Many modern blended families wish to reflect their emotional bonds through the adoption of children by their stepparents. Here are four key things to know about stepparent adoptions. The Consent of both parents is required. To proceed with a stepparent adoption of a child, you need to obtain the consent of both of the child’s parents, not just the consent of your spouse. You need to obtain the consent of both parents, even if one parent has not been involved in the child’s life. Often, one parent will refuse to provide their consent or not respond to the request to dispense with their consent. If you are unable to obtain the consent of a parent, you will need to start court proceedings to ask the court to dispense with that parent’s consent to the adoption. The Consent of the Child may be required. If a child is over seven years … Read More
Stepparent Adoptions: Dispensing with a Parent’s Consent
In Ontario, a stepparent who wants to adopt a stepchild less than sixteen years of age needs to obtain the consent of both of the child’s biological parents. Often, one parent will refuse to provide their consent or will not respond to the request to dispense with their consent. If one of the parents does not provide their consent to the adoption, the stepparent will need to ask the court to dispense with that parent’s consent. The court may do so if they are satisfied: The adoption is in the child’s best interests and The parent whose consent is required has received notice of the proposed adoption and of the application to dispense with consent, or a reasonable effort to give notice has been made. The stepparent must meet both criteria for the court to dispense with a parent’s consent to the adoption. The onus is on the stepparent who … Read More
COVID Vaccination – Can You Force Your Child to Be Vaccinated?
In O.M.S. v E.J.S., 2023 SKCA 8, a Saskatchewan father recently tried, and failed, to get a court to order that his 13-year-old daughter be vaccinated against Covid-19. The case illustrates some of the key principles that courts regularly apply when making determinations about medical treatments in the face of disagreements between separated or divorced parents. In this case, the parents had been separated since 2012. The parents had a high conflict relationship with numerous court attendances. Their daughter lived primarily with the mother, and under the terms of the decision-making responsibility (“custody”) arrangement, the mother had final decision-making responsibility over medical matters. The mother was opposed to vaccinations in general and questioned the accuracy of Covid-19 information circulated by public health authorities. She did not want their daughter to receive the Covid-19 vaccine. The daughter was also opposed to receiving the Covid-19 vaccine. The father wanted their daughter to … Read More
How to Set Aside (Cancel) a Separation Agreement: Part 2
As Part 1 of this series explained, courts generally respect the arrangements negotiated by parties in separation agreements, but can “set aside” (cancel) a separation agreement for several different reasons. Part 1 discussed two common grounds, (i) misunderstanding of the nature or consequences of the agreement, and (ii) duress, undue influence, fraud, misrepresentation, or public policy reasons. This Part 2 covers another common ground, failure to meet the financial disclosure requirements of the Family Law Act. Financial disclosure is the key obligation in family law. One of the most common reasons separation agreements are set aside (canceled) is for lack of financial disclosure or inadequate financial disclosure. Under the Family Law Act, parties cannot waive financial disclosure before entering into a separation agreement. Under the Family Law Act, the court can set aside a separation agreement if a party failed to disclose to the other significant assets, or significant debts … Read More
How to Set Aside (Cancel) a Separation Agreement: Part 1
Courts generally respect the arrangements negotiated by parties in separation agreements. However, under the Family Law Act, there are several grounds on which a court can “set aside” (cancel) a separation agreement. A party seeking to set aside a separation agreement must show the court their matter falls within one of these grounds and then convince the court to exercise its discretion in their favor and set aside the agreement. A recent case illustrates two of the most common grounds to set aside a separation agreement: (i) if a party did not understand the nature or consequences of the domestic contract; and (ii) where there is duress, undue influence, fraud, misrepresentation, or for public policy reasons. Radosevich v Harvey involved an appeal of a lower court decision. The appellant, Ms. Radosevich, had sued her former family law lawyer, Ms. Harvey, for being negligent in the negotiation of her separation agreement. … Read More
The Top Four Family Dispute Resolution Options
Most separating spouses do not resolve their parenting, support, and property issues in court. In fact, Canada’s Divorce Act requires separating spouses and their lawyers to try to resolve these issues through an out-of-court process unless it is inappropriate to do so. This can be a cheaper, faster, and less acrimonious way to settle family law disputes than traditional court litigation. These out-of-court options are referred to by the general term ‘family dispute resolution process’ (FDR). The most common forms of (FDR) processes, are negotiation, collaborative family law, mediation, and arbitration. This can be formal negotiation between lawyers or more informal negotiation between the parties themselves, with or without lawyers. Negotiation can occur when only one party has a lawyer, and the other party does not. Most separating couples try negotiation first before proceeding to other forms of FDR. Collaborative family law is a form of negotiation, that attempts … Read More
Three Things To Know About Separation Agreements
Separation agreements are legal contracts created by two spouses, after separation. Separation agreements set out each spouse’s rights and obligations on issues such as parenting, finances, property, and support. Both married spouses and common-law spouses can enter into a separation agreement. Separation Agreements are Faster and More Economical Than Going to Court Traditional court litigation can be time-consuming and expensive. It can take years to reach a resolution in court. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since the beginning of the COVID-19 pandemic, the courts have an even larger backlog. The court process is also expensive, and the costs are unpredictable. When negotiating a separation agreement outside of court, parties get to decide the pace and are in more control of the costs. Issues to Address in a Separation Agreement Separating spouses … Read More
Limitation Periods in Family Law
A limitation period is the amount of time within which the law permits one to bring a legal claim or action. Claims started after a limitation period has ended can be barred. Under the Limitations Act, there is a general two-year limitation period. In family law there are several different limitation periods that prospective and current family law clients should be aware of. Under the Family Law Act, married spouses may make a claim for equalization of net family property within the earliest of (a) two years after the marriage is terminated by divorce or judgement of nullity; (b) six years after the spouses separate and there is no reasonable prospect that they resume cohabitation; or (c) six months after the first spouse’s death. The court may extend the limitation period for bringing an equalization claim, if it is satisfied that (a) there are apparent grounds of relief; (b) relief … Read More
Corona Divorce: Worldwide Increase in Divorce Rates and Inquiries After Coronavirus Quarantine
Divorce rates and inquiries have dramatically increased across the world because of lockdowns brought by governments intended to stop the spread of COVID-19. The stress of the pandemic, coupled with being confined in close quarters for weeks, added financial worries and increased childcare responsibilities are thought to be behind this increase. Back in March, Baroness Shackleton of Belgravia, one of the UK’s most eminent family law lawyers told her peers at Westminister: “The prediction amongst divorce lawyers is that following self-imposed confinement it is very likely that the divorce rate will rise.” She further noted: “”One only has to imagine what it’s going to be like when families are sealed in a property for a long period of time.” As China emerged from lockdown in March, numerous cities across China reported large increases in divorce filings. Specific numbers are not available as China only releases statistics on divorces annually. Saudi … Read More
Five Common Myths about Divorce
Both Spouses Need to Consent to Divorce In Canada, if one spouse wants to divorce, they do not need to seek their spouse’s consent to divorce. Canadian courts will grant a divorce under three grounds: if spouses have been separated from each other for a year without reconciling; if a spouse has proven adultery occurred during the marriage and they have not absolved their spouse; and if one spouse proved they received mentally or physically cruel treatment from their spouse. The Spouse Who Earns Less Income Always Receives Spousal Support Unlike child support, separated and divorced spouses do not have an automatic right to receive spousal support when their marriage ends. Separated spouses may be entitled to receive spousal support. There are several factors which give rise to an entitlement to spousal support. These factors include the length of the marriage or relationship, the roles each spouse played in the … Read More
Five Reasons Why You Should Choose Collaborative Divorce
One: It’s Faster Traditional litigation can be a lengthy, time-consuming process, and it can take years to reach a resolution. With litigation, the courts decide when and how a matter moves forward. Even at the best of times, many courts have a large backlog. Since mid-March 2020, the courts in Ontario have suspended regular operations due to the COVID-19 pandemic. While the courts have continued to hear emergency matters and have recently expanded their scope of operations, they will not resume normal operations until July 6, 2020 at the earliest. There inevitably will be a large backlog when the courts reopen. Most collaborative professionals, along with mediators and arbitrators, continue to work during the pandemic by offering their services virtually. Two: It’s More Economical Collaborative divorce often costs less than going to court. The court process is expensive, and its costs are unpredictable. Traditional litigation requires a lot of preparation, … Read More
The Impact of COVID-19 / Coronavirus on Family Law
The current COVID-19 pandemic has dominated our working and private lives. It is not surprising that the pandemic has greatly impacted all areas of family law and has created unprecedented challenges for separated parents. Self-isolation and social distancing orders have presented a host of challenges for parents dealing with access and parenting arrangements. Many parents have lost jobs or suffered other economic losses during the pandemic which has left them unable to fulfill their current support obligations. An increase in domestic violence has been another unfortunate result of the pandemic, which may increase the need for restraining orders and peace bonds. While the Ontario Superior Court of Justice and the Ontario Court of Justice have suspended regular operations, they continue to hear urgent family law matters. The closure of the courts highlights the need for cooperation between parents and their counsel during these times. At Gilbertson Davis LLP, we have … Read More
COVID-19 / Coronavirus: The Ontario Superior Court of Justice Expects to Further Expand the Scope of Matters to be Heard Virtually
On May 5, 2020, the Ontario Superior Court of Justice issued a Notice to the Profession, Litigants, Accused Persons and the Media advising of the Continued Suspension of in-court matters to July 6, 2020. This Notice further advised the Superior Court will continue to hear matters virtually and expects to shortly further expand the scope of matters that will be heard virtually. On March 15, 2020, the Chief Justice of the Ontario Superior Court of Justice released a Notice to the Profession advising that all scheduled family law hearings were adjourned until further notice. However, the Ontario Superior Court of Justice continued to hear urgent family law matters such as: requests for urgent relief relating to the safety of a child or parent (e.g., a restraining order, other restrictions on contact between the parties or a party and a child, or exclusive possession of the home); urgent issues that must … Read More
COVID-19 / Coronavirus: Access to children with additional health risks
Sharing custody of a child or children can be difficult at the best of times. With the additional stress of the COVID-19 crisis, shared custody and access adds further strain to this relationship. Parents are forced to make difficult decisions about their child’s wellbeing while balancing parenting arrangements often ordered by the courts, and additional challenges posed by mandatory public health protocols. Parents with children who have additional needs or are at increased risk of exposure to COVID-19 are likely to face additional difficulty during this crisis with the court becoming involved where parties cannot resolve their conflicting views. Many parents have sought to suspend access or seek sole custody of their child during the crisis, citing fears for their child’s health. The onus is on the party seeking to restrict access to provide specific evidence or examples of behaviour or plans by the other party that are inconsistent with … Read More
COVID 19 / Coronavirus-Blended Families
Given the current COVID-19 crisis, many families may be struggling to adjust to alternative custody and parenting arrangements, especially with blended families. Although emotions may be running high and current arrangements not ideal, the case law has been clear: “None of us know how long this crisis is going to last. In many respects we are going to have to put our lives “on hold” until COVID-19 is resolved. But children’s lives – and vitally important family relationships – cannot be placed “on hold” indefinitely without risking serious emotional harm and upset. “ In Ribeiro v Wright, 2020, ONSC 1829 the separated parties had joint custody of their son since 2012. The son had always resided primarily with the mother, with the father having access on alternate weekends. The father, prior to the COVID-19 outbreak, had brought a motion to increase his parenting time, however this had not yet been … Read More
COVID-19 / Coronavirus: Can I take my child out of the province or out of the country?
Given the recent COVID-19 crisis which has caused significant upheaval for many families across the world, many parents may be considering the impact of COVID-19 on their ability to travel or relocate with their child. Relocating or travelling with a child following the breakdown of a relationship is a commonly contested issue as any relocation by one party may make access or visitation with the child difficult. The relocation may be due to a new job, moving closer to family following the separation, moving to a new school or simply for a change of scenery; regardless of the reason, parties should be aware of their rights, and the other parents rights, to move their child or children out of the province or to another country. The leading Supreme Court of Canada case on this issue is Gordon v. Goertz, which developed a two-fold test to determine whether the move should … Read More