After She Leaves · Custody & access Must contain an Affidavit in Support of Claim for Custody or Access (Form 35.1) Restraining order Application & CPIC* Restraining Order Information

Copyright Luke's Place 2019 November 27, 2019

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After She LeavesAfternoon sessionWednesday November 27, 2019

Presenter: Pamela Cross

Family Law & Court Process

Laws for family breakdown

• Divorce Act

Only federal law

• Family Law Act – property division, spousal support, restraining orders

• Children’s Law Reform Act – custody & access, child support

• Child, Youth & Family Services Act – child protection

In Ontario


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Standard of proof Criminal

court: beyond a

reasonable doubt

• No other reasonable explanation

Family court: on a

balance of probabilities• Whose story

is more believable?

Family law issues

Financial (spousal support)

Property division

Matrimonial home

Divorce, if married Safety

Arrangements, if there are children

Procedures for family courtRegulation - no way around them Dense but critical to understand

Failure to follow them can result in rejected documents

https://www.ontario.ca/laws/regulation/990114

https://www.attorneygeneral.jus.gov.on.ca/english/family/guides/fc/

https://www.ontario.ca/laws/regulation/990114

https://www.attorneygeneral.jus.gov.on.ca/english/family/guides/fc/


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For all family court cases

Applicant

Starts the case

Respondent

Person who must respond

When starting a case

Fees payable to the Minister of Finance

Contact the Family Court Office: some fees may be waived

Specific case considerations

Custody & access

Must contain an Affidavit in Support of Claim for

Custody or Access (Form

35.1)

Restraining order

Application & CPIC* Restraining Order Information

Form (see family court counter)

Case begun by notice of motion

Requires affidavit to provide evidence in

support of the orders requested

Property/support issues

Financial statement

must be filed

*Canadian Police Information Centre

Basic steps in a family court case

First appearance

Case conference

Settlement conference

Trial management conference

Trial

95 – 97% of cases will be

resolved without going to trial


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Online resources

https://familycourt.cleo.on.ca/ https://familycourtandbeyond.ca/

Changes to the Divorce Act

• Jurisdictional & cross-jurisdictional issues• Relocation of children• Enforcement of child support• Duties of legal advisors• Dispute resolution• Language changes• Family violence definition• Best interests of the child test criteria• And more

Significant changes:

Changes effective June 2020

https://familycourt.cleo.on.ca/

https://familycourtandbeyond.ca/


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Custody

Decision-making responsibility

Often also primary responsibility for the care of children

Access

Time children spend with other parent

Formal or informal; supervised or unsupervised

Sole custody

One parent makes decisions without consulting with other

Joint custody

Parents must consult one another about major decisions

• Eliminates terms “custody & access”

• Uses “parenting order”, “contact order”, “decision-making responsibility”, “parenting time”

Bill C-78/Divorce Act

• Continues to use “custody & access”

Ontario’s Children’s Law

Reform Act

Contact orderTime child

spends with someone

other than their parents,

e.g. grandparents

Grandparent rights

protection new for

federal law

Can set out how time is

spent: physically, telephone, Skype, etc.

To decide: best interests

of the child test


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Decision-making responsibility

Who can make

decisions about the children

One parent or shared

Whichever parent child is with has

authority to make

decisions at that time

Challenges for women who have

left abusive relationship

Parenting order

Replaces “custody order”, “access order”,

“custody & access order”

Assigns parenting

time & decision-making

responsibility

Parenting time

Time child spends in care of each parent

Includes time they are not

physically with parent

No distinction between custodial & access time

Parenting order example

• Mother shall have primary parenting time / child shall be primarily resident with mother

• Father shall have parenting time every other weekend, every Wednesday


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Family violence definition

“any conduct, whether or not that conduct constitutes a criminal offence, by a family member towards

another family member, that is violent or threateningor that constitutes a pattern of coercive & controlling behaviour or that causes that other family member to fear for their own safety or for that of another person

– & in the case of a child, the direct or indirect exposure to such conduct”

Family violence definition includesPhysical abuse• Including forced confinement • Excluding self defence

Sexual abuse

Threats to kill or cause bodily harm

to any person

Harassment, including stalking

The failure to provide the necessaries of life

Psychological abuse

Financial abuse

Threats to kill or harm an animal or damage property,

and

The killing or harming of an animal or the

damaging of property

Addresses these issues

Family violence can be dismissed by family court when there are

no criminal charges

“Pattern of coercive & controlling

behaviour”, fear: acknowledges insidious kinds

of abuse

Under-acknowledged

behaviours: sexual /

psychological / financial abuse;

abuse of animals


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Court to consider if there is family violence

The nature, seriousness & frequency of the violence

Pattern of coercive & controlling behaviour

Directed toward a child, child is directly / indirectly exposed

Physical, emotional & psychological harm / risk of harm to child

Compromised safety of the child / other family member

Child / family member fears for their safety or that of others

Steps taken to prevent further violence & to improve ability to parent

Best interests of the child test• Decisions about children have to be

child-focused • Each family is unique

“primary consideration to the child’s physical, emotional & psychological safety, security & well-being”

BIC criteriaChild’s needs

(stability)Child’s relationship with each parent,

other relatives

Parent’s willingness to support child’s relationship with

other parent

History of care Child’s views & preferences

Child’s upbringing & heritage, including

Indigenous heritage

Any plans for the child’s care

Ability & willingness of parent to care for,

meet the child’s needs

Ability & willingness of parent to

cooperate with other parent

Family violence & its impact on the abuser’s ability to care for child • Appropriateness of making an order

requiring cooperation

Civil or criminal issues relevant to well-being of the

child


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Maximum parenting time

“in allocating parenting time, the court shall give effect to the

principle that a child should have as much time with each

spouse as is consistent with the best interests of the child.”

Best interests

of the child test

Definition of family violence

PROS CONS

Revised Divorce Act

• Stronger legislation for women fleeing abuse

• Broad & comprehensive definition of family violence

• Detailed criteria for best interests of the child test

• Applies only to married couples

• Expensive to apply for a divorce

• Must want a divorce immediately

Children’s Law Reform Act

• Many women rely on it• Don’t have to be married• Less expensive

• Has not changed, will use “custody & access”

• Criteria for best interests of the child test remains same

Which is better?

Documents

After She Leaves · Custody & access Must contain an Affidavit in Support of Claim for Custody or Access (Form 35.1) Restraining order Application & CPIC* Restraining Order Information