In the Canadian commercial law context, electronic trials (paperless trials), while not the norm, have been embraced by some members of the judiciary as early as 2014.  For example, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, called upon members of the judiciary and counsel to make greater use of modern information technologies in court.  Justice Brown ordered an electronic trial over the objection of counsel.  In another commercial litigation case of the Ontario Superior court of Justice, Chandra v CBC, Justice Graeme Mew in 2015 held an electronic trial, in that all documents referred to at trial were stored on a database managed by the registrar and displayed on video screens in the courtroom.  Witnesses testified remotely by video conference and were shown trial documents displayed on a screen both in the courtroom and in the room in which the witness was present.  In the courtroom was seen a split screen with one frame displaying the document and the other frame showing the live witness. According to Justice Mew, sound quality was excellent, counsel and registrar were able to efficiently manage the process, and the flow of testimony was not markedly less spontaneous than it would have been if the witness had been present in court. The entire experience was, from the perspective of Justice Mew, “entirely satisfactory.”

Paperless trials and for that matter, paperless motions, reduce court time, because counsel, witnesses and the judge don’t have to search through volumes of documents to find the correct document. Instead, the document is viewed by all on a screen in the court room. Documents can be easily located in an electronic document brief stored and managed by the court clerk.   Documents that are presented to a witness during trial can be scanned at the end of each day and downloaded and marked as a trial exhibit in a separate Trial exhibit folder. Lawyers and the trial judge don’t have to transport huge boxes of documents and instead                                                  can simply carry multiple documents on their laptop, tablet or USB key.

Internet access and video monitors could be easily set up in courtrooms. There are already some courtrooms at particular courthouses that are wired for internet connectivity and are equipped with monitors. For example, a courtroom at the Barrie courthouse, used in criminal trials is equipped with this technological capability.  There is the risk of technological failure but this can be remedied by backing up regularly and ensuring that documents can be printed in case the internet is interrupted.  Document management software already exists and is being used in commercial litigation cases.  Trial decisions could be made quicker as the judge can click on a hyperlink referred to in a factum or submissions to go directly to the case and paragraph that is being referenced. In Ontario, The Guide Concerning e-Delivery of Documents in the Ontario Superior Court of Justice, provides the protocols in place and format requirements for electronic court documents in the Ontario Superior Court. Most judges already have laptops that they use in the courtroom. Scanners could be made available to clerks to download any documents presented during the course of a trial or at a motion.

In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable. In the family law context, The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit videoconferencing. E-filing of documents is permitted in a limited way but with the Covid- 19 crisis, use of e-filing of documents has been expanded. In family law mobility cases, Video link up with courts in other jurisdictions, together with e-filing of documents would make family law cases much timelier and affordable.  The technological capability has been proven in the commercial law context.  It is now time to use this know how in the family law context.

 

 

With Covid-19 our family courts have virtually ground to a halt. Yet, Skype has been readily available for many years and Zoom meetings are now routinely being used by members of the public in this time of social distancing.

In 2014, Justice D.M. Brown, in Bank of Montreal v Fabish, a commercial litigation case, had this to say about the Canadian legal system:

Let me express my profound frustration as a judge who has tried to encourage both counsel and fellow judges to make greater use of modern information technologies in our Court. Those who make up the public court system – be they the judges adjudicating the cases or the counsel pleading them – provide a service to members of the public who face legal problems…As a service it must be alive to the way in which the community it serves handles and communicates information…Our community has undergone radical changes in the way it handles and communicates information.  Why should we be able to expect that treating courts like some kind of fossilized Jurassic Park will enable them to continue to provide a most needed service to the public in a way the public respects? How many wake-up calls do the legal profession and the court system need before both look around and discover that they have become irrelevant museum pieces?   Our Court must choose: are we a Court of the Past or a Court of the Future? I vote for a Court of the Future…

In the commercial law context, electronic trials have been conducted resulting in a paperless court. Witnesses have been permitted to provide testimony by way of video conference.  Such evidence is given orally, under oath or affirmation and is observable “live” as it would be with the witness present in the courtroom.  Questions are asked and answered in the usual way.  The witness can be closely observed. Findings of fact can be made, and credibility assessed.  Indeed, in its June 2015 report, Best Practices for Civil Trials, a Task Force of the Advocates Society, video technology was recommended by the Advocates Society and recognized by the courts to have technologically advanced such that courts found that it is possible to make findings of fact and decisions about credibility based on video conference evidence.

Criminal courts have permitted witnesses to testify outside the courtroom and in a location other than the courthouse where the trial is taking place by means of closed-circuit television or otherwise. Many modern courthouses have witness rooms linked to a courtroom by a closed-circuit television system (CCTV).

In the family law context, Justice Ellen Murray, in the 2015 case, Paiva v. Corpening permitted the mother who was residing in Denmark to testify by Skype.

In 2014, The Supreme Court of Canada stated in Hryniak v. Mauldin that a culture shift is needed to ensure a just adjudication of disputes that is proportionate, timely and affordable.

The Ontario Family Law Rules and the Ontario Rules of Civil Procedure permit video conferencing.

However, despite, the “go ahead” to use technology, the family law courts, have all but shut down because of Covid-19.  Why not use Skype or Zoom to conduct first appearance court, motions, conferences and in fact trials? Instead, all family law matters have been indefinitely adjourned. The backlog of cases will be unfathomable.   Meanwhile, the risk of children remaining in abusive households, increased incidence of domestic violence during this period of isolation and of children being alienated from parents because of this pandemic goes unchecked.  Only extremely urgent matters will be heard by teleconference and there are not enough phone lines to handle all these matters.

Task Forces are now being initiated to study the issue.  In the meantime, the public, whom the legal system is supposed to service, is waiting and has been waiting for many years for reforms, including technological reforms, to be implemented.

Covid-19 is a wake-up call to the legal profession in general but it is even more important in the family law context to provide a better response to this pandemic then to close the family courts indefinitely without any real-time solution for the families that we serve.  I, too, like justice Brown, vote for a court not of the past but of the future.  With Covid-19, we all have now been propelled into the future and we can no longer wait for technology to take hold and be accepted by the judiciary and by lawyers.  The public deserves a better and more immediate response.

 

 

 

 

 

 

 

 

 

 

By Rod Grierson, lawyer at Galbraith Family Law

1986, oh what a year. Oprah was just starting her decades-long reign as the queen of television, Tom Cruise thrilled audiences with his plane maneuvers in Top Gun, people thought parachute pants were fashionable, and the government of Canada passed a progressive piece of legislation named the Divorce Act. Like parachute pants, and unlike Oprah and Tom Cruise, the Divorce Act has not aged well. In recent years there has been growing consensus among legal scholars, lawyers, judges, and individuals going through the divorce process that the Divorce Act is in need of some freshening up. The Liberal government must have been listening, because in 2018 they passed Bill C-78, which contained many meaningful changes to the Divorce Act. It is anticipated that the changes will come into effect in the summer of 2020. This blog post will provide a few of the most impactful changes to the Act.

 

Replacing “custody” and “access” with terminology related to “parenting”

The 2019 amendments to the Act represent a paradigmatic shift in thinking about parenting for divorced couples with children. Possibly the most noticeable change is a shift away from the archaic concepts of “custody” and “access” to more child-focused terminology relating to “parenting”. Having their roots in property law, “custody” and “access” connote meanings of possession and ownership. Those in the legal community have long argued that these terms have contributed to the adversarial nature of family law and have created winners and losers in custody disputes. Under the amendments, courts will now make “parenting orders” that allocate or schedule “parenting time” and “decision-making responsibility.”

Similar to access, parenting time refers to the time a person in the role of the parent is responsible for a child, including time when the child is in school or daycare. Parenting time will be incorporated into parenting plans that are intended to be living documents that may be revised as children grow older and circumstances change. Most importantly, the amendments allow for parenting plans to be revised without court involvement, encouraging parents to work together to amend parenting plans as

necessary.

It is important to note that the amendments do not presume equal parenting time between the parents. The only consideration when allocating parenting time is the best interests of the child test. Courts will only provide equal parenting time if it is convinced that it is in the best interests of the child.

Decision-making responsibility mirrors custody in that it relates to significant decisions about the child’s health and education. However, unlike custody orders, courts will now be able to allocate different decision-making responsibility to each parent. This may be helpful when joint decision-making would not work in all instances, but the parties are able to agree on decisions relating to particular subject matters.

It is hoped that the terminology changes will reduce conflict between the parties, focus on the well-being of the children, and provide greater flexibility to changes in parenting plans.

 

Promoting the best interests of the child

The best interests of the child has been a longstanding guiding principle in Canadian family law. There is virtually universal consensus that the best interests of the child is the appropriate basis upon which to make decisions related to children. Despite the primacy of the best interests of the child standard, the Act did not offer courts any best interests factors. The 2019 amendments provide a non-exhaustive list of best interests factors and a framework for approaching those factors, namely, that courts shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

 

Contact orders

Special people in a child’s life, such as grandparents, will now be able to seek “contact orders” to be able to spend time with the child. Additionally, the amendments will recognize that when determining the best interests of the child, the relationship of grandparents and other important people in the child’s life shall be considered. There is no presumption, however, that grandparents or other important people in the child’s life will have contact with the child. A person seeking contact with a child must seek leave of the court to make an application for contact or parenting time.

 

Changes of residence and relocation

 One of the most contentious and heavily litigated issues in separation and divorce is residence changes and relocation of children. There has been a great deal of criticism that the current legal framework does not provide sufficient certainty to parties dealing with relocation. The 2019 amendments set out a framework for changes of residence and relocation that includes three broad components:

  1. Notice of a proposed change of residence or relocation,
  2. Additional best interests criteria for relocation cases, and
  3. Burdens of proof that will apply in certain relocation cases.

When applying these principles the court must consider any significant impact the move would have on the relationship with a person with parenting time or decision-making responsibility.

A person with parenting time or decision-making responsibility will be required to provide notice to any person who also has parenting time or decision-making responsibility of their impending move. The move is considered a relocation if it has significant impact on the child’s relationship with others. The relocating person will be required to provide 60 days notice in advance of the proposed move and provide a proposal about how the parenting arrangements could be changed. The notice provisions apply whether or not the person is intending to move with the child.

If a person objects to the move, they will be required to attempt to resolve the issues out of court first. If resolution fails, a person can object to the move by use of a standard form or by filing a court application. If an objection is brought through the standard form, the person proposing the move will have to bring a court application to seek permission to move. If there is no objection 30 days after the notice of move was received, the person proposing the move will be entitled to move on the date stipulated in the notice.

In addition to the best interests of the child criteria, there are seven additional criteria that a court shall consider when faced with a relocation request. In its analysis a court is no longer to consider whether the person would move if they were not allowed to move with the child.

The burden of proof of relocation depends on the circumstances. If parents have equal time with the child, the person proposing the move would have to demonstrate why the move is in the child’s best interests. Alternatively, if one parent has primary responsibility of the child, the parent opposing the move would have to demonstrate why the move is not in the child’s best interests.

 

Family violence

The 2019 amendments make explicit reference to the deleterious effects of family violence on children and include several provisions to address family violence. The definition of family violence is defined as any conduct that is violent, threatening, or a pattern of coercive and controlling behaviour, or that causes a family member to fear for their safety. The definition recognizes that incidences of family violence do not necessarily constitute a criminal offence.

The court will be under a duty in any divorce proceedings in which a party seeks a parenting order or child or spousal support order to consider any civil protection, child protection or criminal proceedings involving the parties. When making determinations of the best interests of the child, the court shall consider the presence of family violence and its impact on the ability of a person engaged in family violence to care for and meet the needs of the child.

 

Access to justice

The federal government has made access to justice a priority in the amendments. One of the ways they have chosen to promote access to justice is by encouraging the use of alternative dispute resolution mechanisms, such as mediation, negotiation, and collaborative law. Parties will now have an obligation to attempt alternative dispute resolutions to the extent that it is appropriate to do so.

 

Conclusion

This blog post has attempted to provide a brief overview of the upcoming changes to the Divorce Act. The changes are a welcome update to the Act and will hopefully provide individuals seeking a divorce greater certainty in the process and assist in facilitating greater cooperation between the parties throughout the process.

 

 

Having full financial disclosure is the baseline for negotiation of most domestic contracts. Financial issues that could pertain to support, property and succession are contained within them. All too often, a client provides counsel with a draft separation agreement, provided by the opposing side, that lacks full financial disclosure, expecting that turnaround can be achieved quickly.

Before opposing sides can begin negotiation, a lawyer must advise their client to seek out full financial disclosure from their spouse as well as to prepare their own.

Knowledge of both financial positions is crucial to best represent a client so that a fair and equitable domestic contract can be prepared. Inclusion of each parties’ financial position bears so much weight that without it, a domestic contract can be deemed invalid or set aside in accordance with the Family Law Act, R.S.O. 1990 or current case law.

Should both parties disclose their full financial positions honestly, future proceedings related to the
domestic contract can be avoided. However, failure on behalf of one party to accurately provide their
financial position can jeopardize the entire domestic contract.

The following provisions outline certain criteria that can be relied upon when setting aside a domestic
contract: “Pursuant to s. 56(4) of the Family Law Act, R.S.O. 1990, c. F.3, a court may on application
set aside a domestic contract or a provision in it, a) if a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made; b) if a party did not understand the nature or consequences of the domestic contract; or c) otherwise in accordance with the law of contract.”

In addition to the legislation on setting aside a domestic contract, guiding principles were established
in the case of Miglin v. Miglin 2003 SCC 24, which are now known as the Miglin Principles. In this case, Linda Miglin was seeking spousal support from Eric Miglin. However, the spouses had already entered into a separation agreement that included a full and final release of any future spousal support claims. The court thus established the Miglin Principles in two stages.

The first stage involves two steps.

Stage one: The first step

The first step at para. 80 says: “… the court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.” At
para. 81, the court provides a non-exhaustive list of “factors to consider in assessing the
circumstances of negotiation and execution of an agreement.” The list includes circumstances of
oppression, pressure or other vulnerabilities and the conditions under which the negotiations were
held, which includes full financial disclosure.

The second step

The second step can be found at para. 84. “Where the court is satisfied that the conditions under
which the agreement was negotiated are satisfactory, it must then turn its attention to the substance of the agreement. The court must determine the extent to which the agreement takes into account
the factors and objectives listed in the Act, thereby reflecting an equitable sharing of the economic
consequences of marriage and its breakdown. Only a significant departure from the general objectives of the Act will warrant the court’s intervention on the basis that there is not substantial
compliance with the Act.”

Stage two

While not essential to outline in full for the purposes of this topic, stage two of the Miglin Principles would consider whether or not the separation agreement should be disregarded or given little weight as there may have been changes in the parties’ circumstances that were not contemplated.

At para. 87 the court states: “…on the bringing of an application under s. 15.2, the court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.” The test for setting aside an agreement remains high, but no longer needs to be “radically unforeseen,” nor does it have to “demonstrate a causal connection to the marriage.” (para. 88).

For more information on the Miglin Principles please refer to Miglin v. Miglin.

For the lawyer, negotiating a domestic contract without full financial disclosure puts him or her at a
disadvantage. Quite obviously, partial or no financial disclosure makes giving independent legal advice almost impossible. If a file proceeded without said information, a lawyer could be exposed to a negligence claim if the contract is challenged and set aside.

Therefore, asking a client to provide full financial disclosure as early on as possible is highly
recommended for best practices. This will ensure smooth negotiations and will avoid the potential for
future reviews or contentions.

Harrison Notkin, of Galbraith Family Law Professional Corporation, graduated with a bachelor of law
from the University of Edinburgh in Scotland and completed his Canadian accreditation at the
University of Toronto. Harrison was called to the Ontario bar in 2015 and focuses his practice
primarily in family law.

In our profession, we often meet people after they’ve made a life-changing decision. Often, the individual does not realize the legal implications of their actions.  In this blog, I will discuss the ‘what ifs’ and provide an outline of the ‘rules’ that go along with major life decisions.

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 1) If my child(ren) live 50/50 with each parent, there is no obligation to pay support

This may be true but is likely not. If child(ren) spend more than 40% of their time at each parent’s home, this is referred to as shared parenting. In these circumstances child support can be different than the child support guidelines. The first step in determining child support obligations in a shared parenting arrangement is to determine each parent’s income for support purposes and determine their child support obligation in accordance with the Child Support Guidelines.

The second step is to determine the ‘set-off’ amount of child support. This is determined by deducting the lower support payment from the higher payment. For example:

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We all know about lawyers being involved in the divorce process, but what about other professionals? Family professionals are often used in the collaborative practice process and may assist parties through their separation, both inside and outside of Court.

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We all know about lawyers being involved in the divorce process, but what about other professionals? Family professionals are often used in the collaborative practice process and may assist parties through their separation, both inside and outside of Court. Livia Jozsa, lawyer with Galbraith Family Law in Barrie sits down with Sue Cook to ask her about her work as a family professional/family therapist and how she can help both lawyers and clients through the separation process.

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Parental Alienation is harmful to children. The negative impact of alienation may include depression, substance abuse, low self-esteem, self-hatred, guilt, poor interpersonal relationships, distorted view of reality, and self-doubt.

Most of my clients don’t realize how harmful it is to the child’s development to try to separate the child from the other parent during your access time. The child should not have to hide the fact that they may wish to speak to their mom during your access time or that having a picture of their mom by their bedside might help them fall asleep. It is not healthy for the child to simply erase the mom during their time at your home. Similarly, mom should not try to erase you from the child’s life. You should be invited to watch the child’s extra-curricular activities. Mom should let the child have a picture of you to look at when they are feeling lonely about not being with you. Mom should let the child speak freely to you on the phone at their own initiative. Mom should share all information with you about the child’s progress in school and about significant events, good or bad.

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