A proceeding in family court begins when one person brings an application, in which she lists what she is seeking – for instance, custody of the children, child support, and so on.
Some people decide to use an arbitrator rather than going to court to resolve their issues after separation. Arbitrators, who may or may not have legal training, provide a binding decision just as judges do. They must follow Canadian law in reaching their decisions, which can be appealed.
Balance of probabilities
Different standards of proof are required by different courts in order to establish guilt/liability. In family court, the standard of proof is on a balance of probabilities, which means the judge has to believe that one person’s story is more likely than not to be true as compared to the other person’s story. This is a much lower standard of proof than that required in criminal court, which is beyond a reasonable doubt.
Best interests of the child test
This is the test used to determine appropriate parenting arrangements for children after the parents separate. Judges must consider such criteria as which parent can offer the child the greatest stability, which parent will maintain contact with the child’s extended family, which parent has the greater ability to meet the child’s needs, the presence of family violence and so on. The wishes of the child will be considered if the child is old enough to communicate them.
Child and Youth Family Services Act (CYFSA)
This is the legislation in Ontario that governs child protection and the operation of the Children’s Aid Society across the province.
This is the money that is paid by the parent with whom the children spend less time to the other parent to help with the financial support of the children. It is determined by examining the income of the person who will be paying the support.
Children’s Law Reform Act
This is the legislation in Ontario that governs child custody and access. Section 24 sets out the best interests of the child test.
A contact order sets out the time a child is to spend with someone other than their parents; most commonly grandparents.
The parent with decision making responsibility makes the significant decisions about the child’s life and well-being, including decisions related to health, education, culture, language, religion and spirituality and significant extra-curricular activities. Decision making responsibility can be given to one parent or shared between the two parents.
Division of property
When married people separate, they must divide up all of their belongings. The law requires that any property they accumulated while they were married be shared equally between them, regardless of who paid for it. If the two people cannot agree on this, they can go to court to get an equalization of net family property. Property includes physical things like houses, cottages, trailers, cars, boats and furniture but also includes pensions, RRSPs and other financial investments. It also includes debts, for which both people are responsible.
Common-law relationships do NOT provide an automatic right to an equal sharing of the property. People leave with the property they brought with them, plus whatever they can prove they bought during the relationship. To receive a share of property accumulated over the course of the relationship, the common-law spouse would have to prove to the court that she has made contributions, direct or indirect, to its value.
This is the federal law that applies to people seeking a divorce. It also sets out how parenting arrangements, support and property division are to be handled. It is a law that applies to people everywhere in Canada. Section 16 sets out the best interests of the child test.
Family court duty counsel lawyers provide immediate legal assistance to low-income people who do not have a lawyer. They can give advice about legal rights, obligations and the court process as well as help negotiate and settle issues and review or prepare court documents to be filed. For those who qualify, they may be able to provide same-day representation in the courtroom. They cannot assist with property claims or trial preparation or represent someone at trial.
Family Law Act
This is an Ontario law that governs division of family property, support and restraining orders.
Family Law Information Centre (FLIC)
These offices in family courts are a centre for information about family law. An advice lawyer and other staff provide basic family law information as well as information about how to start a family court proceeding. These services are free.
This is the home where the family lived, whether it was owned or rented by them. It can be a house, an apartment, a trailer, a boat – anywhere they lived as a couple. It is possible to apply to the family court for an order for exclusive possession of the matrimonial home. Whichever person is successful in this can then change the locks on the home, and the other person is not allowed on the property. This does not affect the ownership of the home – just who can live there.
This is a process in which the separating couple can meet with a third party to try to come to a compromise on issues of disagreement. The mediator cannot force the people to agree to something but can make suggestions and help them work toward a common position.
Motions are court proceedings brought on interim matters, while the case is moving toward a final trial. They are commonly used in family court to establish interim custody, access and child support arrangements and to obtain restraining orders.
Office of the Children’s Lawyer (OCL)
The OCL can become involved with a parenting arrangements case if ordered to do so by the family court. Part of the Ministry of the Attorney General, the OCL determines if their involvement is necessary based on the information provided in the intake forms from each party. The age and needs of the child will affect whether the OCL appoints a clinician or a lawyer (or both) to a file. The OCL does not determine the outcomes in parenting cases, but makes recommendations based on their work with the parties, child and others who have regular contact with the family. When making court orders, the judge will consider the position presented by the OCL lawyer or the report filed by the clinician along with other evidence that has been submitted by the parties.
A parenting order sets out parenting time and decision making responsibility between the parents.
This is the plan made by each parent describing how they intend to parent post-separation. It could include information about proposed access arrangements and proposed communications systems with the other parent as well as more direct parenting ideas.
This describes the time the child spends in the care of each parent, including time that they are not physically with that person (i.e. when attending school).
The home (parent) where the child spends most of their time.
Most family law cases involve a settlement conference, when the people, their lawyers and the judge meet outside the courtroom to try to resolve the case or at least some of the issues.
This is support paid by the spouse with the higher income to the other spouse in order to address any financial differences that are the result of the marriage (for example, the woman who stays home for 20 years to raise the children is likely to receive spousal support from her husband if he continued working through those years).
Supervised parenting time
This is the arrangement made for parenting time when it is not appropriate for a parent to be alone with the child. This can be informal (for example, with a family member) or formal (at a supervised access centre).
This is the arrangement made when it is not safe for the parents to be together to exchange the children. It can be informal (for example, exchanging the children in a public place, through relatives or at a school or daycare) or formal (at a supervised access centre).