative law, parties’ lawyers will work to finalize an agreement that is acceptable for both parties, although if issues cannot be resolved the lawyers cannot be retained for any future court proceedings.

In 1999, the Ontario Mandatory Mediation Program was introduced in Toronto, Ottawa and Windsor. Mediation is an option that must now be considered in civil disputes at those locations. Mandatory mediation was not extended to family law cases because in some instances, such as domestic violence cases, mediation may not be a possibility.

In addition to its cost-effectiveness, alternative dispute resolution also removes children of separated parents from any exposure to the court process, and it enables adults, who were once children of their parents’ long, drawn out divorces, to go through their own family law dispute without lengthy litigation.

 

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Facebook Privacy Issues and Ontario Family Courts

The social networking website called Facebook is a tool to exchange information that has now made its way into the courtroom and is being used as evidence in litigation, particularly in family law disputes. In the United States, Facebook messages are commonly used in family law cases, as well as in civil and criminal cases and jury selection; while in Canada, the use of Facebook as documentary evidence is steadily on the rise.

Facebook has recently simplified its privacy settings and a user can now set his or her Facebook settings to enable only persons the user has manually added to their “friends list” with the ability to access and view the user’s on-line profile.

Another important feature within Facebook’s account privacy settings is the user’s ability to limit the information “friends” can view on the user’s profile. For instance, a user can prevent an ex-spouse or soon to be ex-spouse from viewing photos, relationship status, or wall postings.

Facebook users should be aware of a specific privacy setting that is available for ‘Applications’. Even though some users do not have the game FarmVille, or similar Facebook games uploaded to their profile, when a user’s “friend” has installed the game on their profile that game now has the capability of pulling personal Facebook information and photos from any listed “friends” of that individual. An adjustment to the privacy settings to prevent any sharing of information with an Application is recommended.

Due to the increase in the use of Facebook as documentary evidence in several recent Ontario family law court cases, Facebook users with pending court matters should not post information pertaining to the case and should also consider adjusting their privacy settings to avoid the possibility of having personal information used against them in court. 

 

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Police Enforcement of Custody and Access Orders

Custodial and access (also known as “visitation”) rights under a court order or from a separation agreement are enforceable under the Criminal Code of Canada and the Hague Convention on International Child Abduction.  Both the Code and the Convention serve to protect a child’s right to security and stability by enforcing custody orders and prohibiting child abductions, locally and internationally.

The enforcement of custodial and access rights in Ontario is also governed by the Children’s Law Reform Act (CLRA).  Pursuant to section 36 of the Act, if a family court judge is satisfied that there are “reasonable and probable grounds for believing that a person is unlawfully withholding a child” the court has the ability to compel the police to enforce a custody or access order and may authorize the police to locate, apprehend, and deliver the child to the person entitled to custody or access of that child.

Courts have refused to grant an order for police enforcement on the grounds that it would be intrusive and a potentially frightening method of enforcement to a child.   Drake v. Cox (1993). Such a result would not be in the best interests of a child and some courts have instead opted to punish an act of willful contempt by imposing either a fine or imprisonment for the failure to comply with a custodial or access arrangement as stipulated by the court.

Courts can issue police enforcement orders if deemed appropriate in light of the surrounding circumstances, such as a history of unjustified access denial between the parties, serious threats of non-removal of the child, or to maintain the relationship between the child and the person entitled to custody or access, and that such enforcement would outweigh any potential risks.

For more information about the enforcement of your custodial or access arrangement, contact us at 416 222 4555 or info@divorcesupport.ca.

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What Are My Child Visitation or Access Rights as a Non-Parent?

Access for Parents

Access (also known as “visitation”) is the child’s right to have contact with his or her non-custodial parent after a separation or divorce.  Access can be determined informally between the parents, by way of a written agreement, or a court can make an order.

Who else may Seek Access?

In addition to a biological parent, other persons who have had or want to have a relationship with a child may also seek reasonable access pursuant to section 21 of the Children’s Law Reform Act and section 16(3) of the Divorce Act. “Non-parents” include grandparents and other relatives, step-parents, and common-law partners who are not the biological parent of the child.

Procedure for Grandparents and other Non-Parents to Request Access to a Child

Non-parents must seek leave (permission) from the court to submit an application for access. A court can grant an order for access to a non-parent under a number of circumstances, including where the non-parent has had a close relationship and is seeking to continue to spend time with the child.  The merits of an application for access are determined based on whether it would be in the child’s “best interests” and whether there is “some beneficial connection” between the non-parent and the child.  J.H. v. B.G. (1993).

Considerations for Granting Access to Non-Parents

As a general rule, biological parents have the right to determine with whom their children will associate. However, a judge can override a parent’s access decision on the premise that the child would benefit from having contact with the non-parent, particularly if there is a genuine bond between the child and the non-parent and whether severing any pre-existing relationship would have an adverse impact upon the child.

An order for access will not be granted if the biological parent can provide compelling reasons that denying access to the non-parent would be in the child’s best interests.

Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application for access with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.

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2010 Brings Major Changes to Family Law in Ontario

Commencing March 1, 2010, the McGuinty government will be implementing major reforms to a variety of Family Law matters in Ontario.  The reforms have been introduced with the objective of improving the public’s access to justice in family courts.

The following are some highlights of the changes that will take effect under the new legislation:

• Family law litigants will have greater access to legal advice and the opportunity to resolve issues through the use of mediation, arbitration, and collaborative family law
• Steps to family law litigation will be streamlined and simplified
• Steps to obtaining a restraining order have been modified
• Child support amounts pursuant to either a court order or a domestic contract filed with the court may be recalculated by a child support service to reflect updated income information
• Additional evidentiary requirements must now be met when filing an application for custody or access to a child, including an accompanying affidavit containing a proposed plan for the child’s care and upbringing and information regarding the person’s current or previous involvement in any family law and criminal proceedings
• Every person applying for child custody or access who is not a parent must complete and provide to the court the results of a police records check and a children’s aid society report
• Where a person is declared to be the parent of a child, his or her written consent is required to change the child’s surname, if consent cannot be obtained or is refused an application can be made to the court
• Where a person is declared to be the parent of a child, an application can be made to the court to request that the child’s surname  be changed to any surname that the child could have been given at birth
• The definition of “Net Family Property” has been amended to include any contingent tax liabilities when calculating a spouse’s debts and liabilities on the date of  separation
• “Property” is to include the imputed value of a spouse’s interest in a pension plan

Full details of the upcoming reforms are still to be released by the government.

Check back to our blog for further details once the family law changes come into effect on March 1, 2010.

For further information on family law and divorce contact us at info@divorcesupport.ca or call us at 416 222 4555

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Child Protection, Custody and Access with the Office of the Children’s Lawyer (OLC)

The Office of the Children’s Lawyer (OCL) is an independent law office within the Ministry of the Attorney General offering services on behalf of children respecting their personal and property rights.

OCL investigates, advocates, protects and represents the personal and property rights and obligations of children in proceedings before the courts and tribunals of Ontario.

In house Toronto staff of lawyers, articling students and clinical investigators carry a personal caseload and supervise members of the OCL panels who do Children’s Lawyer work across the province.

To get the OCL involved in the custody/access proceedings, one or more of the parties may ask the court to make an order appointing the Children’s Lawyer.

The appointment of the Children’s Lawyer may assist the court when it requires independent information and representation about the interests, needs and wishes of the child or children who is subject of the proceedings.

The Children’s Lawyer does not represent children in child support matters in custody/access cases.

For more information about the OLC or child custody or access issues contact us at 416 222 4555 or info@divorcesupport.ca

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