arrowRECENT BLOGS
Separation - Who Should Move Out?
Mediation and Arbitration in Divorces
Establish a Will or Trust to Ensure Your Wishes Will Be Executed
How Public Policy Can Affect A Will
Paternal and Maternal Abandonment
Parental Alienation Syndrome
Parental Responsibility
Marriage Trends
Divorce and Children
Pet Custody
Alimony and Palimony
Financial Separation
Family Violence
Separation Agreements
Adoption
Child Support
Discipline and the Courts
Parenting Plan (Part 2)
Parenting Plan (Part 1)
Divorce, Separation and Annulments
The Importance of Financial Agreements in relationships
Common Law Separation
Child Custody
Annulment of Marriage
Marriage Separation
Case Conferences - What's the Purpose?
Family Law Statutes Amendment Act, 2009
Changing a Child’s Name
Restraining Orders
Child Custody and Access Applications
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Separation - Who Should Move Out?

Posted by Avery Zeidman | Published Dec 29, 2015

Ending a marriage is an extremely difficult decision, and the process of separation/divorce is a stressful and arduous one. Inevitably, emotions play a large part in interactions and decision making at this time. However, once the final decision is made, it affects everyone in the household.

There are many reasons people give for desiring a separation, including, infidelity, financial issues, immaturity, a narcissistic spouse, lack of trust, growing apart, loss of passion, and so on. Whatever the reason, when a marriage has reached this point, there are many decisions that need to be made. One of the most pivotal issues to be decided, is future living arrangements. That is, who can stay and who must move out.  

Before any decision is made to leave the matrimonial home, you are well advised to contact a family lawyer at the Zeidman law offices. We offer a confidential platform on our website to ask any questions you may have pertaining to your case. Our accommodating staff can also be contacted at any time.

In Ontario’s Family Law Act, a married couple has equal rights to the matrimonial home. That means neither spouse has the authority to remove the other from the home, regardless of who legally owns the property. Please note that this does not apply to common-law relationships.

After consulting with your family lawyer, if an amicable decision about leaving the house still cannot be agreed upon by both parties, this determination must be decided in the courts. The following factors are taken into consideration in this decision.

  • any pre or post contractual obligations between the married couple

  • whether there is any physical abuse against a spouse or any other members of the family, particularly children

  • the financial standing of each spouse

  • other viable options for relocation for either spouse

  • how the proposed separation would affect any children in the matrimonial home

Because each spouse has legal rights to the house, a spouse who does not occupy the property may be legally entitled to receive “occupation rent”. This term refers to the obligational market value rent that the spouse who remains in the home has to pay the spouse who has moved out, over the period of time from the separation until the property is sold or disbursed.

Some of the issues weighed when awarding occupation rent to a spouse are:

  • the length of the time elapsed before requesting occupation rent

  • whether or not financial obligations such as spousal/child support, mortgages, etc. are being paid

  • the behavior and conduct of both the occupying and non occupying spouse

It is important to speak to a family lawyer at Zeidman Law Offices, to understand your legal rights during this time. We cannot stress the significant and negative impacts your actions can unknowingly have on your rights, both as a spouse and a parent. For example, the issue of children living in the matrimonial home.

Generally, spouses may agree, according to specific circumstances, that any children should be left in the home to help them with the impending transition from a two parent family to a one parent family. However, one spouse may feel that leaving the house may negatively impact their parental rights, sometimes even going so far as removing the children from the home.

This action is not favored in the courts and can have serious repercussions if the occupying spouse requests the return of the children. Removing children from the family home where they typically feel more secure is viewed as inappropriate and not in the best interests of children, unless there are harmful circumstances associated with remaining in the family home.  

If a spouse is considering leaving the home, he/she should ensure that a written and signed agreement is in place concerning his/her access to the children. Leaving without this in place can lead to a negative light being cast on any future efforts to gain substantial time with their children. The courts generally favor making as few changes to children’s lives as possible, unless there are issues involving abuse.

The following issues should be considered when planning a separation:

  1. If there is continuous conflict and there are children living in the matrimonial home, a physical separation may be advisable.

  2. When considering who should move out, it is important to have an open and respectful dialogue with your spouse. Issues to be weighed are: whether or not the two of you get along reasonably well within the home, whether another living space is affordable and available, where the children would most likely reside in the future and whether either of you will keep the home after the separation.

  3. There is no legal requirement to inform your spouse that you are moving out and sometimes, it may be easier for all involved if it happens when they are not at home. This choice is entirely dependent on your personal situation. However, you should speak with your family lawyer before moving out of your home.

  4. Some of the documents you should take with you or make copies of when leaving the matrimonial home are your marriage certificate, passport, medical prescriptions, insurance cards and tax returns.

  5. If there are any joint accounts, it is advisable that you request a dissolution from the bank. Because you do not want to be held financially responsible for any new purchases incurred by your spouse. If making a necessary withdrawal, do not take more than half of what is in the account.  

Deciding on where to live after a separation can be difficult. Decisions are usually emotionally fueled and can have lasting repercussions on all those involved. If you are considering getting a separation/divorce or are already separated, please call us today at Zeidman Law Offices, for a consultation that can help streamline the resolution of this period in your life.

 

Mediation and Arbitration in Divorces

Posted by Avery Zeidman | Published Dec 15, 2015

Divorce and separation can be emotionally and financially draining for all involved. Getting through it civilly can be very challenging and it is important you know what resources are available to help you through the process. Mediation and arbitration are alternative, and in many ways less complicated methods of resolving a divorce or separation.

There are many significant benefits to employing alternative dispute resolution (ADR) methods such as mediation or arbitration. The most common are, it is often cheaper than going to trial and including the courts, it is often quicker, there is greater privacy, particularly in the case of mediation which is often closed and finally, the parties have a greater measure of control in what the outcome will be.

Mediation can be very helpful during a divorce and/or separation.  It is an alternative form of dispute resolution that aims to have opposing parties have their issues voiced in a controlled and amicable manner.  It is especially helpful for divorcing couples with children who will be affected by the split.  During the course of mediation, adults can also learn and apply certain skills that are beneficial for maintaining positive and appropriate communication after the proceedings. Mediation has many advantages and in most cases, the parties involved usually comply with the terms settled on, as it usually includes mutually agreed upon resolutions.

A divorce and/or separation mediation process is often handled by a family law mediator. This individual is a specialized and licensed neutral third party who helps couples come to a satisfactory agreement. They help guide individuals to a resolution by informing them of how they could be affected legally and help brainstorm realistic resolutions to resolve any areas of conflict.

They do this by allowing one party to speak at a time, helping each party depersonalize the issues and even at times requesting a caucus. That is, where each party is alone with the mediator in order to express their needs. This is all achieved through a series of meditation sessions. It is very important to note that mediators do not give legal advice nor do they make decisions. Their role is simply to facilitate a way for a resolution. They also cannot enforce any decisions agreed upon by the parties involved.

Mediations are usually closed. This simply means that nothing discussed in the session can be repeated during trial. It is advisable that each party speak with their lawyer before a mediation proceeding. Do not sign or agree to any resolutions without first discussing it with your family law attorney.

It is also important to remember that a mediation is only truly effective if there is no imbalance of power between the two parties.  Participants are usually screened to detect any evidence of abuse or violence prior to the mediation.

Arbitration is another form of dispute resolution. It is different from its more informal counterpart mediation, in that it is conducted in a more formal setting, where a legally binding decision is made and has to be adhered to by involved participants who would have agreed to certain irreversible conditions beforehand. It is a cheaper and faster process that most closely represents an actual trial.

An arbitration agreement encompasses:

  • who the arbitrator will be

  • issues to be addressed

  • agreement to waive the right to go to trial thereafter

  • a convenient time for the arbitration

It is important that both sides make all their demands and issues known in the arbitration agreement, because a decision can only be rendered on issues set in the agreement. An arbitrator is also a neutral third party and is helpful in resolving issues such as child custody. In this specific issue, they look primarily at what is best for the child/children involved and they are governed by the Children’s Law Reform Act (R.S.O. 1990, c. C. 12).  For more information on arbitration and mediation, visit here.

When divorcing or separating, it is important that you seek counsel from an experienced family attorney. A Zeidman family lawyer can help guide you through the legalities surrounding this trying time in your life. You should be aware of your rights and responsibilities and how any legal decisions you make can affect your life moving forward.

In Ontario, certain criteria has to be met in order to be eligible for a divorce. First, you must be legally married, two, there must be no possibility of reconciliation (e.g. you no longer live together or do not intend to) and three, you or your soon to be ex-spouse must have lived in the province for at least a year before filing. If you need more information about resources available to you in Ontario concerning divorce or any aspect of family law, click here.

Divorces can be long and drawn out emotional processes, as well as financially draining.  Let one of the lawyers at Zeidman Law and their supportive staff help you come to a mutually beneficial resolution for all involved. We have years of experience in representing families across Ontario in their family law matters, such as custody placement, spousal support, restraining orders, cohabitation agreements, divorce, separation and child support.


If you or a loved one are thinking about or planning to move ahead with a legal separation or divorce, please do not hesitate to call or visit us today. We will be happy to provide a free consultation to hear you out and offer you advice on your best legal options.

Establish A Will Or Trust To Ensure Your Wishes Will Be Executed

Posted by Avery Zeidman | Published Nov 04, 2015

Simply put, a will is a legal document that contains the directives for your property and/or any minor children that were in your care before your death. It is read by an officer of the court and specifically and most importantly names:

  • Your executor (someone who will manage and carry out the desired distribution of your property and any other instructions that you may have left).

  • Your beneficiaries (any person you want to bequeath your property to) as well as guardians for your children.

It is important to speak with a professional and experienced family lawyer to help determine your settlement choices, as well as help you plan for the future. They can help you decide what is best for you and your family.

If you die without a valid and legal will in place (referred to as intestate), the Ontario's Succession Law Reform Act will then dictate how your property will be distributed. If there is no claim from a financial dependent, then the first two hundred thousand dollars will be appropriated to the spouse of the deceased (if claimed).

Any amount over two hundred thousand dollars is governed by specific rules and shared among descendants and the spouse. If a spouse is deceased, their children stand to inherit their property and if their children are deceased as well, then their grandchildren are next in line, and so on and so forth. If the deceased has none of the above dependants, their estate can be awarded to their parents equally.

At Zeidman Law, our family lawyers always stress the importance of having a legal will in place.  Many people put it off for later in life but as death is quite often unpredictable, having your affairs in order is the only way that you can be sure that your wishes will be carried out before and after death.

There are other options available to individuals who would like their assets to be distributed in a certain way. A trust is a financially prudent option to estate planning. It allows a third party (also known as a trustee) to hold assets for beneficiaries.

There are two main types of family trusts - living trusts and testamentary trusts. A living trust, also known as a revocable living trust, allows you to make any changes to it while you are alive.  It dictates how your assets should be managed after your death or if you are incapacitated and cannot make these decisions for yourself.

A testamentary trust, also known as a will trust, comes into effect after the death of the divisor or testator. It is part of a will and is subject to different types of taxation. The 2014 budget announced that as of January 1st 2016 taxes on incomes in this type of trust would increase (the highest tax rate would be applied based on province).

Some of the advantages of having a trust are:

  • It allows for some measure of privacy by allowing certain assets to be handled outside of probate, which would also decrease the associated costs and taxes. If you would like your assets to be kept private, a trust is a sure way to keep certain matters off of public record.

  • With a trust, you control how and when your assets are distributed. A trust is in effect from the date it is legalized, meaning that your death is not a prerequisite.

  • A trust can also protect your assets from your beneficiary’s creditors and control how they spend the money you have left them. You can also dictate how your property should be used and/or shared, thereby maintaining it as you see fit even after death.

It is important to know what type of estate planning is best suited for you. This is a decision that impacts both you and your family and it is wise to be well-informed. Family battles regrettably occur quite often after a person dies, which is why it is prudent to be well prepared and create a legally sound and clear record of your wishes for the distribution of your estate.

At Zeidman law, our family lawyers are well experienced in helping our clients in all legal matters pertaining to family law. Our fully accommodating staff ensures that you are well informed and satisfied with the decisions that you have reached. As you judiciously plan for your future, we are here to help make this process easier for you. Please call or visit us today.

How Public Policy Can Affect A Will

Posted by Avery Zeidman | Published Oct 07, 2015

A will is a legally binding document that among other things, allows a person to decide how they would like their assets disbursed after their death and also dictate the appointed guardians of any children that may suffer their loss. It is very important that individuals have a will in place because the future is uncertain, particularly with respect to accidental death.

Young or old, it is essential that individuals take the necessary steps to ensure that their wishes are followed in the event of their death. In the absence of a will, it will be left up to the Courts to best decide how our assets and dependents should be managed. For more general information about wills, visit here.

The case of Spence v. BMO Trust Company has brought to light the role that public policy can play when formulating and executing a will. In this case, the will of a seventy-one year old deceased black Jamaican-born minister was challenged when he left his entire estate (worth around $400,000.00) to a fifty-two year old daughter he hadn’t seen in fifty years, as opposed to the fifty-one year old daughter who grew up with him and he gave accolades to, until her pregnancy.

Eric Spence the father of the two daughters, Verolin and Donna, died in January of 2013. When he separated from their mother, his daughter Verolin Spence remained with him, while his other daughter Donna Spence, left with her mother. After the separation, Donna did not have any contact with her father or sister and vice versa.

Five years after Eric migrated to Canada, Verolin followed, after completing her studies in London.  In Canada, she continued her studies with some financial help from her father who was quite proud of her. Evidence showed that they had a strong relationship during this time. In 1992, he drew up a will that bequeathed her his home upon his passing.

Allegedly, in September of 2002 everything changed, when Verolin informed Mr. Spence that she was pregnant with a Caucasian man. He made it clear that he was ashamed of her, proceeded to minimize communication with her and did not claim her biracial son as his legitimate grandchild. In May of 2010 he changed his will, citing specifically that Verolin had no communication with him for years and did not maintain a relationship with him.

Verolin beseeched the Courts to set aside her father’s last remaining will on the basis that it violated public policy and was therefore void. Her evidence to support this claim included an affidavit from a close friend of Eric’s wife who said that he told her on more than one occasion that he had disowned his daughter Verolin because the father of her son was Caucasian.

Estate trustee BMO argued that the wording of the will bore no such racial categorization and that public policy should not be applied in the case. They allege that the will was formulated based on the estrangement between father and daughter and not discrimination.

Verolin’s lawyer countered by pointing out many other cases where evidence beyond the expressed written word in a will had been used to determine whether or not the will had violated public policy. The Court agreed with Verolin and based on the unchallenged evidence of her father’s blatant racism, the will was set aside and the estate was ordered to be split between the two daughters.

This decision is being appealed by Donna Spence and BMO. They insist that the will should be reinstated and that the Courts should not interfere with a person’s wishes after their death. They believe that it would be setting a bad precedent and people’s “reasoning” would come under constant scrutiny, thereby diminishing the entire purpose of a will.

At the Zeidman Law offices, our Vaughan family and divorce lawyers have the experience and professionalism needed to represent your issues in court. We are readily available to assess your case and will help you resolve the best course of action given your unique situation.   You may call, come to our offices or visit us online to begin the process.

 

 

Paternal and Maternal Abandonment

Posted by Avery Zeidman | Published Aug 22, 2015

A mother’s love knows no bounds. It is said that there is nothing in the world that can be compared to it and millions of women across the globe would probably agree. However, this by no means minimizes or lessens the importance and essential role that a father also plays in his child’s life. A man’s role in the family and his influence on his child’s life is incalculable.

.Society’s responsibility to its children is an ongoing issue that is highly debated. Many argue different points about the rearing of children, as well as the type of family structure that is required to produce healthy, happy and well adjusted children. Technological advancements have made the choice to have a child without a father figure easily available through sperm donors and artificial insemination.

One of the most important influences of a father on his children is how his behavior moulds their perception of what a man should be. The way he treats the mother of his children indirectly influences and suggests to his children how women are to be treated, how to deal with conflict, etc. Paternal abandonment is self explanatory; a father who deserts his child and has little to no constructive contact with them. The absence of a father can have many far reaching negative effects on a child’s psyche.  

Studies conducted in the United States added “father-deprivation” to many societal problems in children. A few common detrimental behaviors like running away, suicide and being institutionalized (psychiatric) were common amongst children who had no fathers present in their lives. Many who were troubled also succumbed to negative and criminal acts, such as rape and murder.

A U.K. study by the Institute for the Study of Civil Society Civitas also backed up the US findings, showing the staggering statistics below for children who grew up fatherless. They are:

 

  • nine times more likely to drop out of school

  • eight times more probable to end up in prison

  • ten times more likely to abuse controlled substances

  • twenty times more probable to have serious behavioral issues

 

Though not as widely reported as cases involving paternal abandonment, maternal abandonment follows a similar pattern. As a mother withdraws, whether physically or emotionally from her children, she leaves a multitude of emotional, psychological and mental issues in her wake. By refusing to take responsibility of her children, she cuts off a significant and imperative relationship necessary to mould a child from the onset.

This type of child abandonment leads to:

  • feelings of worthlessness

  • confusion about why their mother is not around

  • feelings of guilt (thinking it’s their fault somehow)

  • inadvertent isolation and fear of abandonment (fearful of bonding with other anyone, especially adults)

 Relationships take a lot of work and commitment. However, life is also very uncertain and sometimes will not always work out the way it was initially intended. Families split up, men or women abandon and shirk their responsibilities and often children are the ones who are caught in the imbalance.

The conflict that occurs when a relationship fails between parents is a very common one and children are quite often the ones who are hurt irreparably. Men are often blamed and seen as the irresponsible ones and many argue that mothers are given favorability by the courts.

At Zeidman Family Law, we are aware of how delicate divorce and separations can be in your life.  Our experience and empathy helps us guide all of our clients through the legal maze that governs child custody, child access, child support, spousal support, divorce, domestic contracts, division of property and more.

Every case is different and we see our clients the same way.  At Zeidman Family Law, our professional and experienced Ontario lawyers view our clients as people who need our help and expertise during a time that can be tumultuous and highly emotionally charged.

Visit us online or call us today for a free initial consultation and allow us to help you through this time. We welcome all questions and concerns that you may have and look forward to offering our expertise in having a successful resolution to your case.

 

 

Parental Alienation Syndrome

Posted by Avery Zeidman | Published Jul 28, 2015

Parental Alienation Syndrome (PAS) as defined by American Psychiatrist, Richard A. Gardner, is a disorder in a child which causes them to express hostility frequently to one parent, often without a specific cause or justification.

This behaviour can occur for many reasons.  It is most commonly the result of one parent intentionally influencing and feeding a child negative information about the other parent, or preventing the child spending time with the other parent as a form of punishment (essentially brainwashing the child into forming unsavory opinions about the other parent).  This is most often done during custody disputes/litigation surrounding separation and divorce.

Children typically need and want both parents in their life.  When parents are separated or divorced a child rarely ever gets the quality time that would have usually been present in the communal home.  The parent who has primary custody may now have additional responsibilities which would require him/her to be away from the home and the parent who has access to the child on the weekends may not be able to have a quality relationship within that short period of time.

Prominent studies have shown just how detrimental parental alienation is to a child.  Behavioral, emotional and cognitive impairments manifest themselves in the child and some of the effects that were documented include increased suicidal tendencies and extreme misconduct.

There are some cases where the court system can fail a family.  In a past case, a six year old boy was assigned to live primarily with his father.  His mother who lived less than a ten minute drive away from him was awarded visitation rights but they were not enforced by the courts when her ex-husband made frequent excuses to not uphold her allowed visitation dates.  (He was a criminal lawyer and his ex-wife alleged that there had been favoritism towards her husband in the handling of the entire custody battle which lasted for twelve years).

The young boy started showing signs of distress not long after the divorce and separation from his mother.  By the time he was nine he was threatening suicide and becoming increasingly hostile towards his mother.  He was sixteen when he jumped to his death off a Vancouver bridge.

PAS is a recognized affliction across the globe and Parental Alienation Awareness Day was recognized in 2015 on April 25th in Canada.

If your child suffers from PAS, below are a few tips on what you can do to safely help your child.

 

  • PAS is a form of emotional child abuse and educating yourself about this affliction will help you combat it in the most effective way possible.  This is the most important step. By conferring with a mental health professional, you can aid in your understanding of this disorder and learn how to best cope and foster positive interactions with your child.

  • Inform the courts and your lawyer of any parental alienation and do your utmost to ensure that they take the necessary steps to stop and remedy the situation.  Do your part in presenting all the information you have collected (for example, document specific dates that the child was/wasn’t visited) and be vigilant in the way your case is processed (to help avoid unnecessary and constant delays).

  • Have patience with your child.  As much as they may lash out at you and say hurtful things, they are simply expressing the feelings that arise from a deep sense of hurt, separation anxiety and other damaging emotions.  It is not their fault; they simply do not know the appropriate way to communicate their feelings during this time.  Speaking to a psychiatrist, psychologist or counsellor can help.

  • As much as you may be attacked by your ex, try to take the high road, as an equally negative retaliation may further damage your relationship with your child.

At Zeidman, our family law practice has handled many cases that have involved some sort of parental alienation.  We recognize how serious this problem is and support our clients in working towards minimizing its impact during and after a separation or divorce.

Contact our experienced staff today online or call us for a free initial consultation.

Parental Responsibility

Posted by Avery Zeidman | Published May 31, 2015

As a parent, you are expected to raise and guide your children along the right path morally and legally.  With the family dynamic constantly changing in Canada, the “right way” is sometimes challenged and the ripple effect from the decisions and actions taken within the family unit can impact the behaviour of children in a hugely negative manner.

Here in Canada parental liability laws are constantly being debated in an effort to hold parents both civilly and criminally responsible for the behavior of their children. 

In civil litigation, the parents of a child (or minor living with the parents) can be held vicariously liable for any damages or losses caused by their children.  It can usually be applied in cases where a duty of care is breached but that within itself are an uphill battle.  The plaintiff has to prove that a parent should have or could reasonably have known about the actions of their child and did nothing to alter it.  An example is a minor who causes an accident with the family car.  The car and insurance is registered under the parent’s name and therefore their responsibility.  Many issues come into play for example how accessible were the keys and was the child verbally forbidden to drive the vehicle, had they driven it in the past, was anyone present when they took the car, etc

Many people have had issue with this vicarious liability placed on parents and see it as an unfair punishment against parenthood.  They believe that a parent can only, within reason, be responsible for the actions of their child.  Actions taken outside of the home, against their rules or without their permission are going beyond the scope of reason and seeking perfection in parenting which is not attainable. 

Some parents also believe that it violates their Charter rights by practically punishing them for the actions of their child; essentially being convicted of an action they did not commit.  An example of this is with Canadian retailers The Bay and Zellers.  Their legal team would send notifications to the parents of accused shoplifters informing them of monetary payments that they were responsible for rectifying as a result of time and manpower spent on resolving the attempted theft by their children.  These letters were dispatched whether or not the child was convicted of shoplifting.

The purpose of this type of liability is to encourage the positive involvement of parents in their children’s lives and to decrease the delinquent behavior that they often feel drawn into.  Many have argued that this marginalizes any type of family structure that is outside of the norm (single parent families especially) who may not be able to provide the constant supervision of children in the household.

In Ontario, the Parental Responsibility Act 2000 attempted to govern this issue; it dictated that the owner of property damaged by a minor under the age of eighteen can attempt to hold said minor’s parents legally responsible in the Small Claims Court. 

A parent would have to prove that the damage done by their minor child was not caused by deliberate and calculated actions and that sufficient supervision and structure was given to the child to prevent such acts from being initiated.

An example is in the case of Shannon v. Westman.  A fourteen year old boy (Jeremy) was hired to babysit a ten year old (Tyler) and at Jeremy’s prodding, they broke into a house and stole some items.  After being caught, they returned some pieces but not all of the stolen property was recovered. 

The owner of the house that was broken into sued both the children and their parents in an attempt to seek restitution for the unrecovered items through the Parental Responsibility Act.

As mentioned before, the Parental Responsibility Act requires proof that the act was deliberate and that the parents of the minors were irresponsible, and therefore liable, with their action/inaction. 

During the trial it was noted that this was not the first time that Jeremy babysat Tyler.  In these previous occasions, there had been no incidents of mischief and there was systematic instructions left for both boys about their behaviour, limitations and what was expected of them. 

The Judge felt that this type of structure met the criteria that was required in the Parental Responsibility Act and dismissed the action against the parents but upheld the action against the children since they admitted to the theft.  The homeowner was awarded damages which were reduced to allow jurisdiction in a Small Claims Court.

There is a fine line of culpability and responsibility that parents will bear for their children when it comes to tort law.  Providing a strong family structure does not guarantee that you will not be held liable; it is truly dependant on what can be proven in court.

If you require the services of a family lawyer or divorce lawyer, be sure to contact us at Zeidman Law and have your first consultation free of charge. 

Marriage Trends

Posted by Avery Zeidman | Published Apr 28, 2015

Marriage is a goal for some people and a simple inevitability for others.  Whatever the reason, marriage is an institution built not just on vows and religion; it is an economic and financial decision that impacts the rest of your life.

The intent is usually to go through the process once but there are times when this cannot be done for various reasons (including death).  It is becoming more and more common for marriages to end in divorce and often people decide to give it another try and get remarried to someone new, or even the same person.

Recent trends have shown that the marriage rate in Canada is decreasing and common-law marriages are increasing.  This is said to occur because marriage itself is losing its original appeal and sentiment.  Young adults are delaying marriage and starting families without it. 

Research has shown that over one third of marriages in Canada end with divorce before their thirtieth anniversary.  According to statistics from the General Social Survey (GSS), in 2006 seven percent of the Canadian population over age fifteen were divorced.  It was noted that thirteen percent of the population (over age fifteen) was affected in some way by divorce and that almost half of them remarried.  Those who did not remarry were still looking for a partner, others were content with being single and the rest were in common-law relationships with no intent to remarry.

In a survey spanning 1990-2006 (from Statistics Canada) there was a steady increase in the number of divorcees that were unwilling to remarry; over half for both men and women.  Of note, divorced men were seen to remarry more often and within a shorter period of time.

The following factors were seen as some of the biggest issues affecting remarriage.

  • Data showed that divorced individuals with children were less likely to remarry, with that number and sentiment slowly increasing
  • The choice to remarry was seen to decrease according to the age of the individual
  • People who have been through more than one divorce tended to develop a negative attitude toward the idea of remarriage

Whatever purposes a marriage serves, there are many factors to consider when “taking the plunge”.  From finances to custody rights, it is important that you are fully aware of the ramifications of both a marriage and the possibility of divorce.  Even in common-law relationships which are definitely more popular, the same foresight and legalities should be considered in the event that there is a separation especially since there are different rules that govern common-law relationships.

At Zeidman Law, we provide a wide range of services to satisfy all your personal family issues.  Child custody and support, spousal support, divorce, domestic contracts and division of property are all just some of the areas of practice that we have vast experience in.  Call us today and allow us to help you get your affairs in order.

Divorce and Children

Posted by Avery Zeidman | Published Apr 15, 2015

 

Children are keenly affected by their home environment; they flourish in a steady and safe environment.  Naturally, during the breakdown of a marriage, adults can run through the gamut of emotions: hurt, pain, vengefulness and anger.  The turmoil from disagreements and emotional discussions may leave lasting emotional scars on children.    The upheaval before, during and after separation may result in dramatic changes in a child’s behavior; it is important to be alert to those changes in order to help them through the healing process.

Professional care and advice during this time can help all those involved through the process.  Paediatricians, family counsellors, psychologists and family doctors have knowledge and experience in recommending successful treatments and coping mechanisms for adults and children.  There are positive steps that parents can take to be proactive in protecting their children’s well-being.

What to say to your children

Formulate a plan:   As early as possible and when both parents can take the time to consider all the issues, they should plan steps that will address their children’s needs, questions and unique vulnerability.   

What to tell your children:  Plan out exactly what to say to your children.  Their age should influence what is said.  The younger the child, the less complicated the explanation needs to be.  Older children are more mature and may have questions; it is very important to be honest and calm during your discussion with them.   Parents need to actively listen to all of their children’s concerns and to provide answers at the appropriate level of detail; children do not need to know all the specifics of their parent’s disagreements.

How to break the news: If possible, both parents should explain what is happening.  Presenting a united front provides some reassurance to the children who are likely feeling confused and vulnerable.

When breaking the news, it is very important to reinforce the fact that they are not at fault for the separation, but rather, this is a problem between the adults in the relationship.   Children may blame themselves and carefully chosen words go far to ease their minds of this misconception.  Also, do not give them any false hope that the separation is not permanent.

Show a continuation of your love. Both parents need to reassure their children that the separation in no way affects how much they are loved.  They need to know that they will continue to spend time with both parents.   Make time for one-to-one discussions and activities with each child, if you have more than one.

Easing the transition into separate households

Both parents need to agree on a visitation schedule before discussing it with the children.  An older child may insist of having more input on where they live and as parents, you will need to take this into consideration.  Discuss how the physical living arrangements will change.  In most cases, leaving the children in their primary residence (where they grew up) can be the most beneficial.  Familiar surroundings provide a level of comfort that is particularly important during a divorce or separation.

Organization is key when dealing with issues that will affect your children.  Having a consistent and easy routine in place for pickups and drop-offs provides needed stability for the children.

Be respectful of the other parent and supportive of your children’s time with ‘your ex’; your children continue to need both their parents.  When dropping off children, maintain an air of politeness. Encourage your child’s relationship with their in-laws. Maintain open communication between yourself and ex-spouse.  Both parents need to be involved in disciplining and also, in discussions of issues such as school events or extra-curricular involvement.   Avoid using your child as the go-between for communication with your ‘ex’.

Be watchful of changes in your children’s behaviour that may be indicative of anxiety or unhappiness.  If you have concerns with how they are handling the changes in their lives, speak to your family doctor, community services or support group.

At Zeidman Law Offices, we offer experienced and caring support to everyday people who are going through challenging family related events.  We provide frank, legal advice and resolution for a range of family law matters including child custody, spousal support, domestic contracts and division of property.  Zeidman Family Law is committed to helping you resolve difficult decisions and in negotiating the best solution for you and your loved ones.  Our professional staff is here to help you. We offer a free initial consultation or you may choose to respond to the free online inquiry form available on our website.  Call us today and let us help you determine your options.

Pet Custody

Posted by Avery Zeidman | Published Mar 31, 2015

Many types of households and families have pets.  From the wild and exotic to the more traditional, pets are sometimes as much a part of a family as anyone else.  From the grooming to the registering, pets are widely becoming recognized as members of the family.  They are protected and loved by their owners and their treatment is governed by the law. 

In relationships, a pet may have been a gift, or purchased by one party.  The emotional attachment that can grow between a pet and an owner is powerful and can lead to bitter and vindictive separation proceedings which in turn are lengthy and costly.

If there is a divorce or separation, how is custody of a pet decided?

As crass as some may believe it is, Canadian law regards pets as property or possessions.  Some people may choose to argue custody from that standpoint or go another route and insist that shared family pets should be treated as surrogate children because the factors that need to be decided (like living arrangements and financial status) are the same factors taken into consideration when deciding on custody for children.

There has been a case in Saskatchewan (Gauvin v. Schaeffer) where shared custody was ordered for the family dog Shikydoe, a beautiful white Husky.  At the time, it was the first and only case where a judge ruled for shared custody of a pet.

While the law’s notion may be black and white and a bit inadequate for some, it is still used to determine ownership of a family pet after a separation or divorce.  Some still draw parallels between how custody is decided for a child vs a pet and below are some of the standard issues taken into consideration.

  • Who provided primary physical care for the dog?
  • Who was more financially responsible for the dog? (vet visits, toys, food etc)
  • Who has the pet bonded more with?
  • After a separation, who has been the primary caregiver for the dog?

General possession questions pertaining to a pet can include:

  • Who purchased the pet?
  • Who is listed as an owner at the vet’s office?
  • Who trained the pet? (dogs usually)
  • Who is the listed owner of the dog? (registered owner)

These custody battles normally arise when there isn’t specific mention of pet custody in a separation agreement.  This is why it is important to have an experienced family lawyer guide you through your separation or divorce proceedings.  It is imperative that your rights are represented during this emotional time period in your life. 

If your pet is important to you and you have an interest in exercising your ownership rights, you should make mention of this to your family lawyer.

There was an instance where a case was deemed a nuisance when brought to the Ontario Court of Appeal.  In Warnica v. Gering, the parties wanted to settle a custody arrangement for their dog.  A ruling of joint custody was being sought after but the Appeals Judge upheld the initial trial Judge’s refusal to make a ruling on the request, adding that the case was a “waste of time” and an “abuse of the court process”.  The claim was ultimately dismissed.

We at Zeidman Law can help you come to an amicable resolution of divorce and separation proceedings.  Our goal is to represent your rights during negotiating proceedings and to efficiently resolve issues pertaining to the division of property.  Call us today or visit us online and fill out a confidential and free request form for an assessment.

Alimony and Palimony

Posted by Avery Zeidman | Published Mar 18, 2015

When a couple separates or divorces, there are many factors to be assessed.  Spending a significant amount of time with a person in a relationship affords you certain rights depending on where you live.  Here in Ontario, the Family Law Act governs the principles set out by the Legislative Assembly of Ontario, which addresses the rights of individuals in a family.

 Common-law relationships are a recognized type of family structure and the rights of individuals in this type of relationship are protected.  Though there may be a stigma attached to an unwed cohabitating couple, it does not minimize the value and significance of such a partnership.

One of the main issues to be addressed in a separation is the financial ramifications and ensuing arrangements.  There are two categories that specifically address this factor; alimony and palimony. 

Alimony is a type of spousal support.  In Ontario it can only be made payable to a spouse.  You do not have to be married to be considered a spouse in Ontario, but there are a few other key factors that should be present in your relationship in order for you to qualify for spousal support if you are not in a legally binding marriage contract.

If you are unmarried but in a cohabitating relationship of more than three years consecutively (in a long-term continuous relationship) and have produced a child you can be considered a spouse and enjoy spousal privileges.

A few common factors that are assessed when determining spousal support are:

  • Income
  • Age
  • Assets
  • Physical health of the couple
  • Manner of living (standard of living during the relationship)

Palimony is a form of alimony.  It is a financial settlement and arrangement between two people who are not married and are no longer in a relationship.  In Ontario, common-law spouses are entitled to palimony unlike neighboring provinces. 

Proving the necessity and right for palimony can be challenging.  The length of a relationship is one of the most substantive indicators for palimony and other factors like living situations and co-mingling of finances are also issues that are looked at in order to assess the validity of a palimony claim.

The lines can be a bit blurred in the public’s perception when it comes to common-law relationships but the law attempts to guide us through the process.

It is important that you speak with and retain an experienced family law lawyer like those housed at the Zeidman Law Firm.  There are many facets of the law that are applicable during separations and as a client you should be made aware of all of your choices.

For example the issue of property rights in Ontario.  If you are unmarried, the division of assets is kept to whatever is in your name.  If there is property that is jointly owned, it would be shared equally or sold and the proceeds equally divided.  In this case it is advisable that during such a relationship that you pay for things that are in your name, for example car and house payments.

At Zeidman Law, we are here to help you through the legal maze that surrounds family law.  We are experienced, professional and highly motivated to help you get your just settlements through this challenging period in your life.  Call us or visit us online today for a free consultation.

Financial Separation

Posted by Avery Zeidman | Published Feb 28, 2015

The end of a relationship can have varying effects on people. Some people may be jubilant and relieved; others may be heartbroken and bitter.  No matter the feeling, a separation is emotionally, physically and financially taxing.  Depending on the circumstance it can become a lengthy process and having the right legal representation is the first step to getting your case fairly resolved.

In a previous article, we stressed the importance of financial agreements. If there is one in place, it can make the entire process easier but if there isn’t one in place, it can cause insurmountable damage that can impact the family dynamic for years to come, especially if children are involved.

While finances may be an uncomfortable issue to address, it is essential in a separation. Both parties have rights in any marriage or common-law relationship and ensuring that each person is treated fairly is an important step in attaining a fair resolution, which can allow the healing and separation process to begin.

Below are a few suggestions that can help you with your decision for a financial separation.

Record Keeping: It is advisable that you keep copies of your financial records. These include bank statements, tax returns, insurance plans and any other pertinent documents.

Acceptance and Calm: People can react very negatively when operating from a place of anger.  It is advisable that you seek therapeutic help in order to adjust to the new and impending circumstances.  Succumbing to rash behaviours like racking up more debt or hiding assets will only hurt all those involved (including children).

If there are children involved, it is advisable that you get a mediator if a compromise cannot be reached.  Child support is a long-term commitment that should not be fuelled by vengeance.  A separation should be treated carefully; there should not be a “take no prisoners” mentality.

Initial Steps: Whenever the decision is made to formally separate, the outside world still operates as if you are still married until they are notified otherwise.  Any joint accounts should be closed and reopened separately, and for instances where there may be balances owing, written notification is required to notify the bank of the impending separation as there are actions that can be taken on their part to resolve those account balances. 

Your John Hancock: Everything needs to be in writing.  Although a couple may amicably come to the decision to split balances fairly, it is still advisable that you talk to a creditor.  Have whatever arrangement that is made documented and signed by the relevant parties.

Even if debts are allocated to one person in a divorce settlement, it does not override the joint obligations that a married couple have to their creditors.  If one party is delinquent in their payments, the other party can be held responsible and liable to the financial institution. 

Knowing is truly half the battle in this case.  There are steps that you can take to ensure that your best interest is served during the tumultuous time that can accompany a separation.  Call us at Zeidman Law and allow us to assess your case with a free initial consultation.

Family Violence

Posted by Avery Zeidman | Published Feb 20, 2015

Family life and its dynamics vary across the world.  Many factors like religion and race can affect these dynamics and although there may be some commonalities in the general fundamentals of family values, not all are seen as healthy or beneficial to a family.

Family violence is an umbrella categorization that has many names like domestic violence, spousal abuse and domestic abuse.  Regardless of the terminology used, it is seen as any threatening, violent or intimidating behavior by one family member towards another which causes that person to feel threatened or fearful for their life. 

Family Violence has many faces and can happen to anyone and occurs when there is a perceived imbalance of power in the relationship.  The aggressor uses intimidation and bullying tactics to instill fear in a person which leads to conformity. 

Though a popular belief, family violence is not limited to physical abuse.  It can also be sexual, mental or financial. 

Sexual Abuse encompasses any unwanted physical contact of a sexual nature.  It does not always include forceful acts like rape; it can be more underhanded acts with ulterior motives like tampering with a spouse’s birth control, the transmitting of STDs or forced abortions.

Physical Abuse is recognized as bodily harm done to a person.  This includes hitting, spitting, pushing, stabbing and in some cases the verbal threat of violence.

Psychological Abuse can play out in many forms.  From threats of suicide if a partner decides to leave or constant negative critiquing and deliberate isolation from one’s family, this form of abuse is as equally destructive as physical abuse.

Financial abuse happens when one person uses their finances to control another individual’s way of life.  It could be from confiscating their salary to forcing the person to ask for money for the most minuscule of expenses.

If you have been a victim of family violence, you have lawful options to help remedy the situation.  Some include emergency protection orders, restraining orders and you also have the option of pressing criminal charges.

If you do decide to pursue legal recourse, the first step should be to identify if your needs will require formal legal intervention.  Sometimes simple actions such as changing a telephone number or changing residences may remedy the situation. 

It may seem inconvenient to a victim of family violence but ensuring that there is no contact with the perpetrator can sometimes help end the threat of violence and there is no price too high to pay to ensure your safety and the safety of your loved ones. 

When choosing the legal route, a Judge may err on the side of caution (when it is reasonable to assume that any notice of the impending order would place the victim in immediate harm) and the offending party could be informed of your intention to file through lawyers and other court appointed individuals. 

It is advisable that a victim make an inquiry to the police as most acts of family violence are considered criminal offences.  They can deliver notice of a protection or restraining order on behalf of the victim. 

Here in Canada, violence directly impacts the family unit in a negative manner.  It can lead to divorce, psychological problems and even criminal acts that have dire consequences.  The Family Law Act enforces the rights of spouses and dependants and it is important that you are aware of the laws that are designed to protect you.

Call us at Zeidman Law to speak with one of our knowledgeable and professional attorneys if you or someone you know is in need of our services.  We offer a free consultation where we assess your case and advise you of the options that are best suited to your specific circumstances.

Separation Agreements

Posted by Avery Zeidman | Published Jan 28, 2015

There are many varying degrees for the dissolution of marriages and common-law relationships here in Canada.  We explained a few in a previous article on types of separation and would like to further discuss a very important bi-product of this decision; a separation agreement.

Separation as it pertains to marriages and common-law relationships is the decision taken by a couple to end an existing domestic partnership.  It can consist of one spouse physically vacating the communal residence or one choosing to stay but residing in a separate room of the shared home.  One of the major factors that can signify this type of arrangement is the ceasing of sexual interaction and the sometimes more subtle changes in family dynamic (like not eating as a family, reassigning chores, etc.)

Whenever it is decided to live apart with the direct intention of dissolving the relationship, it is considered to be a legal separation.  There is no application to be filled out in order for this to be legally binding and there is also no time limit governing the parameters of a separation.  Divorce is not an inevitable outcome unless it is requested by one party; couples can stay separated indefinitely without the legal need for a divorce unless one of the parties decides to remarry. 

While we mentioned above that there was no time requirement when concerned with a separation, if the person’s intention is to separate and file for a divorce, there is a minimum time requirement for a separation.  When filing for divorce, the court requires that you complete a one year separation (the goal is to exhaust the possibility of reconciliation).  This is simplified if the involved parties are living at separate locations.  If the couple chooses to reside in the same house, it needs to be proven that there is no marital relationship (this can be difficult but done with legal representation).

The term legal separation is a common one and here in Canada, it should not to be taken literally (as it often refers to a separation agreement).

A separation agreement when defined is a legally binding agreement between a married or common-law couple who have mutually or singularly decided to live separately for an indefinite amount of time.  In many cases, both parties may agree to a separation but it is not required.  One spouse can decide that the relationship has drawn to its conclusion and a divorce can be granted through the legal system.

In a separation agreement, there are a few standard issues addressed.  One of the main purposes of such an agreement is to protect and solidify the rights of each party so there is no confusion and little discord thereafter.  Factors such as child custody, distribution of property and debts are common issues settled with a separation agreement. 

It is advisable that a separation agreement be drafted by a knowledgeable and experienced family lawyer to properly represent the rights of an individual.  Oral or ambiguous contracts can easily be challenged in court and can prove to be quite costly.   It is also advisable that each party be represented by a separate lawyer in order to aptly represent their client’s needs

Let us at Zeidman Law advise you and represent your rights during what can be a tumultuous time for anybody.  Call now for a free consultation and begin the process of adjusting to a new chapter in life.

Adoption

Posted by Avery Zeidman | Published Jan 16, 2015

For many people, a common goal is to want the idealistic family; husband, wife, kids and even a pet sometimes.  In Canada, everyone has the right to pursue their goals and ideals in a lawful fashion.  Not all women can conceive, and not all relationships consist of the traditional man and woman household.  In these cases, individuals who are seeking that family unit have a few options, the most common of which is adoption.  

Crown adoptions have long since been the more inexpensive option for many people.   The system is designed to care for and place children who need permanent homes in loving and nurturing households.  It caters to families who do not have children or who just wish to expand their families.  In Ontario, adoption can be done through three main channels legally; private domestic, public or inter-country.

The rules surrounding the adoption vary according to the individuals involved.  In some cases, the birth family is in open contact with the adoptive family after the adoption (open adoptions) and in other cases, there may be little to no information exchanged between the two families.  Either way, it is a highly sensitive process, and the onus is on the parents to help the child adjust to the circumstances.

In the cases where an open adoption is in place, the birth family relies on the adoptive family to keep them abreast of the child’s progress and development.  The guidelines are normally written and signed at the time of placement, but the onus is on the adoptive family to follow the rules as the “openness” clause after the adoption is not legally binding.  If any issues arise, the adoption agency can be contacted to help come to a speedy resolution.

There have been cases where adoptive parents’ rights are challenged and hiring a competent family lawyer can go a long way towards helping you resolve the matter favourably.

It is every parent’s nightmare; their child being taken from their home in any manner.  Just this past December, an Ontario mother claimed that she has been forced by the Crown to give up one of her adopted sons. 

His name is Niko, now nine years old and he was adopted from Serbia five years ago by Nicole Desmarais, a family physician by profession.  Niko’s back story is one of the many sad ones you may think about when you hear the term adoption.  By the time he was four, he had been abandoned by more than one care giver, including his birth parents.  He was not nurtured and loved in any manner that would promote any semblance of normalcy.  His trials unfortunately did not stop there; they arguably got worse when he was shipped to an orphanage, followed by a mental health facility. 

Niko has since developed disturbing patterns and behaviours, all connected to violence in his new home in Canada.  His psychiatrist has reported that he has cut open one of his sister’s faces, killed a rabbit and molested a two year old boy.  He has made numerous death threats to several people and been physically violent to both adults and children.

The Ministry of Child and Youth Services has deemed Niko a danger to himself and others.  The Children’s Aid Society had given Nicole a deadline of December 5th to surrender her son to them.  The options afforded to her were either to facilitate all the costs associated with his treatment on her own and retain custody or sign away her rights and allow the Crown to care for him in one of their facilities.

His adoptive mother Nicole believes that he can be afforded the best care with her and a family.  She does not want to give up on him and believes that surrendering him to the Crown would be yet another form of abandonment which will do more harm than good to him.

In June of last year she filed a ten million dollar suit against the Ministry of Child and Youth Services to facilitate the treatment for Niko as well as to construct a future plan for his care indefinitely or until necessary.

Her battle will be a lengthy and arduous one.  Remanding the services of a knowledgeable and professional family attorney is a key element in fighting for your child’s rights.  Call us at Zeidman Law and allow us to help you through this trying period in your life.

Child Support

Posted by Avery Zeidman | Published Dec 09, 2014

Divorce is a very difficult process to go though.  Finances and custody are two of the major issues to be settled, and here we will focus on enlightening you on the specifics surrounding child support.

Child support or child maintenance is the legal financial obligation that a parent has to fulfill to care for their child until adulthood.  There are cases where parents sometimes need to provide indefinite care for their ward, and an example is in the case of children with special needs.  More selective and specific care is needed that usually spans over a long term period well into adulthood.

When parents are separated or divorced, a Judge can decide which parent is awarded custody of the children.  The amount of money given in support from one spouse to the other will be based on the financial standing of both parents.  Below are a few examples of the factors a Judge may take into consideration.

  • Pensions
  • Wages
  • Bonuses
  • Unemployment and Disability payments
  • Annuities
  • Interest

There are situations where parents come together outside of court with an agreement on a figure for child support.  If you choose to do so, it is imperative that it is put in writing and have it signed by the relevant parties (the other parent and witness).

While the interest and intentions within these out-of-court agreements are meant to be amicable and fair, it is also wise to know how much the receiving parent is entitled to.  It is a good way to measure the actual amount against what is going to be agreed upon.

There are many guidelines to be considered when deciding or getting an idea of what child support payments should be.  Please see http://www.justice.gc.ca/eng/rp-pr/fl-lf/child-enfant/guide/index.html for more information.

Another factor to take into consideration is the inevitable changes in income that may occur.  A parent can legally make a request in writing once a year to be updated on the financial status of the other parent.  The goal of this is to ensure that the payments remain fair, whether there is an increase or a decrease in wages.

Sometimes divorces can be financially and emotionally draining.  In many cases it is not amicable as people are usually reacting from a place of hurt and anger.  There have been cases where children have been used as pawns and leverage to influence both the receiving and payment of child support.  It is very important that child support be paid on time and every month.  Whether or not you are in contact with or physically seeing your child, the law demands that you bear your financial responsibility. 

There are certain penalties that can be enforced if child support payments are not being paid.  A few are listed below.

  • If you are owed money from the government, for example with income tax returns, it can legally be seized to pay the owing balance (via the Family Orders and Agreements Enforcement Assistant Act)
  • Licenses and passports can be suspended if you have missed more than three payments or if your back child support exceeds three thousand dollars (via the Family Orders and Agreements Enforcement Assistant Act)
  • You may be forced to serve jail-time as well as pay all the court costs associated with the enforcement of the child support order

While this piece attempts to enlighten you on the basic steps to take concerning child support, it is very important that you speak to a professional and experienced family law lawyer like those housed at the Zeidman Offices.  Allow us to help you through this period in your life.

Discipline and the Courts

Posted by Avery Zeidman | Published Nov 15, 2014

The courts can play a very important role in family life and structure across Canada.  They are sometimes the deciding authority in custody issues and are supposed to iron out details from an (arguably) objective stand-point between feuding parents or guardians.  When it comes to disciplining a minor of divorced parents, when and where should the courts intervene?

Anyone with children of their own, or anyone who lives with young children or teenagers is usually witness to the tantrums and argumentative questions that they seem to have in endless supply.  Sometimes every issue is up for debate and parents find themselves having to repetitively explain and justify the rules concerning their child’s upbringing and welfare.  The ever popular line of frustration voiced by parents everywhere “Because I said so!!” does not always suffice with our eager to grow up offspring.

Here, we look at a case in Canada that sparked some outrage from parents and shouts of victory from twelve year olds across the country.

A twelve year old girl whose parents are divorced and living separately, felt that she needed to right a wrong being imposed against her by her father. 

The issue was borne from the child in question posting a picture of herself on a dating website.  Her father, who had custody of her, revoked her access to the internet as punishment after he found out.  Allegedly, sometime after this there was a confrontation with her stepmother.  Her father then banned her from an upcoming school field trip that marked the graduation from elementary school.  When her father forbade her to go to the field trip, she decided to go live with her mother. 

Not long after that, the father was served with a motion to reverse the decision of punishment through the courts. 

After assessing the circumstances and reading the statements provided by both parents, the Judge decided that the punishment was excessive and redundant because the child had been sufficiently punished for her actions thus far.  The Judge noted that the specific event she was barred from warranted a reversal in her father’s decision and therefore found in her favour. 

The ruling came just before Father’s Day and the attorney who represented him said that he was truly devastated by the court’s actions.

 A lawyer’s role is to represent their client’s best interest above all else.  In this instance, the attorney representing the child was chosen by both parents.  The lawyer acted as a temporary guardian and stepped in as a third party to settle the disciplinary issues that could not be resolved by the parents. 

The law may vary throughout provinces and having a knowledgeable and professional law firm represent you is imperative to increasing your chances of success.  We at Zeidman Law know how difficult and sometimes painful these situations can be and we have substantial experience in handling these cases with empathy and compassion.  Call us today, or fill out our free online form and allow us to help you through this difficult period.

Parenting Plan (Part 2)

Posted by Avery Zeidman | Published Oct 29, 2014

In our last article, we addressed the importance of having a parenting plan in effect when going through a divorce or a separation.  Here, we will discuss ways to help make you more knowledgeable about the options available to you.

Setting up a parenting plan can be very easy or extremely difficult.  Every case is different and emotions tend to run high when a child’s welfare is involved.  There are a few options available to you when formulating a parenting plan if you do not wish to leave it up to the courts.

When formulating a parenting plan, it is extremely important to have separate lawyers.  It is a major conflict of interest and serves no purpose to have one lawyer serving both parties.  Whether or not there are disagreements or disputes, it is advisable to have a separate family law lawyer who can represent your individual rights.  An experienced and professional family law lawyer can be of great help to both parties, aiding in an amicable settlement that would satisfy the needs of the child and the parent.

There are certain steps that can be taken if an agreement can’t be made just between the parents.  Often, one’s judgment can be clouded by emotions and a peaceful agreement may not be a reality.  Below are a few options that are available to you.

  • The separated parents can meet with a mediator.  A mediator is a non-biased party who is experienced in handling and settling key issues that impede the progression of separated or divorced families.  It is important to know that a mediator does not give any legal advice. An agreement can be reached, but all legalities are handled by the lawyers.
  • Another option is going to an arbitrator.  There is a very important difference between an arbitrator and a mediator.  An arbitrator is usually someone with a solid legal background whose decision in a case is final.  It can be appealed in court, but the decision made is legally binding.  Parents should seek separate legal advice from their family law lawyers before agreeing to arbitration.  An arbitrator’s main intention is to serve the best interest of the child according to Canadian Family Law.
  • Settling in court is another option that, while may not be popular, is efficient.  A Judge attempts to make a decision based on information from both parents and sometimes seeks advice from independent sources like a social worker or psychologist.  A Judge can also give temporary custody and access during the process as it sometimes can be very lengthy.

Deciding on a parenting plan is a very important and life-changing task.  It is imperative that you seek the services of an experienced family law lawyer in Ontario when going through a divorce or separation.  Let us at Zeidman Law guide you expertly through the process to ensure that not just your needs are met, but the needs of your family as well.

Parenting Plan (Part 1)

Posted by Avery Zeidman | Published Oct 21, 2014

Divorces and separations are hard decisions to make and in most cases very emotionally impactful.  Relationships are usually built on hope and trust and are a part of everyday life.  No one gets into a relationship with the intention of it ending after all the time and effort put into it, especially when children are involved.  If and when that unfortunate day comes, there are many issues that are to be taken into consideration.

Whether you were a partner in a marriage or a common law relationship, as long as children are involved, you will need a parenting plan.  Decisions like where the children will live and how much time each parent will be allowed with the child are all important issues that need to be addressed between the adults sooner rather than later.

A parenting plan, also known as a separation or paternity agreement ensures that both parents’ rights are protected.  If both parents can come to an arrangement, they may be able to forgo the court process.  This agreement has to be written and signed by both parties.  It is advisable though to have a professional and reputable family lawyer to represent each parent’s rights individually; meaning each parent should have a separate lawyer in order to have their individual rights and concerns legally represented.

Custody is the most important factor in separation and divorce that immediately affects a child.  Decisions concerning major influences that will shape and guide a child, like religion, health care decisions, education, and even the child’s legal name are the fundamental rights concerned with custody.  It is a common misconception that custody is primarily about where the child lives.  It is not.  You may have instances where a child lives with their mother but has equal time with the other parent or both parents have custody but the child lives primarily with the father.

There are different types of custody.  It is very important that the best interests of the child are served first and foremost.  Speaking with an experienced lawyer from the Zeidman Law Offices can help put many things into perspective.

Sometimes even though parents are no longer together, they still have an amicable relationship where they can seamlessly agree on issues that will impact their child.  Joint custody is heavily dependent on both parents being like-minded in the core value process of raising a child.  This works in a variety of ways like parents agreeing to make individual decisions on specific areas (for example, one parent can be responsible for medical decisions while another for religious teachings). 

Sole custody is where one parent makes all the major decisions concerning the child.  You may have instances where they are legally bound to inform the other parent of certain issues that may arise, but ultimately the decision is theirs.  When sole custody is awarded, the other parent can be awarded Access to the child. 

There are different types of Access. 

Reasonable Access allows a flexible situation where the time spent with the child is not rigorously scheduled.  A parent can arrange meetings on a whim and see the child whenever they desire. 

Fixed Access has a more defined schedule where weekends, holidays, birthdays and other occasion are pre-arranged to grant access to a parent. 

Supervised Access is where a parent can only have access to a child with another adult (family member, social worker or friend) physically present during the visitation.  A parent’s access may need to be supervised for many reasons such as abuse, psychological problems or any other illegal acts that have been committed against the child. 

No Access is a very literal term used when a parent has no contact whatsoever with a child.  This can be granted where the child’s safety and well-being is threatened.

A parenting plan covers many more key issues that we will discuss in a follow-up piece.  Our goal is to enlighten you freely on issues that may directly affect you when it comes to family law.  Call us today or fill out our free and confidential form online and allow us to help you through this entire process.

Divorce, Separation and Annulments

Posted by Avery Zeidman | Published Sep 30, 2014

Annulments aren’t restricted to correcting drunken errors in judgment as often portrayed in comedies. They are a reality and pursued by individuals who would like to reverse their decision of marriage.  It is a legal tool used to render a marriage void and in most cases, it deems the marriage as never having happened.

A separation is where the married individuals are no longer in a communal relationship. In some instances, they live at separate residences but it is not a requirement; they can also live under the same roof.  The onus is on them to prove that they are no longer a functioning marriage unit (not sleeping together or engaging in the usual familial activities).

A divorce is the legal conclusion of a marriage before death between two individuals who have agreed to terminate their marriage.

 A few common reasons for annulments are:

  • When someone is considered mentally incapacitated and does not understand what a marriage is or entails
  • If someone is already married
  • When one of the individuals is of close blood relation to the other (sibling, by parentage, etc)
  • If you are a minor (under eighteen) and do not have the legal consent of your parents or guardian
  • “Shotgun” weddings (a spur of the moment act)
  • If someone was “duped” into the marriage (where they were under the impression that it was not a real marriage ceremony)
  • Immigration purposes (it is important to note that as a stand-alone reason it may not be grounds for an annulment; it needs to be coupled with other factors that qualify for annulments)
  • When a spouse ably chooses (deliberately chooses) not to have sex with their partner

Grounds for Divorce are:

  • Adultery
  • If the married couple has been living apart for a year or more
  • Mental and or physical abuse

There is a legal process that has to be followed when filing for any of the above mentioned categories. Retaining professional legal services is the first step to turning the page in this chapter of your life. 

Whatever the reason behind your decision, it can be a difficult and stressful part of your life.  It is in your best interest to be informed of your rights with a caring and experienced company who can ease the legal burden of the process.  We at Zeidman Law offer a free initial consultation to educate and inform you of your rights through this trying process.

The Importance of Financial Agreements in relationships

Posted by Avery Zeidman | Published Sep 23, 2014

Marriage is a broad evolving term and depending on who you ask, can have varied definitions.  In the most basic terms, marriage can be seen as a social ritual based on cultural, economical, lawful and religious foundations.  It attempts to solidify long term sexual relationships between individuals who are together with the goal of procreating and or building a life together.

There are many reasons people choose to get married.  It is not a decision that should be taken lightly.  It has as many costly repercussions as it does benefits.  The decisions made in the onset of marriage help secure both parties throughout the marriage and its conclusion if that were the case.  

Starting a relationship can be exciting and rewarding.  Here in Ontario, there are many rules that govern the institution of marriage.  Whether or not you decide to get married, it is important to consider the financial aspect of the impending or existing relationship.  It may be a difficult and uncomfortable task to speak to your partner about finances but it is the only way to ensure that there is some semblance of fairness if ever the time comes to separate.  Some see it as taboo to do so or fear the thought of being labeled a gold digger but most people who have gone through a divorce or a break-up could tell you the advantages of having a financial agreement in place.

If you are to be married or already are married, you have the option of drafting a prenuptial agreement.  Common-law relationships can also benefit from financial security by drafting a cohabitation agreement. Both of these contracts enable you to settle your financial responsibilities in a manner that is agreeable to you both.  A huge advantage to drafting up the contract yourselves is that you both can share the assets and liabilities the way you see fit versus having this decided by a Judge in a court of law.

In order for this agreement to be legally sound, it has to be in writing.  It is advisable for each individual to get advice from their own separate lawyers before signing the written agreement.  This ensures that each person’s best interests are served.  The document has to be signed by both parties in the presence of two adult witnesses who will also sign.  Filing your contract in court allows a Judge to enforce the agreement if for some reason either party violates its terms.

There are a few key issues to address when drawing up a financial agreement.  The law in Canada allows only certain factors to be taken into consideration when theses financial contracts are drawn up.  Below are a few examples of what will not be legally binding.

  • Custody and child support cannot be decided or prepared in this type of contract.  Custody of children can only be decided when the relationship ends
  • For couples who are married, the rights of the marital home cannot be given up in the contract
  • Deciding whether or not a partner can engage in another relationship after separation is not applicable

You can however:

  • Decide together how the finances should be divided between the two of you
  • Conclude how much spousal support would be paid by one party to the other
  • Decide how the responsibility of debts will be disbursed if and when the relationship comes to an end

Your agreement can be changed at any time and should be done so with great consideration.  In these cases, a new agreement has to be drawn up, dated and signed by the witnesses.  It should also include full legal names, date of marriage or date of the beginning of cohabitation, joint assets, debts, etc.

If for some reason, either party decides that the agreement is not fair, and the dispute cannot be settled amicably, a trial would ensue to allow a Judge to settle the claim.  Generally, it is not wise to go down this path as a Judge would give more consideration to enforcing the original financial agreement.  There are however, instances where they might make an exception.  If there is a significant change in income, if one party was pressured into signing the contract or if the agreement is grossly unfair, the Judge can make the amendments that he or she sees fit.

Here at the Zeidman Law Offices, we have over twenty years of experience in our field and we would welcome the opportunity to represent you in your time of need.  Life is unpredictable but there are some steps you can take to control what you have worked so hard to achieve.  Call us today for a free initial consultation and allow us to help you through this sometimes lengthy legal process.

Common Law Separation

Posted by Avery Zeidman | Published Sep 05, 2014

Common Law Separation

The definition of a common law relationship, also known as cohabitation, is defined as two people residing together in a committed “marriage-like” relationship. Over the past number of years we have seen a rise of common law relationships in Canada and it is said to be the fastest trending family structure. People are deciding to move in and live with each other as unmarried partners for extended periods of time with or without any intention to ever get legally married. For a relationship to be considered a common law relationship, a couple must reside together for a specific period of time as indicated by the legislation of the province they reside in. More and more people are "living together" as unmarried partners.

Although this type of relationship is now very common, the rights of people living together outside of a marriage are still quite misunderstood. Many people are falsely led to believe that the common law couple is entitled to the same rights as a married couple but this is not often true.

Since marriage laws are provincially regulated, the laws vary considerably depending on the Canadian province that the couple resides in.  At one end of the spectrum, British Columbia considers common law partners the same as married couples in most respects. On the other hand, the province of Quebec does not recognize common law relationships at all.

One area where laws differ in various provinces is in how the courts determine what cohabitation is and when a couple is considered to be in a common law relationship. We discuss these factors next.

Qualifications for Common Law Relationship

For one to have been considered to be in a common law relationship the judge would have to look at the lifestyle of the parties in the relationship. There are 7 main criteria that are considered.

Living Accommodation/Shelter: Does the unmarried couple reside together?
Sexual and Personal Behaviour: Do the unmarried parties maintain an intimate interdependent relationship and are they so perceived by others.
Services: Are traditional family functions shared by the unmarried couple?
Social Life: Are the parties recognized by the outside world as a couple?
Societal: How are the common law partners treated by their community?
Economic Support: Did the unmarried couples share financial obligations, support one another financially, etc.?
Children: Do the unmarried couple have any children together, see children as part of their home or interact parentally with each others’ children?

Some of the basic misconceptions of common law separations are usually to do with property and child custody.  In general, there is no such thing as “matrimonial assets” in a common law relationship so it is always advisable to establish a cohabitation agreement when you are living “common law” to clearly establish how assets will be divided in the event of a break up.

Unlike a married couple where everything would be split equally, generally for common law, each person gets to keep what belongs to them and each person is responsible for the payment of their own debts.

In the instance that an asset is in the names of both parties, then its value is to be equally divided amongst the couple. The couple can come to an agreement on the method by which the asset will be split. The asset can be handled by one partner “buying” the other out, or the asset can be sold and the proceeds equally shared among the two. In the event that these laws result in an unfair division, then a partner will need to make a claim to the courts citing “unjust enrichment”. This happens when one person feels that they have made significant contributions to the “partnership” which are not being compensated for at the time of the breakup.  For example, if one party paid the rent for an extended period of time or perhaps worked for the other party without pay, they may be entitled to restitution to compensate for expenses or services that unfairly benefited the other party.

Spousal support is not often sought or granted in common law marriages unless there are children involved.  Throughout Canada, the laws that pertain to matters such as child custody, child support and child access and visitation rights are the same for common law couples and couples who are legally married.

Find Legal Advice

Considering the vagueness of the laws surrounding common law separation and how it varies by province, the best way to ensure you are getting the best, most accurate advice is to obtain legal representation. A specialized lawyer in family law, and more precisely common law spouses, will be able to adequately assist you and correctly answer your questions.  Of course, at Zeidman Law Office, we are more than happy to meet with you to explain how you can ensure that your rights are properly protected.

Child Custody

Posted by Avery Zeidman | Published Aug 18, 2014

Custody

Custody relates to the rights that a parent has regarding the primary residence and the raising of their child or children.

There are four different types of Child Custody:

Sole Custody

In a Sole Custody arrangement, the parent who obtains custody controls how the child is raised in relation to education, spiritual beliefs, healthcare and primary residence without any say from the other parent. The other parent is deemed a non-custodial parent and is therefore not entitled to physical and or legal custody of their children as issued by the court.

Joint Custody

Under Joint Custody, both parents have identical care and decision making power in regards to the raising of their children. These parents share responsibility but this does not necessarily mean that the child is obligated to spend equal time living with each parent. Only one parent is approved to provide primary residence for the child.

Split Custody

Split Custody can apply when more than one child is involved. In such cases each parent may be assigned primary custody of at least one child.

Shared Custody

Under Shared Custody arrangements, the child or children reside equally with each parent where at least 40 percent of the parent’s time is to be spent with their child or children. In this situation combined parental decision making takes place.

Annulment of Marriage

Posted by Avery Zeidman | Published Jun 10, 2014

Marriage is strictly defined as a lawful union of two persons.

A marriage annulment is a lawful pronouncement that a marriage is null and void. An annulled marriage is stated to be unacceptable from the start. A marriage annulment makes it unnecessary for an individual to be incurred by financial obligations of his/her former spouse. However, spouse and child support, in addition to property laws may still be active.

 Annulment should never be confused with divorce. Divorce undoes a marriage only from the date that the judgement becomes effectual where as an annulment outlines the fact that the two parties were under no circumstances legally married.

It is important to note that legitimate grounds must be presented to facilitate the annulment of a marriage.

Some conditions for annulment of a marriage include:

  • Marrying an individual who was already legally married to someone else.
  • The individual does not have the mental capacity to fully comprehend what marriage is.
  • Marrying an individual who is too close a relative. Example a brother or a sister.
  • Underage marriage i.e. under the age of 18 without parents consent.
  • Marrying under threat.

Marriage Separation

Posted by Avery Zeidman | Published Jun 09, 2014

It is important to note that there is no such thing as filing for legal separation in Canada. Legal separation is evident once you and your spouse are living separate and away from each other.

There is no definite period in being separated and divorce will never arise routinely after or because of the separation. It is possible to be separated from your spouse and still be married to them. This marriage can only be legally dissolved by a divorce, which opens the door for an individual to remarry.

In order to file for a divorce in Canada one year of separation must be completed. Other legal grounds for divorce include adultery or vindictiveness.

A separation agreement is defined as a legally binding contract between the spouses at the time of their separation which clarifies each spouse’s rights on issues connected to child custody and access, property, debts and support issues.  This agreement is not compulsory but highly recommended as it outlines specific arrangements accepted by both parties.

The document can be used as evidence in the scenario where terms and conditions are breached by the opposing party. It can become troublesome in confirming an unclear agreement thus it is also recommended that this document be prepared by a lawyer.  

Case Conferences - What's the Purpose?

Posted by Avery Zeidman | Published Sep 13, 2011

The Family Law Rules specify the purposes of a Case Conference, which can include the following:

  • exploring the chances of settling the case
  • identifying the issues that are in dispute and those that are not
  • exploring the ways to resolve the issues that are in dispute
  • ensuring disclosure of the relevant evidence
  • identifying issues related to expert evidence
  • noting admissions that may simplify the case
  • setting the date for the next step in the case
  • setting a timetable for steps in a case
  • organizing a Settlement Conference
  • giving directions for any intended motion, including a timetable for exchanging materials

The practicality is that most courts do not have enough time to deal with all issues at a Case Conference or achieve all of these purposes. Having a family law lawyer who knows how to get the most out of a Case Conference can mean the difference between a case that settles early and a case that drags on for years.

To get the most out of a Case Conference, call one of the family law lawyers at Zeidman Law Offices for a free consultation. 905-669-7577

Family Law Statutes Amendment Act, 2009

Posted by Avery Zeidman | Published Mar 25, 2010

2010 will bring a host of changes to Family Law legislation in Ontario thanks to Bill 133, the Family Law Statute Amendment Act, 2009 (the “Act”). The Act will come into force after receiving Royal Assent. Please check our Blog regularly to keep up to date with these changes and/or sign up for our free newsletter.

Changing a Child's Name

Posted by Avery Zeidman | Published Mar 19, 2010

The Change of Name Act (the “Act”) will be amended by Bill 133 (Family Law Statute Amendment Act, 2009) as a consequence to changes in the Children’s Law Reform Act (wherein section 6.1 is being added) that enable a court to change a child’s last name where a declaration of maternity or paternity is made. Section 5 of the Act is changed so that an application for a further surname change requires the consent of the person declared by the court to be the child’s mother or father. However, the amendment also states that the requirement for this consent may be waived by the court on application, which is similar to other consents contemplated in the Act. One result of this change is that a parent may apply to the court to have his or her surname added to the child’s name if the other parent refuses to consent.

Restraining Orders

Posted by Avery Zeidman | Published Mar 10, 2010

The Child and Family Services Act (the “Act”) will be amended by Bill 133 (Family Law Statute Amendment Act, 2009) wherein section 57.1 of the Act will enable the court to make a restraining order in appropriate circumstances at the same time the court is making a custody order. A separate application for a restraining order will no longer be required. In addition, the court can deem the restraining order to be one made under the Children’s Law Reform Act.

Child Custody and Access Applications

Posted by Avery Zeidman | Published Feb 26, 2010

One of the numerous amendments to the Children’s Law Reform Act (the “Act”) as a result of Bill 133 (Family Law Statute Amendment Act, 2009) relates to the process for custody or access applications in certain circumstances. Section 21 of the Act is amended adding a requirement for the applicant for custody or access to file when making the application a sworn affidavit stating the following:

  • his or her proposed plan for the child’s care and upbringing
  • information about the applicant’s current or previous involvement in any family court or criminal proceedings
  • any information that is relevant to the court’s decision

Previously, a party could start a court application for custody or access without filing or serving a sworn statement, let alone one containing a detailed parenting plan or information about previous court proceedings

 
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