Most separating spouses do not resolve their parenting, support, and property issues in court. In fact, Canada’s Divorce Act requires separating spouses and their lawyers to try to resolve these issues through an out-of-court process unless it is inappropriate to do so. This can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. These out-of-court options are referred to by the general term ‘family dispute resolution process’ (FDR). The most common forms of (FDR) processes, are negotiation, collaborative family law, mediation, and arbitration. This can be formal negotiation between lawyers or more informal negotiation between the parties themselves, with or without lawyers. Negotiation can occur when only one party has a lawyer, and the other party does not. Most separating couples try negotiation first before proceeding to other forms of FDR. Collaborative family law is a form of negotiation, that attempts … Read More
Limitation Periods in Family Law
A limitation period is the amount of time within which the law permits one to bring a legal claim or action. Claims started after a limitation period has ended can be barred. Under the Limitations Act, there is a general two-year limitation period. In family law there are several different limitation periods that prospective and current family law clients should be aware of. Under the Family Law Act, married spouses may make a claim for equalization of net family property within the earliest of (a) two years after the marriage is terminated by divorce or judgement of nullity; (b) six years after the spouses separate and there is no reasonable prospect that they resume cohabitation; or (c) six months after the first spouse’s death. The court may extend the limitation period for bringing an equalization claim, if it is satisfied that (a) there are apparent grounds of relief; (b) relief … Read More
Corona Divorce: Worldwide Increase in Divorce Rates and Inquiries After Coronavirus Quarantine
Divorce rates and inquiries have dramatically increased across the world because of lockdowns brought by governments intended to stop the spread of COVID-19. The stress of the pandemic, coupled with being confined in close quarters for weeks, added financial worries and increased childcare responsibilities are thought to be behind this increase. Back in March, Baroness Shackleton of Belgravia, one of the UK’s most eminent family law lawyers told her peers at Westminister: “The prediction amongst divorce lawyers is that following self-imposed confinement it is very likely that the divorce rate will rise.” She further noted: “”One only has to imagine what it’s going to be like when families are sealed in a property for a long period of time.” As China emerged from lockdown in March, numerous cities across China reported large increases in divorce filings. Specific numbers are not available as China only releases statistics on divorces annually. Saudi … Read More
Five Reasons Why You Should Choose Collaborative Divorce
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
Divorce: How are business assets split?
When parties separate, there are often disputes over one party’s entitlement to the other party’s shares or interest in a private or family business. If a marriage contract was executed validly, this contract may govern the splitting of business assets. Where there is no marriage contract, there is no specific method of valuating a business under the Family Law Act and parties should always be aware that different methods can result in different values with different tax consequences. Parties often hire two separate valuators and if both parties cannot agree, the issue will end up in the Family Courts. Entitlement to a share of the business Whilst a family business which has been inherited or gifted to one party may result in the business interest being exempted from matrimonial property, the value of a private business interest not inherited or gifted will fall presumptively into the category of matrimonial property … Read More
The Matrimonial Home: What Happens Post Separation?
The matrimonial home is often viewed as sacred ground for divorcing couples and disputes commonly arise over the ownership and possession of the property. In Ontario, special status is given to the matrimonial home due to it often being the most valuable and sentimental asset that a couple or family possesses. What is a ‘matrimonial home’? Section 18 of the Ontario Family Law Act defines the matrimonial home: “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and their spouse as their family residence”. Can there be more than one ‘matrimonial home’? There can be more than one ‘matrimonial home’ as long as at the date of separation, all of the properties are “ordinarily occupied” by the spouses as the “family residence”. The residence(s) being claimed as the ‘matrimonial home’ must … Read More
The Quickest Way To Get Divorced
With the first two weeks of January, following the Christmas and New Year holidays statistically the most common time for couples to file divorce proceedings, parties will inevitably want to know the quickest and most cost-effective route to obtaining a divorce. While there are routes which may aim speed up the process; unfortunately obtaining a divorce in Ontario tends not to be a speedy process. In order to obtain a divorce under the Divorce Act you must show that your marriage has broken down. You can obtain a fault or non-fault divorce. Non-Fault Divorce You and your partner have lived apart for one continuous year and consider your marriage to have ended. This still applies if you live in the same property, however you must be living separate lives i.e. not file taxes together, not sleep in the same bed, not attend social occasions together and not be supporting each … Read More
Four Things to Know About Common Law Relationships
1. Definition of Common Law Relationships There is no universal definition of a common law relationship. Federal and provincial legislation use differing criteria to define common law relationships. For example, Ontario’s Family Law Act, defines common law relationships as one where parties reside together for at least three years or where parties are in a relationship of some permanence and have a child. Whereas, under the Income Tax Act, a common law relationship is defined as one where parties are in a conjugal relationship and living together for at least twelve continuous months. 2. Spousal Support Common law spouses, like married spouses may be entitled to receive spousal support upon separation under Ontario’s Family Law Act. Once an entitlement to spousal support is established, the quantum and duration of spousal support is calculated based on the Spousal Support Advisory Guidelines. These guidelines determine the quantum and duration of support based … Read More
Gilbertson Davis LLP Welcomes Family Law Lawyer Kimberley Wilton!
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