Five Common Myths about Divorce

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Arbitration, Child Support, Collaborative Family Law, Custody and Access, Division of Property, Divorce, Equalization, Family Law, Separation, Separation Agreements, Spousal Support0 Comments

Both Spouses Need to Consent to Divorce In Canada, if one spouse wants to divorce, they do not need to seek their spouse’s consent to divorce. Canadian courts will grant a divorce under three grounds: if spouses have been separated from each other for a year without reconciling; if a spouse has proven adultery occurred during the marriage and they have not absolved their spouse; and if one spouse proved they received mentally or physically cruel treatment from their spouse. The Spouse Who Earns Less Income Always Receives Spousal Support Unlike child support, separated and divorced spouses do not have an automatic right to receive spousal support when their marriage ends. Separated spouses may be entitled to receive spousal support. There are several factors which give rise to an entitlement to spousal support. These factors include the length of the marriage or relationship, the roles each spouse played in the … Read More

Five Reasons Why You Should Choose Collaborative Divorce

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Child Support, Collaborative Family Law, Coronavirus, COVID-19, Custody and Access, Division of Property, Divorce, Family Law, Marriage Contracts, Separation, Separation Agreements, Spousal Support0 Comments

One: It’s Faster Traditional litigation can be a lengthy, time-consuming process, and it can take years to reach a resolution. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since mid-March 2020, the courts in Ontario have suspended regular operations due to the COVID-19 pandemic. While the courts have continued to hear emergency matters and have recently expanded their scope of operations, they will not resume normal operations until July 6, 2020 at the earliest. There inevitably will be a large backlog when the courts reopen. Most collaborative professionals, along with mediators and arbitrators, continue to work during the pandemic by offering their services virtually. Two: It’s More Economical Collaborative divorce often costs less than going to court. The court process is expensive, and its costs are unpredictable. Traditional litigation requires a lot of preparation, … Read More

The Impact of COVID-19 / Coronavirus on Family Law

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Child Support, Coronavirus, COVID-19, Custody and Access, Divorce, Family Law, Interjurisdictional Disputes, Mobility Issues, Separation, Separation Agreements, Spousal Support0 Comments

The current COVID-19 pandemic has dominated our working and private lives. It is not surprising that the pandemic has greatly impacted all areas of family law and has created unprecedented challenges for separated parents. Self-isolation and social distancing orders have presented a host of challenges for parents dealing with access and parenting arrangements. Many parents have lost jobs or suffered other economic losses during the pandemic which has left them unable to fulfill their current support obligations. An increase in domestic violence has been another unfortunate result of the pandemic, which may increase the need for restraining orders and peace bonds. While the Ontario Superior Court of Justice and the Ontario Court of Justice have suspended regular operations, they continue to hear urgent family law matters. The closure of the courts highlights the need for cooperation between parents and their counsel during these times. At Gilbertson Davis LLP, we have … Read More

COVID-19 / Coronavirus: The Ontario Superior Court of Justice Expects to Further Expand the Scope of Matters to be Heard Virtually

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Collaborative Family Law, Coronavirus, COVID-19, Custody and Access, Divorce, Family Law, Hague Conventions, Separation0 Comments

On May 5, 2020, the Ontario Superior Court of Justice issued a Notice to the Profession, Litigants, Accused Persons and the Media advising of the Continued Suspension of in-court matters to July 6, 2020. This Notice further advised the Superior Court will continue to hear matters virtually and expects to shortly further expand the scope of matters that will be heard virtually. On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled family law hearings were adjourned until further notice. However, the Ontario Superior Court of Justice continued to hear urgent family law matters such as: requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); urgent issues that must … Read More

COVID-19 / Coronavirus: Access to children with additional health risks

Elisha Hale, LL.B (Hons) Dip.COVID-19, Custody and Access, Mobility Issues, Separation0 Comments

Sharing custody of a child or children can be difficult at the best of times. With the additional stress of the COVID-19 crisis, shared custody and access adds further strain to this relationship. Parents are forced to make difficult decisions about their child’s wellbeing  while balancing parenting arrangements often ordered by the courts, and additional challenges posed by mandatory public health protocols. Parents with children who have additional needs or are at increased risk of exposure to COVID-19 are likely to face additional difficulty during this crisis with the court becoming involved where parties cannot resolve their conflicting views. Many parents have sought to suspend access or seek sole custody of their child during the crisis, citing fears for their child’s health. The onus is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with … Read More

COVID-19 / Coronavirus and Family Law: Parenting Arrangements when Parents are Essential Workers

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Coronavirus, COVID-19, Custody and Access, Divorce, Family Law, Mobility Issues, Separation0 Comments

Co-parenting can be challenging during the best of times. Co-parenting during a pandemic presents a host of additional challenges. Today, parents are placed in the challenging position of having to continue to abide by their current parenting arrangements, ensuring the health and safety of their children and family, while also following public health directives. It is not surprising that during this pandemic, parents who are front-line or essential workers may face additional challenges with their parenting arrangements. Out of concern that a parent who is an essential or front-line worker may place the children at an increased risk of being exposed to COVID-19, the other parent may seek to limit or suspend that parent’s access to the children. Fortunately, the courts have released several decisions during the past month which have dealt with this very issue and which provide some guidance for parents facing similar challenges. In A.A. v R.R., … Read More

Parenting Issues During COVID-19 / Coronavirus

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Coronavirus, COVID-19, Custody and Access, Divorce, Family Law, Interjurisdictional Disputes, Mobility Issues, Separation, Separation Agreements0 Comments

In these uncertain and unprecedented times, parenting issues have been by far the most prevalent and pressing concerns in family law. Restrictions on international travel, limitations on domestic travel, the closure of supervised access centres and public health directives have all disrupted parenting orders and agreements. Parents are placed in a difficult position of having to continue to abide by their current access arrangements, whether that be a court order, formal written agreement or informal agreement, while ensuring the health and safety of their children, and family, and following public health directives. While the Ontario Superior Court of Justice and the Ontario Court of Justice have suspended regular operations, they are still hearing urgent family law matters. There has been a slew of decisions released in the past few weeks which specifically deal with custody and access issues during the pandemic. Over seventy percent of urgent matters the court dealt … Read More

COVID 19 / Coronavirus-Blended Families

Elisha Hale, LL.B (Hons) Dip.Custody and Access, Family Law, Mobility Issues0 Comments

Given the current COVID-19 crisis, many families may be struggling to adjust to alternative custody and parenting arrangements, especially with blended families.  Although emotions may be running high and current arrangements not ideal, the case law has been clear: “None of us know how long this crisis is going to last.  In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved.  But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. “ In Ribeiro v Wright, 2020, ONSC 1829 the separated parties had joint custody of their son since 2012.  The son had always resided primarily with the mother, with the father having access on alternate weekends. The father, prior to the COVID-19 outbreak, had brought a motion to increase his parenting time, however this had not yet been … Read More

COVID-19 / Coronavirus: Varying child support or spousal support obligations

Elisha Hale, LL.B (Hons) Dip.Child Support, Coronavirus, Custody and Access, Family Law, Spousal Support0 Comments

Given the recent COVID-19 crisis, the circumstances of many individuals may have changed. As a result, spouses or parents may be looking to vary their child support or spousal support obligations. In Ontario, you can file for or change child or spousal support through the court, or by a written agreement. By Motion to Change Where a party applies to the court to change child or spousal support, the moving party i.e. the party who brings the application, must show that there has been a change in material circumstances.  Such material circumstances may include a reduction in income of the paying spouse, loss of employment or evidence of undue hardship. Spousal Support Once a court makes a spousal support order, either spouse may  bring a motion to change to decrease or increase the  quantum of support.  A material change of circumstance may apply if one spouse subsequently remarries and therefore changes their income and … Read More

COVID-19 / Coronavirus: What Constitutes an Urgent Family Law Matter?

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Coronavirus, COVID-19, Custody and Access, Division of Property, Divorce, Family Law, Mobility Issues, Preservation Orders, Separation0 Comments

On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled family law hearings were adjourned until further notice. Similarly, as of March 20, 2020 the Ontario Court of Justice adjourned all scheduled family law hearings until May 29, 2020.  Both courts continue to hear urgent and emergency family law matters. According to the March 15, 2020 Notice to the Profession, the Ontario Superior Court of Justice will only hear urgent family law matters such as: requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); urgent issues that must be determined relating to the well-being of a child including essential medical decisions or issues relating to the wrongful removal or retention of … Read More

Divorce and Separation: Who gets the family pet?

Elisha Hale, LL.B (Hons) Dip.Commercial, Custody and Access, Division of Property, Separation, Separation Agreements0 Comments

Upon separation or divorce, a contentious issue is often which party gets to keep the family pet. Despite furry friends often being just as important to the family as children, Ontario’s courts have refused to make custody orders in respect of family pets. Justice Timms in Warnica v Gering stated “Whether in the Family Court or otherwise, I do not believe that any court should be in the business of making custody orders for pets, disguised or otherwise…  Obviously, I acknowledge that pets are of great importance to human beings.  Strong bonds develop between them and the human beings that look after them.  To some people, the relationship with their pets takes on a significance exceeding that of any other.  They go to extraordinary lengths to preserve that relationship; even at a cost that some would say is disproportionate.  Some may consider them to be children; however, they are not children.” … Read More

COVID-19 / Coronavirus: Alternatives to Family Court

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Alternative Dispute Resolution (ADR), Arbitration, Child Support, Collaborative Family Law, Coronavirus, COVID-19, Custody and Access, Division of Property, Family Law, Separation, Separation Agreements, Spousal Support0 Comments

As of March 17, 2020, the Ontario Superior Court of Justice suspended all regular operations for an indefinite period. Similarly, as of March 20, 2020 the Ontario Court of Justice suspended all regular operations until May 29, 2020. Both courts continue to hear urgent and emergency family law matters. Without access to the courts, family law litigants can still avail of a number of different options to resolve their family law disputes. Indeed, there are numerous forms of alternative dispute resolution (ADR). With consent, parties at any stage of litigation can agree to settle their issues outside of court with ADR. These processes can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. Collaborative family law is an out-of-court resolution process which puts families first. With collaborative practice, parties work together, with their lawyers and other neutral professionals, such as family professionals … Read More

COVID-19 / Coronavirus: Can I take my child out of the province or out of the country?

Elisha Hale, LL.B (Hons) Dip.Custody and Access, Divorce, Family Law, Separation0 Comments

Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz,  which developed a two-fold test to determine whether the move should … Read More

Cyberbullying in Family Law

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Custody and Access, Division of Property, Divorce, Family Law, Spousal Support0 Comments

Cyber-bullying is a growing concern in family law litigation. Some provinces already have legislation to deal with such issues. While Ontario currently does not, in recent years Ontario courts have recognized new common law remedies to address these issues. In Yenovkian v. Gulian, 2019 ONSC 7279, Justice Kristjanson of the Ontario Superior Court of Justice recognized the act of publicly placing a person in a false light as a new cause of action under the tort of invasion of privacy. Yenovkian involved an extremely acrimonious separation and custody dispute involving two children, one of whom has special needs. Shortly after separating in 2016, the Respondent, Ms. Gulian, took the parties children to England and refused to return to Ontario. The Applicant, Mr. Yenovkian, engaged in a cyberbullying campaign spanning several years against his estranged wife. This campaign included videotaping court-ordered access visits with the children, without the children’s knowledge and … Read More

Six Ways to Get an Annulment in Ontario

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Child Support, Custody and Access, Division of Property, Divorce, Family Law, Spousal Support0 Comments

Civil annulments are uncommon in Ontario as most separating spouses in Ontario choose to get a divorce. Annulments deem a marriage invalid, rendering the marriage null and void, as if it never happened. Essentially, an annulment means your marriage never occurred in the eyes of the law. Annulments are granted under a few specific grounds: 1. One of the spouses does not have the capacity to marry or could not consent to the marriage. Section 7 of Ontario’s Marriage Act states no one shall issue a licence to or solemnize the marriage of any person who lacks the mental capacity to marry by reason of being under the influence of intoxicating liquor or drugs or for any other reason. Predatory marriages, where a financially motivated person marries an elderly person to gain access to and control over their property, assets and estate, can fall under this category if the victim … Read More

Child Custody and Access in Ontario

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Custody and Access, Divorce, Family Law, Separation0 Comments

What is Custody? Custody refers to the ability of parents to make major decisions concerning health, education, and religion in their children’s lives. Types of Custody Arrangements in Ontario Sole custody means that one parent makes most of the major decisions in the children’s lives. However, the non-custodial parent usually has the right to be given information and make inquires about the welfare, health and education of the children. Joint custody means both parents share the ability to make major decisions in the children’s lives. For joint custody to be successful, parents need to be able to cooperate and communicate with each other. With joint custody, the children may primarily reside with one parent or the children may live equal amounts of time with both parents. Shared custody is a form of joint custody where the children spend at least 40% of their time with each parent. The children have … Read More

Gilbertson Davis LLP Welcomes Family Law Lawyer Kimberley Wilton!

John L. Davis, B.A. (Hons.), J.D.Adoption, Child Support, Collaborative Family Law, Custody and Access, Division of Property, Divorce, Family Law, Gilbertson Davis LLP News, Interjurisdictional Disputes, Marriage Contracts, Mobility Issues, Spousal Support0 Comments

Gilbertson Davis LLP extends a Warm Welcome to Family Law Lawyer Kimberley Wilton.  Kim was called to the Bars of Ontario, Newfoundland and Labrador in 2013, after obtaining her Doctor of Jurisprudence degree from Dalhousie University (2012; Schulich School of Law), a B.Sc. (Hons.) degree from the University of Toronto (Psychology and Middle Eastern Studies; 2006) and a B.A. degree from Memorial University (English Language and Literature; 2009).  Kim is also certified as a Collaborative Family Law Lawyer.   Kim is passionate about the provision of client service to a standard of excellence.  She has experience in a broad range of Family Law matters, including contentious custody and access disputes, child and spousal support claims, complex property disputes including the division of assets, adoption applications and mobility issues. She is also experienced in drafting parenting plans, separation plans and domestic contracts.  Kim is sensitive to the specific needs of each client, … Read More