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Using life insurance to secure support

By Kerry Fox | June 7, 2017 | 0 Comments

It’s not uncommon for payors of support- whether it’s child support or spousal support- to have their support obligations secured by a life insurance policy. If the payor dies prematurely, the life insurance policy is available to satisfy the remaining balance of their support payments. A court can order that support be secured by way…

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The price of delay- tackle your family law problem right away

By Kerry Fox | June 1, 2017 | 0 Comments

One of the principles behind our legal system is that once you’re served with documents, if you don’t do anything to defend yourself, then, at some point, you can be noted in default and the case will proceed along without you. Once an order is made against you, you’ll get served with a copy of…

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Joint family venture for common law spouses

By Kerry Fox | May 10, 2017 | 0 Comments

The law of joint family venture and unjust enrichment allow an individual in a common law relationship to make an equitable claim against the assets of their partner. The right of married spouses to an equalization of net family property is a statutory right enshrined in the Family Law Act. Married individuals have an automatic…

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Parenting coordinator fees

By Kerry Fox | May 2, 2017 | 0 Comments

When parents have an acrimonious relationship post separation, a court can impose- or the parties can agree- that they will retain a parenting coordinator to mediate, govern and make ongoing decisions about co-parenting. While this seems like a reasonable choice to make when the alternative is to keep taking custody and access matters back in…

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Power of sale, the matrimonial home, and the untitled spouse

By Kerry Fox | April 21, 2017 | 0 Comments

Sometimes, when couples separate, one spouse stays in the matrimonial home for years following the separation, even when they are not on the title to the house. While it’s not unusual for one spouse to hold the title to the house in their name as sole owner, if you are planning on living at the…

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Spousal support calculator

By Kerry Fox | April 4, 2017 | 0 Comments

If you’re looking for a rough idea of how much you might be entitled to in spousal support (based on your respective incomes, and length of marriage), there’s a free online tool that can help. My Support Calculator is a scaled down version of the software that lawyers in Ontario use to calculate spousal support,…

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Is unbundled service right for you?

By Kerry Fox | April 3, 2017 | 0 Comments

Many clients don’t know that they have the option of hiring a family lawyer on an unbundled basis rather than on a full retainer. “Unbundled service” can mean different things depending on the context. If you’re involved in litigation, it can mean hiring a lawyer to draft pleadings, for example, or hiring a lawyer to…

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Estate planning post separation

By Kerry Fox | February 15, 2017 | 0 Comments

Once you’ve separated, it’s advisable to prepare a new Will as soon as possible. Otherwise, if you die without a Will, or with an older Will where your spouse was designated as a beneficiary, you soon-to-be ex stands to inherit under your estate. While a divorce will automatically revoke any designation you made with respect…

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Motions for substituted service

By Kerry Fox | January 18, 2017 | 0 Comments

Any initiating court document, including an Application for an uncontested divorce, must be served in person on the responding party. This is called “special service”. Normally, you would hire a professional process server to serve the materials on the individual at their home or place of work. However, if you’ve been out of touch with…

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Are self-represented litigants entitled to costs?

By Kerry Fox | October 7, 2016 | 0 Comments

In theory, if a self-represented litigant is successful at a hearing, or a trial, they are entitled to pursue a claim for costs provided they can establish entitlement. The Family Law Rules provide that a successful party is entitled to their costs- albeit, most of the time, it refers to legal fees paid to a…

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Answering a family case out of time

By Kerry Fox | October 3, 2016 | 0 Comments

If the responding party lives in the U.S. or Canada, they have 30 days in which to respond to a family court Application once it has been served on them. The moving party, the Applicant, will file their affidavit of service in the court record confirming when the materials were served on the responding party.…

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FRO enforcement powers curbed by court

By Kerry Fox | September 28, 2016 | 0 Comments

While there is no shortage of complaints against the Family Responsibility Office for not doing enough to enforce support orders, a case this past spring illustrates that, at times, FRO may be overly zealous in it’s pursuit of payors. In DeBiasio v. DeBiasio, there was an existing order for payment of child support. When the…

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Financial support by step-parents

By Kerry Fox | September 8, 2016 | 0 Comments

Given how common second marriages and blended families have become, you would think that there would be a clearly defined set of rules for when a step-parent becomes financially responsible for the biological child of their ex spouse or partner. In general, if an individual voluntarily assumes responsibility for a step-child (and treats the child…

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Second marriages, death and joint tenancy

By Kerry Fox | August 23, 2016 | 0 Comments

Married spouses often hold real estate in joint tenancy, as opposed to tenants in common. The principle of joint tenancy is that both parties own the property as an undivided whole and, immediately upon the death of one, the surviving joint tenant acquires an undivided 100% interest in the property. The property never falls into…

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Intersection between family law and bankruptcy claims- Part 2

By Kerry Fox | August 16, 2016 | 0 Comments

Once an order or agreement characterizes lump sum payments as spousal support, a recipient cannot change that characterization (i.e. to an equalization claim) in order to avoid the payor’s motion to reduce support. When spousal support is characterized as a lump sum, it doesn’t change the fact that, like any other support obligation, if it…

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Intersection between family law and bankruptcy claims- Part 1

By Kerry Fox | August 10, 2016 | 0 Comments

If they had the choice, many payees would probably prefer to receive a lump sum spousal award rather than periodic payments. If payments are periodic, you take the risk that they might not be paid on time, or else not be paid at all. Since most payors don’t have an ability to pay lump sum…

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Assessments by the Office of the Children’s Lawyer

By Kerry Fox | August 4, 2016 | 0 Comments

In high conflict custody and access situations, the Office of the Children’s Lawyer may become involved in preparing a report to the court regarding custody and access. A report is prepared by an OCL investigator (usually a social worker) after interviewing the child, the parents, any other relevant parties, and obtaining information from the child’s…

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How long can you delay in bringing foward a family law claim?

By Kerry Fox | July 21, 2016 | 0 Comments

In Ontario, for most civil claims, you have two years after discovering the cause of action (or 2 years from the date when you should have discovered the cause of action) in which to initiate court proceedings. In family law, you can make a claim for the equalization of net family property up to 2…

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Voluntary vs. involuntary retirement

By Kerry Fox | July 13, 2016 | 0 Comments

Depending on the respective ages of yourself and your spouse when you separate, it’s wise for a payor of spousal support to consider including a provision in a separation agreement that allows him or her to retire at a certain age, particularly if they plan on taking early retirement, or retiring as soon as they…

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It’s Time for Justice

By Kerry Fox | July 5, 2016 | 0 Comments

Andrew Feldstein is a Toronto family law lawyer who is helping increase awareness about the availability of unbundled legal services to assist self-represented litigants. In the latest instalment of his “It’s Time for Justice” series, he discusses the problem faced by many litigants in family court who would prefer to hire a lawyer, but can’t…

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Notice of administrative dismissal

By Kerry Fox | June 29, 2016 | 0 Comments

Parties who start an action in family court have a certain period of time within which to have their matter set down for trial. One year after the case was started, the court will send out a notice of approaching administrative dismissal to either yourself, if you are self represented, or your lawyer. It’s not…

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Benefits of Joint Applications for divorce

By Kerry Fox | June 26, 2016 | 0 Comments

Under the Family Law Rules, when applying for an uncontested divorce, you have the option of starting the Application and then serving it on the responding party, or else cooperating with your spouse and filing the Application, jointly, as co-applicants. The primary benefit of a joint application is that it doesn’t need to be filed…

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Can you benefit by not providing proper financial disclosure?

By Kerry Fox | June 22, 2016 | 0 Comments

According to the Court of Appeal in Gray v. Rizzi, the answer to the above question is ‘no’. In this case, a final order from 2005 awarded significant child and spousal support to the wife even though the husband, who was self-employed, had never made proper financial disclosure to the wife. Had he made the…

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Private case management in family law

By Kerry Fox | June 14, 2016 | 0 Comments

In 2015, a Toronto lawyer launched a private case management service for family law cases. Why would a litigant in family law consider such a service when there is already a version of case management in the court system? When parties are involved in court proceedings in Ontario, the process will include access to either…

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Threshold for establishing the need for an urgent motion

By Kerry Fox | June 8, 2016 | 0 Comments

A recent Ottawa case is a reminder that the threshold for establishing the need for an urgent motion prior to a case conference is a very high one. Absent urgency or an emergency, parties are expected to attend a case conference prior to bringing a motion. What qualifies as urgency is based on a two…

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Best practices for dealing with joint debts

By Kerry Fox | May 27, 2016 | 0 Comments

Most couples who are separating have various debts in joint names- the mortgage, a secured or unsecured line of credit, and credit cards. Ideally, once you’ve separated, you want to separate your finances as soon as possible. Especially joint debts, because you can’t control if and when your spouse will decide to draw down the…

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When do the police have an obligation to enforce the terms of a custody/access order?

By Kerry Fox | May 20, 2016 | 0 Comments

In a recent family court case in Ontario, the Toronto police brought a motion to remove the police access provisions contained in a custody and access order. This motion was filed only 6 days after the original order (on consent) was made. Unless you have a clause in an order or an agreement requiring police…

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British company to lend money to fund Canadian divorce litigation

By Kerry Fox | May 13, 2016 | 0 Comments

If you stand to acquire substantial assets in your divorce, but you don’t have the money to pay a lawyer, Novitas, which is a U.K. firm specializing in lending money to fund divorce litigation, may be able to assist you. In the fall of 2016, the firm plans to open up an office in Toronto.…

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Province to increase court fees by 36%

By Kerry Fox | May 6, 2016 | 0 Comments

The fees for family court will be increasing as of July 1st, 2016. Currently, there is a $157.00 fee to start an Application (whether for Divorce, or any other matter), and then another $280 fee to put the Application on a hearing list. You can obtain fee waivers if your income falls below a certain…

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Summary judgment to overturn separation agreement

By Kerry Fox | May 3, 2016 | 0 Comments

Summary judgment is available when there is no genuine issue for trial. Because it’s not a trial and evidence can be given by affidavit rather than testimony, summary judgment is a cheaper, more expeditious way to achieve resolution of an issue. However, there are questions as to when summary judgment is, in fact, appropriate as…

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Motions for substituted service

By Kerry Fox | April 26, 2016 | 0 Comments

Any initiating court document, including an Application for an uncontested divorce, must be served in person on the responding party. This is called “special service”. Normally, you would hire a professional process server to serve the materials on the individual at their home or place of work. However, if you’ve been out of touch with…

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Online calculation service for child support introduced

By Kerry Fox | April 11, 2016 | 0 Comments

The Ministry of the Attorney General has introduced a new online service for calculating, or recalculating, child support. Amendments to family law legislation allow a government agency to offer calculations (or recalculations) of child support to reflect changes in the income of the payor. These calculations can be done for both the table amount of…

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Online calculation service for child support introduced

By Kerry Fox | April 11, 2016 | 0 Comments

The Ministry of the Attorney General has introduced a new online service for calculating, or recalculating, child support. Amendments to family law legislation allow a government agency to offer calculations (or recalculations) of child support to reflect changes in the income of the payor. These calculations can be done for both the table amount of…

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Large costs award in family case gains media attention

By Kerry Fox | April 4, 2016 | 0 Comments

Following a 36 day trial, an Ontario judge awarded close to $200,000.00 in costs against a responding party in a protracted custody and access dispute where the father was awarded sole custody of his daughter. In Jackson v. Mayerle, the father had spent about $300,000.00 in legal costs, and the mother had spent $200,000.00. Because…

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Large costs award in family case gains media attention

By Kerry Fox | April 4, 2016 | 0 Comments

Any initiating court document, including an Application for an uncontested divorce, must be served in person on the responding party. This is called “special service”. Normally, you would hire a professional process server to serve the materials on the individual at their home or place of work. However, if you’ve been out of touch with…

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When can you deduct legal fees from your taxes?

By Kerry Fox | March 30, 2016 | 0 Comments

When evaluating the deductibility of costs related to obtaining spousal or child support payments, CRA used to distinguish between costs related to “establishing a right” vs. costs related to enforcing a “pre-existing right”. Child support was always considered a pre-existing right of the child, based on the requirement contained in provincial and federal legislation that…

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When can you deduct legal fees from your taxes?

By Kerry Fox | March 30, 2016 | 0 Comments

When evaluating the deductibility of costs related to obtaining spousal or child support payments, CRA used to distinguish between costs related to “establishing a right” vs. costs related to enforcing a “pre-existing right”. Child support was always considered a pre-existing right of the child, based on the requirement contained in provincial and federal legislation that…

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Contingency fees in family law

By Kerry Fox | February 6, 2016 | 0 Comments

Should family law lawyers be allowed to take on cases on a contingency basis? Many people are familiar with the refrain of personal injury lawyers: “you don’t pay unless we win your case.” In the realm of personal injury law, if you’re suing someone because of injuries you’ve sustained in a car accident, for example,…

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Contingency fees in family law

By Kerry Fox | June 2, 2015 | 0 Comments

Any initiating court document, including an Application for an uncontested divorce, must be served in person on the responding party. This is called “special service”. Normally, you would hire a professional process server to serve the materials on the individual at their home or place of work. However, if you’ve been out of touch with…

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Retirement doesn’t terminate spousal support

By Kerry Fox | May 29, 2015 | 0 Comments

A payor of spousal support, Robert Cossette has recently found out that it’s not so easy to side- step spousal support obligations by taking early retirement. When he took early retirement from the government at the age of 55, and began receiving his pension, he hoped his reduction in income would constitute a “material change…

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Tips & Tricks- emergency motions

By Kerry Fox | May 6, 2015 | 0 Comments

Clients will tell me that the police have advised them to bring an emergency motion for certain types of relief- including exclusive possession of the matrimonial home, or for custody. The fact is that family court is not set up to hear urgent, or emergency, motions except in very limited circumstances. Where someone is threatening…

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When will a court reduce child support arrears?

By Kerry Fox | April 15, 2015 | 0 Comments

At one point, a payor father, who originally had a child support order issued against him based on imputed income, owed the mother over 600K in child support arrears. In a subsequent court action in 2006, he was successful in having these arrears lowered to 60K on the basis that the previous income imputed to…

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Tips & Tricks- court lists

By Kerry Fox | April 3, 2015 | 0 Comments

The list of cases being heard everyday in family court is now posted online, and can be searched by municipality. The list doesn’t get posted until the end of the day before the hearing date. If you’re involved in a court case, you can also find a list posted at the courthouse every morning which…

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Tips & Tricks- travel consent letters

By Kerry Fox | March 27, 2015 | 0 Comments

An important term to include in any separation agreement where children are involved is an acknowledgement that neither parent will unreasonably refuse to provide a travel consent letter to the other party for trips with the child outside the country. Whenever a child is travelling outside of Canada with only one parent, you need to…

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Suspension of driver’s license & passport

By Kerry Fox | March 24, 2015 | 0 Comments

The Family Responsibility Office has the ability to suspend a payor’s driver’s license, as well as their passport, effectively preventing them from driving or travelling outside of the country. These are a few of the tools the FRO can employ in order to compel an individual who is in arrears to start paying their court-ordered…

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Inheritances excluded from net family property

By Kerry Fox | March 23, 2015 | 0 Comments

Many individuals expect to inherit money from their parents at some point. If you’re married, it’s worth thinking about how you plan to use this inheritance, since how you use the money, or where you invest it, will have implications for the division of property if your marriage ever breaks down. When people separate, the…

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Formalities required for domestic contracts

By Kerry Fox | March 18, 2015 | 0 Comments

The Family Law Act allows couples to enter into domestic contracts governing what will happen in the event of a future breakdown in the relationship. In section 55 of the Act, it stipulates that any domestic contract must be in writing, signed by the parties, and witnessed. In Gallacher v. Friesen, the Ontario Court of…

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Imputing income for child support

By Kerry Fox | March 9, 2015 | 0 Comments

When is it reasonable to impute income to a payor of child support? In Tillmanns v. Tillmanns, the mother sought an order against her ex when he was laid off from his job and unable to continue paying the agreed-upon amount of child support. Under the Child Support Guidelines, a court has the discretion to…

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Appealing an arbitrator’s award

By Kerry Fox | March 5, 2015 | 0 Comments

In order to avoid the delays inherent in the court process, and the possibility that the judge hearing the issues might not possess any specialised knowledge of family law, parties can choose to hire an arbitrator instead. An arbitration hearing may be conducted much like a traditional judicial hearing, except that the arbitrator’s time is…

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Foreign divorces

By Kerry Fox | March 2, 2015 | 0 Comments

A recent Ottawa family law case examines when foreign divorces will be recognized by the Ontario courts. In Kadri v. Kadri, the parties were married in Lebanon in 1988 and went on to have 3 children (who are now adults). Although they resided in several different countries during their marriage, they lived in Lebanon from…

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Common law spouse entitled to share of estate

By Kerry Fox | February 23, 2015 | 0 Comments

A Divisional Court case from earlier this year considered whether a common law spouse can be considered a dependent entitled to support under the Succession Law Reform Act. A common law spouse doesn’t have the same property rights as a married spouse. In Ontario, when a married individual dies, their spouse has the right to…

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How much should kids contribute towards education costs?

By Kerry Fox | February 4, 2015 | 0 Comments

The Child Support Guidelines require a payor parent to pay his or her proportionate share of extraordinary expenses. One of these expenses is postsecondary education. The guidelines also require that the court consider the means of the child to contribute towards the costs of his or her education, as well as the reasonable expectations of…

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Tips & Tricks- dealing with the Family Responsibility Office

By Kerry Fox | February 4, 2015 | 0 Comments

Many family law clients and lawyers bemoan the lack of assistance provided by FRO in enforcing support orders. As a recipient of support, what can you do to help yourself and assist the process? Delays There are significant delays between the time an order is issued and when FRO actually receives the order to start…

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Surrogacy in Ontario- how can a lawyer actually help?

By Kerry Fox | November 5, 2014 | 0 Comments

The need for surrogacy services in Canada is high and demand outstrips supply. If you happen to find a surrogate (otherwise known as a “gestational carrier”) to carry a child for you, and she agrees not to be compensated except for her reasonable expenses, then you fall within a lucky minority. In Canada, unlike in…

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Why hire a lawyer to draft a separation agreement?

By Kerry Fox | October 9, 2014 | 0 Comments

I hear this question a lot: If I already have an agreement in principle with my ex, why should I go to the expense and bother of hiring a lawyer to prepare a formal separation agreement? The simple answer is that hiring a lawyer is the best way to make sure that your ex cannot…

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B.C. court fees deemed unconstitutional

By Kerry Fox | October 7, 2014 | 0 Comments

The Supreme Court has concluded that the administrative fees charged to litigants in order to access the B.C. supreme court are unconstitutional. In the B.C., if your case goes to trial, whether it’s a family matter or a civil matter, you are charged for every day of court time that is required. In the case…

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Final orders at case conference

By Kerry Fox | October 1, 2014 | 0 Comments

One of the important first steps in any family law proceeding is the initial case conference. The purpose of a case conference is to allow the parties and their lawyers to appear before a judge in order to discuss where the case is at, and see if there are any opportunities for settlement. Although the…

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Tips & Tricks- spouse won’t agree to sell house

By Kerry Fox | July 16, 2014 | 0 Comments

One of the first issues that becomes contentious when people split up is: “What are we going to do with the matrimonial home?” Sometimes, one spouse will want to stay at the property and assume the balance of the mortgage. Other times, both parties recognize that the house needs to be sold because neither spouse…

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Postnuptial agreements

By Kerry Fox | May 29, 2014 | 0 Comments

I came across this article today from Forbes. It’s an American article, but much of the advice given by the author is equally relevant if you live in Ontario. If a woman is leaning towards giving up her career in order to stay home with the kids (at least temporarily), what financial provisions should be…

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New e-book on father’s rights

By Kerry Fox | May 9, 2014 | 0 Comments

A free e-book on father’s rights has come out this past week, published by the Canadian Constitution Foundation, ‘Review of Ideology and Dysfunction in Family Law- How Courts Disenfranchise Fathers‘, by author, Grant Brown. Two of the chapters are entitled “Disenfranchised Fathers” and “Deadbeat Judges”, which should give you a good idea as to the…

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Contempt in family court

By Kerry Fox | April 12, 2014 | 0 Comments

It’s not uncommon for couples who have a written agreement or court order to refuse to adhere to the terms of the agreement or order, particularly when it comes to custody and access arrangements. It’s certainly not unheard of for a non-custodial parent, for example, to fail to return a child at the agreed- upon…

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There’s an app for that

By Kerry Fox | March 10, 2014 | 0 Comments

Our Family Wizard is a new app that aims to facilitate co-parenting between separated and divorced parents. The app stores important family information (i.e. medical contacts, emergency phone numbers, information on upcoming doctor’s appointments), and has a custody and access calender so both parents always know what the access schedule is. The journal feature allows…

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Does shared parenting reduce conflict?

By Kerry Fox | March 6, 2014 | 0 Comments

In a National Post article, Ryan Glass (with the Canadian Equal Parenting Council) writes about the need for family law reform in the area of parenting after separation and divorce. Specifically, he points to the possibility that a private member’s bill introduced in December, Bill C-560, might result in amendments being made to the Divorce…

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Marriage -differences between rich and poor

By Kerry Fox | February 26, 2014 | 0 Comments

The Institute of Marriage and Family Canada has analyzed the marriage patterns of the wealthiest Canadians, and found that marriage rates for that group have been the stable for the last 35 years. However, only 12% of people who fell within the bottom quarterly of Canadians economically reported being married or living in a common…

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Limitation periods for common law couples

By Kerry Fox | February 21, 2014 | 0 Comments

The standard limitation period for starting a cause of action against someone is 2 years, under Ontario’s Limitations Act, 2002. However, in a recent family law case, the question was posed as to whether a claim for constructive trust involving real estate properties is also governed by this 2 year rule. In the case of…

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Support obligations of stepparents

By Kerry Fox | February 21, 2014 | 0 Comments

When a relationship ends, a stepparent can end up paying child support to a child of the marriage even if they do not have an ongoing relationship with that child. According to the Child Support Guidelines, a court can order both a biological parent to pay support and anyone else who stands in the place…

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Unbundled legal services

By Kerry Fox | February 21, 2014 | 0 Comments

Recently, the Law Society has allowed lawyers to offer unbundled legal services to clients who may not be able to afford full service representation. In the family law context, choosing to retain a lawyer for what is called ‘limited scope representation’ will allow clients to save money if it looks like their relationship breakdown is…

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Hamilton judge advocating for same-sex rights

By Kerry Fox | February 13, 2014 | 0 Comments

If you’ve been watching the news this week, you’ll know that the U.S. has declared that all same-sex couples, even those in states which don’t recognize same sex marriage, will receive the same rights as heterosexual couples in court proceedings, the prison system, and in bankruptcy proceedings. Interestingly, as this CBC article discusses, the movement…

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3 guardians allowed on B.C. birth certificate

By Kerry Fox | February 11, 2014 | 0 Comments

The first child to have 3 parents listed on their birth certificate in Canada is in the province of British Columbia. Under the new Family Law Act which was passed in 2013, a child can have up to 4 legal guardians listed on their birth certificate. In this recent case reported in the National Post,…

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Landing on your feet… there is life after divorce!

By Kerry Fox | January 28, 2014 | 0 Comments

A free interactive workshop for women hosted by improv comedian, Mary Harvey. Get your practical questions answered by divorce professionals and still have a laugh. If you are a woman in the midst of divorce proceedings, contemplating divorce, or recently out of a divorce- this workshop is designed for you. Thursday, February 27th, 2014, 5:30-7:00…

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Legal services offered through CHEO

By Kerry Fox | January 18, 2014 | 0 Comments

Pro Bono Law Ontario and CHEO announced at the end of November that they will be partnering in order to provide free legal services to parents who have children that are being treated at the hospital. The legal services could include family law issues, employment law issues, and others.

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Presumption of equal shared parenting?

By Kerry Fox | January 18, 2014 | 0 Comments

Should there be a presumption of equal shared parenting in the courts- ie. where separated parents spend a relatively equal amount of time caring for their children? In an article in the National Post, Barbara Kay argues that it’s time for this presumption to gain a foothold in family law disputes. Her article points out…

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New property rights for common law couples in B.C.

By Kerry Fox | January 18, 2014 | 0 Comments

British Columbia’s new Family Law Act came into force on March 18th, 2013. Most notably, it confers family property rights upon common law couples. Previously, only married spouses were entitled to a division of property when their relationship ended. Now, any couple who has been living together for at least 2 years in a marriage-like…

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New documentary on divorce industry

By Kerry Fox | January 8, 2014 | 0 Comments

There’s a new film coming out on January 10th narrated by Dr. Drew Pinsky (of ‘Celebrity Rehab’ fame) critiquing the the dysfunctional divorce industry in the U.S. The movie, ‘Divorce Corp.’, explores the divorce industry- from what it costs to retain a lawyer, to the length of time it takes to get a divorce, and…

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