Lawyers Using Technology to Continue Serving Clients during the Pandemic

Lawyers Using Technology to Continue Serving Clients during the Pandemic

Lawyers Using Technology to Continue Serving Clients during the Pandemic

The COVID-19 pandemic has changed everybody’s lives over the past months. It has certainly had a huge impact on the ability of people to obtain common legal services in the way they are accustomed.

Social distancing, self-isolation, and sheltering in place have put severe restrictions on lawyers’ ability to hold traditional office meetings. Also, the courts are currently closed to all but the most urgent types of cases and the limited hearings that are taking place are generally only by video conference with judges and lawyers interacting remotely.

Fortunately, thanks to technology many important legal processes can continue despite the current restrictions. Many lawyers now offer video conferencing and telephone meetings. In family law, lawyers have been conducting multi-party settlement meetings (with lawyers, clients and any other needed participants) using videoconferencing with everyone participating from their own home or office.

Contracts, including separation agreements or marriage contracts, can be signed electronically thanks to the Ontario Electronic Commerce Act, which has actually been in force for a number of years.

Electronic signatures are not, however, permitted for wills and powers of attorney. Since many people need to have these documents executed despite the current meeting restrictions, the Ontario government has recently made a temporary change to the legal requirements for the signing of wills and powers of attorney (POAs).

While electronic signatures are still not permitted on wills and POAs, the strict requirement that the person making the will or POA sign it in the physical presence of two witnesses, has now been relaxed. Instead the person signing the will or POA and the two witnesses (one of whom must be a lawyer or licensed paralegal) may all link up using video conferencing technology and each may sign a separate copy of the will in the virtual presence of the others with the result that the combined three documents will be recognized in Ontario as a properly executed will or power of attorney.

Marc A. D’Heureux

Lawyer

Marc A. D’Heureux Family Lawyer Durham Region

Author |Marc A. D’Heureux | Family Lawyer
Marc focuses his practice on family law. He has years of experience handling all aspects of family law including prenuptial agreements, divorce, child custody, support, and division of property.  Contact

Recording Your Spouse To Prove “Bad Behaviour” May Do More Harm Than Good To Your Children

Recording Your Spouse To Prove “Bad Behaviour” May Do More Harm Than Good To Your Children

Some parents may feel they can “prove” themselves to be the better parent, or that the other parent’s behavior is not in the children’s best interest, by recording their children, or the other parent, surreptitiously.   Is it worth it?

There have been many cases dealing with the issue of whether these recordings are admissible.  As with most issues in family law, the answer is dependent on the particular facts of the case.  In many cases, even if the recording would be admissible under the rules of evidence, a judge will exclude it because the prejudice outweighs its probative value.  By the time the argument is made at Court, the damage to the relationship with the children, and with the other parent, has already been done.

In the very recent DeGiorgio case, Justice Mackinnon talks about the “embarrassment to the child and the potential damage to the father-daughter relationship were (the daughter) to know that he was recording the episode for potential use in court.”[1]

In an emotionally fraught time, and often from a place of fear of losing the child, a parent may feel that the attempt to discredit the other, or prove what is perceived to be bad behavior in the other, is well-intentioned and ultimately in the child’s best interest.  This approach is not new, of course, as many an affidavit in family court is rife with examples of the other parent’s downfalls.  In certain situations, it is not only appropriate but necessary to inform the Court of actions that endanger the child, whether physically or emotionally.  But how that information is collected and shared, the context in which the situation happens, and the potential harm to the child must all be considered.

In this digital age, recordings are so easily captured and shared.  But we must remain vigilant as to the motivation behind the recording and the consequences of releasing the recording, particularly when the person making the recording intentionally does not inform those being recorded that it is happening.

[1] DeGiorgio v. DeGiorgio 2020 ONSC 1674 (SCJ) per Mackinnon J, para 36

 

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

I Am Separated – Do I Need To Make Or Change My Will?

I Am Separated – Do I Need To Make Or Change My Will?

I am separated – do I need to make or change my Will?

I am always surprised at how many people do not have a Will, despite having children and significant assets.  Of course, facing our own mortality is not a pleasant experience and many of us delay and rationalize until something happens in our lives that forces the issue.  A loved one becomes ill or passes away, or their marriage ends and their family law lawyer raises the issue.  Certainly, this is one of the first issues I address when meeting with a family law client.  In short, a Will is an essential document which will almost certainly ease the burden for those you leave behind.

Dying without a will can have serious and unintended financial consequences.  If you are separated from your spouse, the consequences are likely to be even more significant.  You probably do not intend for your estranged spouse to inherit most or even all of your estate should you predecease him or her, but this is what is likely to occur if you do not have a Will.   You may be in the process of negotiating or litigating the division of family assets and you may not have given any thought to what happens to your share of the assets if you die before the division is complete.  No doubt you want your children or your parents or your dog to get your assets before your former spouse but, without a Will, you have no say.  Your property will be distributed pursuant to the Succession Law Reform Act which gives the surviving  spouse the first $200,000 and half of the remainder.  This may result in a significantly different division of assets than would have taken place in the family law proceedings. So, make a Will and then you have at least some control.

The reason you have only some control is that your spouse can elect to set aside the Will and proceed with a division of property under the Family Law Act as though both parties were still alive.  But that’s fine.  He or she has the same entitlement as if you were alive.  After your property is equalized under the FLA, your Will governs the distribution of your remaining assets.

Estate planning is an important part of #separation, #divorce, and #equalization.

Written by Simonetta Lanzi

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Will Covid-19 Change Your Equalization Payment?

Will Covid-19 Change Your Equalization Payment?

When married spouses separate or, in some instances, a common law relationship ends, one of the most significant issues the spouses will tackle is the division of property.   If the spouses were married, that division is determined by Part I of the Family Law Act (“FLA”). In short, the FLA provides for an equal sharing of the increase of the net assets which accumulated during the marriage.

Of course, the value of the assets to be divided may change after the date of separation, sometimes significantly.  If this happens before an agreement or order has been made which resolves the issue of property division, what happens? We are currently in the midst of the COVID-19 pandemic, which has resulted in the most significant upheaval to the world economy in living memory.  Stock markets around the globe are more volatile than they have been in decades.  The changes to the value of equity stocks in particular have been swift and substantial.  A spouse who has a portfolio which has lost significant value post separation due to the market forces caused by the pandemic is likely to question whether determining the division of property based on the date of separation value of his or her assets is fair.

The FLA provides for an unequal division of assets where it would be unconscionable to divide assets equally.  Of course, the million dollar question is, at which point does an equal division become unconscionable?  The leading case, a decision of the Ontario Court of Appeal, Sierra v. Sierra, provides some guidance on the factors to be considered, while reminding us that the threshold is very high.  In fact, very few decisions have been rendered in favour of the party seeking an unequal division.  However, in light of the unprecedented events of the past two months, perhaps the threshold should be reconsidered, even if only on a temporary basis.

The Court of Appeal in Sierra makes the point that a temporary decrease in value is not enough.  There is no clarity in the case law, however, as to what time-frame constitutes “temporary.”  In the midst of a pandemic, should we be waiting it out and dividing property once market value returns to what it was before our economy was devasted?  Although the court does not have jurisdiction to make such an order, if you are negotiating a resolution to this issue in a collaborative, settlement-oriented way, it could be an option, if both parties agree.

Covid-19 is likely to have an impact on how spouses negotiate their Separation Agreements, and when.  Deciding whether to settle now, wait it out, or leave it in the hands of the court once we are able to bring matters to court again, will be part of the discussion.

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Negotiating a Separation Agreement

Negotiating a Separation Agreement

One of the first decisions to be made when negotiating a separation agreement is the date of separation.  This date is important for two reasons:  first, one of the grounds parties can rely on to obtain a divorce is that they lived “separate and apart” for at least twelve months.  Second, the increase in the value of property to be divided is calculated as of the date of separation in order to then determine property division.

More and more often couples remain in the same home even after having separated while they determine future parenting arrangements and for financial reasons.  For family law purposes, it is indeed possible to be separated while living under the same roof.  It all comes down to how we define “living separate and apart.”

A host of factors is taken into account although even the most obvious, an actual physical separation, may not necessarily signify living separate and apart.  There is case law supporting a conclusion that spouses who live in separate homes do not necessarily meet the definition of “living separate and apart.”   Even the fact that both parents continue to attend family functions or other activities involving children does not necessarily mean that they are not separated, although it may be a factor.

There have been trials to determine the separation date.  The dates suggested by each spouse could be as much as several years apart.

Given the impact of a separation date on the financial outcome of the separation, and on the timeline to obtain a divorce, it ought to be agreed too early in the negotiations.

Author | Simonetta A. Lanzi | Family Lawyer
Simonetta practices family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact

Facebook Divorce

Facebook Divorce

Facebook divorce” refers to the increasing number of marital breakdowns that have occurred as a result of information found or discovered on social networking sites like Facebook.

In recent years, Canadian Courts have allowed postings on social media sites, predominantly Facebook, to be used as evidence in family law matters. Social media sites are often one of the first sources the opposing party will look to in an effort to find incriminating evidence. Anything you post on Facebook may be used against you in your family law matter.

Social media stalking skills have become invaluable to the legal world for divorce cases in particular. Online photo albums, profile pages, news feed comments, status updates and tweets have become a great source for evidence and leads. Even if content on Facebook is deleted, it can later be retrieved by forensic experts and potentially used in court as evidence in divorce proceedings.

Facebook posts are used often as evidence in custody applications and applications to vary child and spousal support. In custody applications, Facbook evidence is used to prove that one of the parents does not act in the best interest of the child or is unsuited to care for the child. Posts that refer to or pictures of high-end purchases can be used to demonstrate the ability to pay support.

The most common way to gather information on Facebook is from the couple’s mutual online friends who still have access to the spouse’s profile and posts. Many times the spouse will “de-friend” a partner but forget about their shared friends, who can access information on their profile. Another way of uncovering useful information is from searching the profiles and posts of the suspected “other man” or “other woman”.

Evidence that may be found on social networking sites, which may potentially be used against you in a “Facebook divorce” situation include;

  • A friend “tags” a compromising photo of you drinking at a party or vacationing when you claim you have no time to see your children or dispute allegations of infidelity.
  • Posts about your location or activities that conflict with business trips or child visitation matters.
  • Posts that suggests infidelity or deception, such as a Facebook status change to “single, but looking”.

Facebook is sited as the cause for divorce in an increasing number of divorce cases because Facebook is creating online (and offline) affairs. Facebook makes it easy for old love interests to reconnect and foster relationships that challenge the foundation of the marriage and lead to divorce.

Tips for Facebook Users Facing a Divorce

  • Be careful what you post on Facebook.
  • Know that what you say or post may be used against you in court, and divorce lawyers use Facebook as a matter of fact when gathering evidence.
  • You do not own the content on Facebook. Facebook has the right to do certain things with your content even without your knowledge.
  • Ask friends and family members to refrain from posting potentially damaging information about you on their Facebook page.
  • Familiarize yourself with privacy settings to ensure there is no way personal information can be accessed.

Lawyers advise users of Facebook and other social media who are headed toward a divorce or custody battle to edit their profiles, be cautious about updating statuses and double check to see who is really a “friend.”

How Long Does Child Support Continue?

How Long Does Child Support Continue?

child_supportIf your support agreement includes a specific date for when child support will end – such as when the child reaches the age of majority or for as long as the child is going to school full-time – the answer to that question is straight forward: you must continue to pay child support until the date specified in your order or agreement. 

If your maintenance order or agreement does not include a specific end date, however, the answer is more complicated. 

You can assume that you must pay child support at least until the child reaches the age of majority, but you may have to continue paying child support for some time longer. How much longer depends on your child’s particular living situation and circumstances. 

Under the Family Law Act in Ontario, child support is limited to someone under the age of 18 or over the age of 18 and in a full time program of education. Child support must be paid as long as the child remains dependent. A dependent child is any child under the age of 18 unless:

  • the child has married, or
  • the child is at least 16 years old and has “voluntarily withdrawn from parental control”.

A child who is 18 or older may also be considered dependent if they cannot support themselves because:

  • they have a disability or illness, or
  • they are going to school full-time. (This usually continues until the child turns 22 years old or gets one post-secondary degree or diploma, but a judge may order support to continue even longer.)

When the judge decides how much support should be paid for a child who is 18 or older, they take into account any earnings or income the child receives from other sources.

Child support continues even if the parent receiving it gets married or starts to live with someone else.

A Child’s Legal Guide to Separation and Divorce – Resource

A Child’s Legal Guide to Separation and Divorce – Resource

Separation and Divorce in Ontario Child's Guide

Separation or divorce is the result of problems between parents and not the fault of the child. But it does affect children and they may have questions about the law of separation and divorce. It is often difficult to answer questions in terms that children will understand. The Ministry of the Attorney General published a well rounded resource that explains legal terms relating to all aspects of separation and divorce and child matters in an easy to understand format.

 

 

The guide,  “A Child’s Legal Guide to Separation and Divorce” contains sections covering;

  • Separation and Divorce
  • Custody
  • Access
  • Parental Disagreements
  • Changes in Custody and Access
  • Parents’ New Partners
  • Money Issues
  • Getting Help
  • Dictionary of Terms

Also included is a list of the books you might want to read about how most children feel when their parents separate or divorce.

Download the Guide:
A Child’s Legal Guide to Separation and Divorce

Published by the Ministry of the Attorney General  Source – Family Law in Ontario

Separation & Divorce – Documents Required to Change a Child Support Order

Separation & Divorce – Documents Required to Change a Child Support Order

If you need to get or change a child support order under the Child Support Guidelines, the court will require income information.

Child Support Guidelines are determined by a support table based on the support paying parent’s annual income and number of children entitled to support.

Departing from the support table amount is allowed in certain circumstances, shared custody costs, or in some cases of undue hardship.

Documents must be provided by the parent receiving support, only in cases where the amount of child support requested is different from the amount on the support table or in addition to the table amount. 

If the request for the amount of child support is the same as the amount on the applicable Child Support Guidelines support table, without variation or any claim for contribution to special or extra-ordinary expenses, then only the parent paying child support is required to supply this information.

  • A copy of your personal income tax returns filed with the Canada Revenue Agency for each of the three most recent taxation years together with all material that was filed with the returns.
  • A copy of every notice of assessment and re-assessment that you have received from the Canada Revenue Agency for the three most recent taxation years.
  • (For those who are an employee) The most recent statement of earnings indicating the total earnings paid in the year to date, including overtime or, where such a statement is not available, a letter from your employer setting out that information, including your rate of annual salary or remuneration.
  • (For those who are self-employed) The following documents for the three most recent taxation years:
    1. the financial statements of your business or professional practice, other than a partnership; and
    2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom you do not deal at arm’s length.
  • (For those who are partners in a partnership) Confirmation of your income and draw from, and capital in, the partnership for its three most recent taxation years.
  • (For those who control a corporation) The following documents for its three most recent taxation years:
    1. the financial statements of the corporation and its subsidiaries; and
    2. a statement showing a breakdown of all salaries, wages, management fees or other payments or benefits paid to, or on behalf of, persons or corporations with whom the corporation, and every related corporation, does not deal at arm’s length.
  • (For those who are a beneficiary under a trust) A copy of the trust settlement agreement and copies of the trust’s three most recent financial statements.
  • (For those who receive income from employment insurance, social assistance, a pension, workers compensation, disability payments or any other source) The most recent statement of income indicating the total amount of income from the applicable source during the current year or, if such a statement is not provided, a letter from the appropriate authority stating the required information.

Source: Ontario Ministry of the Attorney General

Separation & Divorce – Creating a Parenting Plan

Separation & Divorce – Creating a Parenting Plan

Creating a Parenting Plan

parenting-planA parenting plan outlines more information and flexibility than traditional custody agreements because they are negotiated and discussed between the parents and address all aspects of child custody. Parents can incorporate as much or as little information as needed and  agree to change the plan as your situation requires. A parenting plan outlines the parenting arrangements for a child including a schedule of the times each parent will spend with the child and information about who will make major decisions about education, medical care and more.

The parenting plan needs to be practical, according to each parent’s situation and in your child’s best interests. It’s important to set out ground rules about what information you will share with each other about the children and to decide how you will discuss parenting issues that come up from time to time. This includes information about education and school work, health and dental care, counselling, and who can attend school events, parent-teacher meetings and extra-curricular activities.

What to Consider When Making a Parenting Plan

  1. Living arrangements and parenting schedules
  2. Vacation, holidays and special days
  3. Health care
  4. Education
  5. Extra-curricular activities
  6. Religion
  7. Culture
  8. Grandparents and extended family
  9. Travel
  10. Communication between parents
  11. Making changes to parenting plan
  12. Solving Problems
  13. Child support

Source for detailed discussion points on each topic: Department of Justice

Resources

Legislation

Separation & Divorce – Daycare Part 3

Separation & Divorce – Daycare Part 3

daycare3There is an end in sight when it comes to daycare expenses.  But parents don’t always agree on the age at which daycare is no longer necessary.  Daycares are usually licensed to take children up to and including the year they turn 12 years old.  Some parents are comfortable leaving a child alone at home as early as age 10; some prefer to have them in care until age 12.    Perhaps a parent feels that it is not necessary to pay for before and after school daycare for an 11 year old, if the child is alone for only a half hour.  Maybe it makes a difference if the child would be left alone before, or after, school.  

Childcare then becomes not only a financial issue, but a parenting decision.  If possible, include a provision in your separation agreement about when you expect payments for daycare to cease.  Knowing how long each of you is prepared to contribute to childcare impacts both the child and the parent and should be part of any settlement discussions.    

As in most custody and access cases, the facts are specific to your situation and decisions are best made by you, the people who know your children best.  Whenever possible, try to prevent future arguments by planning ahead and negotiating child support issues, including when the childcare obligation ends, well in advance.  Separation agreements should look to the future and deal with foreseeable situations comprehensively.

Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact Simonetta A. Lanzi 

Related Links:

Family Law & Divorce

The Matrimonial Home & Divorce

Separation & Divorce – Issues Relating to Day Care – PART 1

Separation & Divorce – Issues Relating to Day Care – PART 2

Separation & Divorce – Daycare Part 2

Separation & Divorce – Daycare Part 2

Daycare costs change substantially over time, particularly in the early childhood years.  Depending on how young your child is, daycare will be for the full day and for the full year; once the child starts kindergarten, which is now full day in our jurisdiction, the cost will decrease to before and/or after school only.  Some daycares allow part-time arrangements, but most require full-time enrollment even if the child does not attend every day.  If you are sharing custody a week at a time, and only one parent requires daycare, special arrangements would have to be made if possible.

For the summer, daycare attendance will likely increase to full day again, depending on the parents’ work schedules.  Even if you have vacation time and plan to be home with the children, the daycare may require you to pay either a portion or the full amount of the daycare cost for the summer to keep the spot.  If you choose to put the child in camps, instead of daycare, this expense would likely be considered a childcare expense to be shared.  

If, however, you choose to put your child in a camp during your week or two of extended access, rather than staying home with him or her, the cost of camp would likely be only your responsibility.  If you either share the summer or each have a dedicated week or two of ‘vacation’ access, the presumption is that you will spend it with your child and have no need for daycare.  It may be your choice to have the child attend camp during the day in any event — don’t assume that the other parent will share the expense in that case.  Talk about it and try to agree ahead of time on how you plan to handle holiday childcare costs so that you both have a full understanding of the child support obligations.

Written by Simonetta A. Lanzi. Simonetta restricts her practice to family law, including matters regarding custody and access, child support, spousal support, property division and child protection, as well as uncontested divorces. Contact Simonetta A. Lanzi 

Related Links:

Family Law & Divorce

The Matrimonial Home & Divorce

Separation & Divorce – Issues Relating to Day Care – PART 1