Family Law Information. for Aboriginal Families

Transcription

1 Family Law Information for Aboriginal Families

2 Family Law Information for Aboriginal Families

3 Family Law Information for Aboriginal Families

4 This booklet contains information about the law as it was at the time it was written. The law can change. Check the Ministry of the Attorney General website at for current information. This booklet does not contain legal advice or replace the specialized advice of lawyers or other experts.

5 INDEX 1. Introduction 2. The Legal Issues a) Divorce b) Division of Property c) Matrimonial Home I. On Reserve Lands II. Off Reserve Lands d) Decisions About Children e) Parenting Plan f) Judge Decides Child s Best Interest g) Parenting Arrangements I. Custody II. Access h) Child Support I. How Much Child Support Must be Paid i) Spousal Support j) Support Enforcement I. Status Indian II. Recipient or Child is not Status Indian 3. Options to Resolve Disputes a) Negotiation I. Separation Agreement b) Collaborative Family Law c) Mediation d) Arbitration e) Using the Court to Resolve Disputes 4. Courts in Ontario a) Family Rules and Forms b) Mandatory Information Program c) Case Conferences d) Motions e) Trials f) Motions to Change 5. Finding out More Information

6 1. INTRODUCTION When we separate from our partners, it is a very diffcult time; even more so when children are involved. This booklet will provide general information to everyone who is experiencing a relationship breakdown. It is not meant to provide specific advice on your family situation. The information contained in this booklet presumes that those of you that are parents will work together to meet the needs of your children. However in situations where domestic violence, abuse, mental health or addictions are a factor, working with your former partner to resolve your family disputes may not be realistic or safe. Making sure you and your child are safe is the number one priority. If you feel your safety is at risk, or the safety of your children is at risk, you should develop a safety plan. As part of your safety planning, write down the telephone number of your relevant local agencies should an issue of your safety or the safety of your children arise during the separation process. Indian Friendship Centre A Mediator/Family Justice Counsellor An Aboriginal Court Worker Your Band Social Worker Your Band Development Worker Your Band Community Base Worker Your Family Support Worker Family Violence Centre Local Transition House/Women s Shelter Police/RCMP Ministry of Community and Social Services Assaulted Women s Help Line Residential School Healing Services Lawyer Referral Services or Legal Aid Ontario or Family Court Worker (Speak with the Information Referral Co-ordinator at your local court offce)

7 a) If your Spouse is Violent If your spouse is violent towards you or your children, you can ask a judge for a court order to help protect you. Ask a lawyer, an aboriginal court worker, police offcer or Information Referral Coordinator for information on how to get a court order, such as a restraining order or a no-contact order. A restraining order means your partner has to stay away from you and your children. This is an order made by a family judge in family court. If the person who has a restraining order against them disobeys it, the police can arrest them. If your partner has been arrested for being violent towards you, a judge can make a No-Contact Order that directs your partner not to contact you or your children. 2. ThE LEgaL IssUEs It is important to understand the legal issues when separating from your former partner. This will help you in deciding what to do next. a) Divorce If you are married, the only way to legally end your marriage is to get a divorce. In order to get a divorce, you must start a court case and demonstrate to the court that your marriage has broken down. There are three ways to demonstrate this: 1. You and your spouse have been living separate and apart for at least one year before you apply for a divorce. 2. Your spouse has committed adultery. 3. Your spouse has been so physically or mentally cruel to you that you can no longer live together. If you and your former spouse agree about what each of you want, you may not need to appear before a judge. In many cases parties can simply file an affdavit that is reviewed by a judge in his or her offce. You cannot marry again until your divorce is final.

8 b) Division of Property Aboriginals living on a reserve are subject to the general application of provincial laws provided these laws do not conflict with the Indian Act. The laws for the division of property would apply regardless of whether the property was located on the reserve lands. According to Ontario s Family Law Act, marriage is an equal partnership. When a marriage ends, the partnership is over and property has to be divided. The equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse since the date of marriage must be shared. This is accomplished through an equalization payment, or an equalization of net family property. There are some exceptions to these rules. The law allows you to keep the value of some property that you have at the end of your marriage for yourself. This property is called excluded property. It includes: gifts you received during your marriage from someone other than your spouse property that you inherited during your marriage money that you received from an insurance company because someone died money that you got or that you have a right to get as a result of a personal injury, like a car accident The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it. Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage. The legal rules that you have to follow to calculate the value of your property and divide it between you and your spouse can be complicated. It is a good idea to consult a lawyer about how the rules apply in your case.

9 To give you an idea of how these rules work, we have set out the following illustrative steps. Remember that this is only a description of the general rules. There may be other rules and exceptions that would apply to the facts in your case. Step 1: Find out the value of the property you had on the date you separated. Your property is anything that is in your name or that belongs to you. You must list all your property, including property in other parts of the country and the world. For example, your list of property might include your home, a business, a car, furniture, a sound system, jewellery, savings in bank accounts, retirement savings plans, and your right to a pension, even if you will only get the pension years from now. Note: If you or your spouse have an interest in an Ontario pension, you must ask the pension administrator for a valuation of that interest. If you own some property together in both names, you each put half the value of the property on your list. Step 2: Subtract the value of the debts you owed on the day you separated. Money owing on credit cards, the amount left to pay on your house and a car loan are all examples of debts. List them at their value on the day of separation. Step 3: Subtract the value of property that the law allows you to keep for yourself. As noted above, this property includes gifts and inheritances received from someone other than your spouse during your marriage, money received from an insurance company because someone died, and money you got or have a right to get as a result of a personal injury.

10 Step 4: Subtract the value of property that you brought into your marriage less the value of debts Add up the value of all the property that you owned when you married as of the date of marriage. Note: Do not include your family home, even if you owned it on the date of your marriage. Subtract all the debts you had when you married, except for debts that were owed in relation to a matrimonial home (e.g. a mortgage). Value of property at separation minus Value of debts at separation minus Excluded property minus Value of property at marriage less debts (Step 1) (Step 2) (Step 3) (Step 4) = your share of the value of the family property Step 5: Find out if a payment is owning Compare the value of your share of the family property to the value of your spouse s share. Subtract the smaller amount from the larger amount. Divide the difference by 2. This is the amount that the spouse with the larger share must pay to the spouse with the smaller share. This payment is called an equalization payment. Note: If a person has more debts than property, the value of his or her share of the family property is zero. For instance, if you owed the bank $15,000 when you separated, and you have only $8,000 worth of property, the value of your family property is $0 for the purposes of calculating an equalization payment. Unlike married couples, there is no legislative requirement that property be divided for unmarried couples. Usually, houses, furniture, household belongings and other property belong to the person who bought them. However, if you have contributed, financially or otherwise, to property your partner owns, you may be able to claim a share in it. If you are not married and are considering making a property claim, you should seek the advice of a lawyer who has experience with family law.

11 c) Matrimonial Home The matrimonial home is where your family lives. Often it is the most valuable asset your family owns. There are different rules on how the matrimonial home is treated depending upon whether it is located on or off reserve lands. I. On Reserve Lands First Nations communities manage their reserve lands under: The Indian Act The First Nations Land Management Act; or A self-government agreement. Under the Indian Act, a band does not own reserve land but has the right to use it. Bands have different systems for assigning land and housing, including: Certificate of Possession, Land used by a person or family members through tradition or custom. Ontario courts do not have the authority to deal with matrimonial homes located on reserve lands. For example, the court cannot order the spouse with a Certificate of Possession to leave the matrimonial home so that the other spouse can live there. Even if both you and your spouse are named on the Certificate of Possession a judge has no authority to decide which spouse can stay. Nor can the court order the sale of your family home. This means that the spouse with custody of the children may have to leave the reserve with the children, if no alternative housing is available. The court can, however, order one spouse to pay money to the other in the amount that represents the spouse s share of the value of the matrimonial home. II. Off Reserve Lands Where the matrimonial home is located off reserve, both spouses have the right to occupy it. It does not matter if one person owned the home before you married. If you cannot agree on who will stay and who will leave, you may have to ask a court to make an order for exclusive possession. The court may also order the sale of the home and give directions on how the money will be divided between you.

12 The same law applies to same sex and opposite sex married couples, but it does not apply to couples who were never married. There is no legislative requirement that property be divided for unmarried couples. Generally, couples who live together do not have the same rights as married couples to a share in the value of property, including, in some cases the home they live in, unless the property is in both of their names, or they paid for it together. If you are not married and are considering making a property claim, you should seek the advice of a lawyer who has experience with family law. d) Decisions About Children Decisions about children must always be made in the best interest of the child. It is in the best interest of your child to have a close, stable and ongoing relationship with both parents whenever possible. Sometimes this is not possible, especially in cases where there is violence or abuse against a parent or child. When you separate, you will need to make some very important decisions, such as: Who will your children live with? What role will the extended family have after separation? How much child support should be paid? What school will your child attend? How will your child be raised spiritually? Which doctor will your child see? When will your children see the parent or family members they do not live with? e) Parenting Plan A Parenting Plan is a document that explains the decisions you have made about caring for the children. For example, it describes: How each parent will spend time with the children. How you will share information about the children with the other parent. How you will make decisions about the children. How you will deal with other parenting issues.

13 A parenting plan can be an informal arrangement between the two of you, or it can be part of your separation agreement or court order. If the arrangements are informal, they can be diffcult to enforce. f) Judge Decides Child s Best Interests Aboriginal parents living on a reserve are subject to provincial laws provided these laws do not conflict with the Indian Act. A Métis or non-status Indian person comes under provincial family law. All of these laws about parenting focus on what is in the best interest of the child. So for the most part, these laws apply to an Aboriginal person regardless of their status. Where parents are separating from one another and are unable to agree on the plans for the children, the law says that the judge must consider the following when making a decision in a child s best interests: The love, affection and emotional ties between the child and à each person who is entitled to or is making a claim for custody or access; à other members of the child s family who live with the child; and à the people involved in the child s care and upbringing. The child s views and preferences (if they can be determined). The length of time the child has lived in a stable home environment. The ability and willingness of anyone presenting a plan to: à provide guidance and education; à provide the essential things the child needs; and à take care of any special needs the child may have. Any plans that are proposed for the child. The permanence and stability of the family the child will live with. The ability of each person applying for custody or access to act as a parent. The relationship between the child and each person who is asking for custody or access (through blood or adoption). Parents are not the only people who can apply for custody and access. The law says that any person can apply. Often extended family members such as grandparents, step parents, or aunts and uncles apply to the court. No matter who applies, the court will consider the best interests of the child.

14 g) Parenting Arrangements When parents live together, both parents have custody of the child. Having custody of a child allows a parent to make the major decisions for the child such as the child s education, religion and medical treatment as well as managing the child s property. Sometimes children can be in the custody of someone who is not their parent, like an aunt or grandparent. Sometimes the Indian Act may be used to protect the property interests of a status Indian child living on a reserve. The Minister can administer or provide for the administration of entitled property of an Indian s infant child or may appoint a guardian for this purpose. I. Custody When parents separate, in law there are four possible custody arrangements: Sole custody: One person has the responsibility and authority to make major decisions about a child s care and how they will be raised. Usually, the child lives primarily with the person with sole custody. Joint custody: Two people, usually the parents, share the responsibility for making decisions for a child. It does not necessarily mean that a child will spend equal time with both parents. Shared custody: Both parents share the responsibility for making decisions and caring for the child. Under the Child Support Guidelines, shared custody is where a child lives at least 40% of the time with each parent. Split custody: Parents have more than one child together and each parent has one or more children living primarily with him or her. A judge may make any of these arrangements into a court order. In some instances interim or temporary orders are made. These are called interim orders. If there is a change in circumstance you can apply to the court to have your order changed. II. Access Access refers to the child s right to spend time with, or access, the parent that they do not live with. Other adults, who the child does not live with, can also have access. For example, a grandparent can have access.

15 An agreement or court order can spell out exactly, the access days and times that the visiting parent can see the children. Agreements that spell out the exact access arrangements allow children to know what to expect and parents to know what is expected of them. This reduces the potential for conflict. When abuse or violence is involved, the court may order access to be supervised. With supervised access, a parent is not left alone with their children; instead they have another person present to make sure the children are safe at all times. When the child may not be safe in a parent s care, the court may order no access. If you go to court, you will give evidence about what your child s needs are and what parenting arrangements will work for your family. Gather all the information that may be relevant, such as the child s report cards, medical reports, letters from childcare providers and coaches, photographs of your children together with your extended family, etc. If there is a power imbalance or abuse in the relationship, you may need special assistance when you are deciding what parenting arrangements are in the child s best interests. Talk to a lawyer or a family justice counsellor. h) Child Support Access is not tied to child support. The law does not make a link between the child s right to see both parents and the paying parent s responsibility to make regular child support payments. When parents separate, each parent has the legal duty to financially support the child. Usually, the parent who does not live with the child pays support to the other parent to assist with some of the child s financial needs. The Child Support Guidelines are legal rules that determine the appropriate amount of child support. Under the Guidelines, child support payments are based on: the gross income of the person who does not have custody or the person with whom the children do not usually live; and the number of dependent children that need support.

16 The Child Support Guidelines are designed so that when you separate, children continue to be supported by both parents after separation. The guidelines also make it easier for parents to calculate an amount for child support, and they ensure that children are treated the same everywhere in Canada. The child support guidelines can also reduce conflict and tension between parents by having rules determine child support. I. How much child support must be paid? In some cases, the court can order an amount that is higher or lower than the Child Support Guidelines. The court can award more than the guideline amount where the child has special expenses. These might include, childcare expenses, tuition for private school, fees and equipment for hockey, or the cost of getting braces. In very limited circumstances, the court can also award less than the guideline amount where paying this amount would cause undue hardship. In these cases, the parent asking for the decrease must prove hardship and that the standard of living in his or her household is lower than the standard in the child s household. The Indian Act also makes some provision for the support of dependants. For example, the Minister may make an order that an Indian person s annuity or interest money be paid to the spouse or family. i) Spousal Support When a relationship breaks down, the law views the couple as an economic partnership for the purposes of determining whether spousal support should be paid. At the same time, the law expects adults to try to be self-suffcient and to look after their own needs to the best of their abilities. During a relationship, one person often spends more time looking after the home and the children. That person does not have a chance to earn a lot of money in the workforce, or to become more skilled and more highly paid in a trade or profession, or to pay into a pension plan over a long period of time. When a relationship ends, that person is at an economic disadvantage. To decide on the amount of support that should be paid by one spouse to the other, the law says that judges must look at how much the person asking for support needs to live, and how much the other person can pay. A person may claim support to help him or her become financially self-suffcient or to keep from ending up in serious financial diffculty.

17 In general, people who have been together for a short time will only be able to get support on a short-term basis. Support payments may give a person a chance to go back to school or train for a job. People who have been in a relationship for many years and out of the workforce or in low-paying jobs, may never be able to become financially self-suffcient. Their spouse may have to pay long-term support for them. Here are some of the things that are taken into account when determining spousal support: the age and health of the couple; available employment opportunities; the effect of being in the relationship had on employment opportunities; the contribution made to family care during the relationship; the contribution made to the other person s career; the family s standard of living before separation; the time it will take for the person to become self-suffcient; and the need to stay at home to take care of young children or adult children with a disability. Federal advisory spousal support guidelines are available to help you figure out the amount of support that should be paid. These guidelines apply to couples who have been married. They are not mandatory. The guidelines provide a range of suggested spousal support amounts based on the age of the spouse receiving support, the length of the marriage and the presence or absence of child support. These guidelines were designed to assist you in reaching agreement about a support amount based on the amounts awarded by judges in similar cases. With respect to common law couples, you can ask for support. Common law partners have a right to ask for support if they have lived together for more than three years or they lived together for less than three years but have had or adopted a child together. j) Support Enforcement All support orders made in Ontario are automatically filed with the Ministry of Community and Social Services Family Responsibility Offce (FRO). FRO processes child and spousal support payments to help ensure that the support gets paid on a regular basis and takes action to enforce support orders that are not being paid on time or in full.

18 If your support arrangements are set out in a domestic contract (marriage contract, separation agreement, cohabitation agreement or a paternity agreement), rather than a court order, you can still have your support payments processed through FRO. To do so, you must file your domestic contract with the court according to the procedure in the Family Law Act and the rules of court. Once the domestic contract is filed with the court, it can then be filed with FRO and FRO can collect your support payments for you. Where support is not being paid pursuant to a court order or a domestic contract, FRO can take a number of steps to enforce payment. FRO can: Request a default hearing, at which the payor must explain to a judge why the support is not being paid. If the judge is not satisfied with the explanation, the judge can order that support be paid. In extreme circumstances, the judge can send the payor to jail for failing to pay support; Garnishee the payor s wages and bring the payor s employer to court if the employer disobeys or ignores the notice of garnishment; Garnishee the payor s bank account; Seize the payor s RRSP; Register the support order as a charge on the payor s house, other real estate or personal property; File a writ against the payor s property; Request records containing information about the payor s employment and financial circumstances and address from any person or public body; Bring the payor s employer to court for disobeying or ignoring a support deduction order; Deduct money owed to the payor by the federal government (including income tax refunds and Employment Insurance benefits); Report the amount of support owed by the payor to a credit bureau; Intercept the payor s lottery winnings, if the prize is over $1,000 and the lottery was in Ontario; Suspend the payor s driver s licence; or Suspend the payor s federal licences or privileges, such as a pilot s licence or a Canadian passport. It is important to note that the Indian Act limits a provincial government s ability to pass laws that affect property or income held by Status Indians living on reserves. This means that FRO s ability to enforce support orders is affected by whether the support payor and the support recipient are Status or Non-Status Indians.

19 i. Status Indian The Indian Act protects property and income held on reserve unless the person entitled to support is also a Status Indian. If the support payor and the support recipient or children are Status Indians, the Indian Act does not limit the enforcement actions available to FRO. If the payor falls behind in support payments and does not enter into a repayment plan, he/she is subject to all enforcement actions available to FRO, see above. ii. Recipient or Children are not Status Indian If the support recipient or children are not Status Indians, FRO cannot take enforcement action against any of the payor s property or income held on reserve. However, FRO can take other enforcement actions, including: Issuing a support deduction notice for off-reserve income Placing a lien on, or issuing a writ of seizure and sale for, off-reserve property Suspending the payor s driver s licence Ordering the payor to attend court for a Default Hearing, which could result in up to 180 days of jail time 3. OpTIONs TO REsOLvE DIspUTEs The following explores some of the options available to you to resolve any disputes that you may have with your former partner: You can have an informal arrangement, which can be verbal or in writing. You can agree on things and write down your decisions in a separation agreement. A separation agreement must be signed by both of you in front of a witness for it to be legal. The witness must sign the agreement too. You can use a lawyer to help you negotiate a separation agreement. You can use a mediator or an arbitrator. You can use a family collaborative lawyer. You can go to court and ask the court to decide. Unless the circumstances of your separation make it unsafe to negotiate, because your spouse is violent or threatening, it is better if the two of you can agree on how to settle the issues between you through negotiation, mediation or collaborative family law. Court proceedings can be very expensive and take a long time. If you and your spouse cannot come to an agreement using one approach you may want to try another.

20 a) Negotiation If you and your partner can talk openly and agree about plans, including plans for your children, you can develop an agreement, including a Parenting Plan, together. Here are some guidelines for negotiation: 1. Before you get together, gather all your information and facts. 2. Speak clearly about what child-related issues you want to discuss. Stay focused on the topic. Don t bring up past faults and problems. 3. Listen carefully to what the other person has to say. If you don t understand, ask for more information. 4. Make sure both of you agree on the solution. Specify who will do what, when, and where. For example, if the agreement is about when the other parent will spend time with the children, you need to have a written plan about how and where the transfer will take place, and what time the children will go and return. Sometimes, it may be necessary to involve a third party such as a lawyer, a family justice counsellor, an aboriginal court worker, a band social worker, a family support worker or an Elder to help you reach an agreement. I. Separation Agreement Legally, it s not necessary to have a separation agreement. It is possible to have an informal arrangement with your former partner. However, this could be problematic if the other partner stops respecting your informal agreement. By writing your agreement down, everything is clear and there is less chance for confusion or problems later. A written agreement is a contract between you and your partner that says what you both have agreed to. A written agreement can include all your decisions about custody, and access, and about child support. It can also include your decisions about how you are going to divide the things you own, and whether one partner is going to contribute to the financial support of the other. Make sure both you and your partner sign the agreement. You should also ask your lawyer to review it before signing because once you ve signed it is a legally binding document. Your partner and you should see different lawyers - so don t go to the same lawyer.

21 If it is a feasible option for you, you may wish to file the agreement with the court. If there are problems later, you can show a judge what you and your former partner agreed to. Judges take these agreements very seriously, especially if you both had legal advice. b) Collaborative Family Law Another option is Collaborative Family Law. In collaborative family law, you and your former partner negotiate with the assistance of your lawyer. This is different from traditional negotiations where your lawyers negotiate on your behalf. Court is not an option for lawyers who participate in collaborative family law negotiations. If negotiations break down, and you or your former partner decide to go to court, neither of the lawyers nor their law firms can represent you or your former partner. c) Mediation This option involves a mediator who helps you and your former partner to reach an agreement. Mediation is not appropriate when: One person does not want to participate. One person does not feel safe with the other person. The relationship is or was abusive. Your child is at risk of being seriously harmed. A mediator is an impartial person who can help you and your former partner develop a plan to deal with the legal issues around separating. A family mediator sits with you and your partner and helps you discuss the issues and work through your problems to reach an agreement. You and your former partner make all the decisions. The sessions can be confidential, or you can choose open mediation, and the mediator can be asked to report the outcome to the court. Before mediation begins, the parties will be required to go through a screening process. The mediator will speak with each of the parties separately in order to make sure mediation is appropriate in the circumstances and whether additional safeguards are necessary.

22 Family mediation services are available in connection with family courts across Ontario. You may contact your local court offce for more information. You can also obtain the names of private mediators where you live through the Ontario Association for Family Mediation or the ADR Institute of Ontario. Lawyers also often know the names of local mediators. One important thing to remember in mediation is to get independent legal advice about the issues being mediated. Mediation is not the same as legal advice and ideally, you will get legal advice both before the mediation begins, and as the issues are being resolved through mediation. d. Arbitration Like mediation, arbitration is a voluntary process but is more formal and is similar to the court process. Both you and your former partner must agree to participate. The parties are responsible for the fees for the arbitration. The end result of a successful arbitration is an arbitral award dealing with the issues you have asked the arbitrator to decide on. Arbitration is faster than the court process and allows the participants to choose the arbitrator to suit their case. Before arbitration may take place, both you and your former partner must be screened separately for domestic violence and power imbalances. A report from the person who does the screening must be submitted to the arbitrator before the arbitration can begin. Independent legal advice is mandatory for family arbitrations you cannot opt out of this requirement. Any award from an arbitration that was done without both sides receiving independent legal advice will not be enforceable in court. A family arbitration agreement can be binding and enforceable in court if certain criteria are met. e) Using the Court to Resolve Disputes If you and your partner cannot agree or if there is abuse in the relationship, you may need to go to court and ask a judge to make a court order to deal with parenting decisions, child support, assets, debts, and property issues. You will have the least amount of control over the outcome with this option. Going to court can be very expensive. For most families, paying lawyers to fight a long court case is extremely diffcult.

23 If you go to court, be prepared to have a judge tell you what they think would happen if your case were to go to trial. The court can also order one party to pay the other party s legal costs if he or she does things to deliberately drag things out or unnecessarily increase costs for the other side. It is important to remember that even if a court process has been started, you can still try other dispute resolution options, like mediation, at any time during the process. If you chose to go to court, you should not expect to have an immediate court appearance. Immediate decisions are only made in emergency situations. In most situations, a final decision will not be made on the same day that your case is heard by a judge and you should be prepared to attend court for several appearances. 4. going TO COURT In Ontario, three courts deal with family law cases: the Family Court of the Superior Court of Justice; the Superior Court of Justice; and the Ontario Court of Justice. Ontario Court of Justice The Ontario Court of Justice hears family law disputes, including custody, access, child and spousal support, adoption and child protection applications. It does not decide divorce or division of property matters. Superior Court of Justice The Superior Court of Justice can decide family law disputes involving divorce, division of property, child and spousal support, and custody and access. The court does not hear adoption or child protection matters, except on appeal. Family Court branch of the Superior Court of Justice There are 17 Family Court of the Superior Court of Justice locations in Ontario. The Family Court hears all family law matters, including divorce, division of property, child and spousal support, custody and access, adoption, and child protection applications. In all other sites across the province, family law matters are divided between the Ontario Court of Justice and the Superior Court of Justice.

24 a) Family Rules & Forms The Family Law Rules tell you what steps to take and when, and which documents you need to give the other party and file with the court. The Family Law Rules will give you information about: Timelines Where a case should be started and where it will be heard How to serve documents (give them to the other party) Who are the parties How to start a case How to answer a case Financial statements Motions Conferences Evidence Costs Enforcement of orders The Ministry of the Attorney General has prepared Guides to Procedure to help you understand the rules as they apply in all three courts. The Guides cover topics such as the forms to be completed, procedures when attending court, etc. You can obtain and fill-in most of the court forms you will need online at the Ontario court forms website. In addition, the Ontario Court Forms Assistant, an on-line tool developed by the Ministry of the Attorney General, will help guide you through a number of the most commonly used family forms. b) Mandatory Information Program The first step in most family court cases is for both parties to attend a Mandatory Information Program (MIP) session. At the MIP, you will learn about how adults and children adjust to separation, the different ways you can try to resolve disputes and the legal issues that arise upon separation and divorce. c) Case Conferences The required steps in a family case provide you and the other party with opportunities to settle your family law disputes. These steps are called case conferences, settlement conferences and trial management conferences.

25 Regardless of the court where your court case was started, if you do not settle your disputes, you must schedule a case conference. To have an effective case conference, it is very important that both you and your former partner have all of your court forms completed and served on the other party together with any other required documents, such as financial statements, before the case conference date. At a settlement conference, the judge will focus on how the issues in dispute may be resolved and which issues may be settled without any further court attendances. Trial management conferences will only occur where a trial is required. At a trial management conference, you and the other party must provide the judge with information about how you intend to present your case at trial, including the witnesses that you intend to bring and how long you think it will take for each of you to put your evidence before the judge. d) Motions If you have a family law matter that needs to have a decision made quickly, you can ask the court to make a temporary order by bringing a motion. The temporary order will stay in effect until the court has time to hear your case in full. The types of court orders that may be made on motion include; Custody Access Child Support Spousal Support Unless your matter is urgent, you may not bring a motion before a case conference. If you believe that your issue is urgent, you should talk to your lawyer or duty counsel right away. e) Trials In rare cases, the only way for the parties to resolve their disputes is to go to trial. A trial is the last step in a court proceeding. At a trial, a judge will make a final decision about all of the issues you and the other party have raised. It is the court process that leads to the making of a court order. The court order is a legal document that sets out the decision of a judge and is legally binding.

26 f) Motions to Change If you want to change a final court order, or an agreement relating to support, you can bring a motion without having to start a new application. The Ministry of the Attorney General has prepared Guides on how to bring and respond to a Motion to Change. 5. FINDINg MORE INFORMATION ABOUT ABORIgINAL FAMILY LAW ISSUES The Family Law Education for Women website provides various information booklets online produced by the Ontario Native Women s Association. The family law topics covered include: child protection, support, custody/access, and marriage and divorce. These booklets can be accessed at: In some locations assistance is also available through the Aboriginal Family Courtworker Programme. Information about this program is available at: Members of the Nishnawbe Aski Nation may also wish to contact Nishnawbe-Aski Legal Services at or visit their website at CHILD SUPPORT guidelines Information about the Child Support Guidelines is available on the Ministry s website at: The Federal Department of Justice website contains a tool to help calculate the amount of child support that is owed in accordance with the Child Support Guidelines at: CHILDREN For information and/or help for children who may have been abused, your local children s aid society may be able to help you. Look in the white pages of your telephone directory under Children s Aid Society or consult the emergency numbers at the front of the telephone directory. The Ontario Association of Children s Aid Societies website at also provides contact information for all local children s aid societies in Ontario.

27 Offce of the Children s Lawyer: call or visit the Ministry of the Attorney General website at: If a child has been taken outside of Canada without your permission: Ministry of the Attorney General, Central Authority for Ontario for The Hague Convention on the Civil Aspects of International Child Abduction. Call For more information on child abduction, please visit: International Child Abductions: A Manual for Parents. To view the Manual visit the website at: Our missing children program c/o National Missing Children Services: In Ontario call toll-free or Fax: For more information, including links to other helpful sites, visit the web-site at: FAMILY LAW For information about Legal Aid Ontario, call or visit their website at For information about the Law Society Referral Service, call or visit their website at For the location of the family court in your community, look in the blue pages of your telephone directory under Courts in the Index-Government Listings or visit the Ministry of the Attorney General Website at: For information on the steps in family cases and instructions on how to fill out the forms, the Ministry of the Attorney General website provides various guides to procedures at: Guides to Procedures: Ontario Court Forms Assistant visit: Self-Help guides for Motions to Change and When you are served with a Motion to Change visit:

28 Family Law Information Centres: For details about services provided, contact your local family court or visit the Ministry of the Attorney General website at: For pamphlets on family law and other legal issues contact: Community Legal Education Ontario 119 Spadina Avenue, Suite 600 Toronto ON M5V 2L1 Tel.: Fax: Website: ( For information on divorce law contact: Department of Justice Canada 284 Wellington Street Ottawa ON K1A 0H8 Tel.: Website: Spousal Support For information on how spousal support payments are determined, the Department of Justice website has published the Spousal Support Advisory guidelines, which is available at: You can also find information on the Ministry of the Attorney General website at: Family Responsibility Offce For information on the Family Responsibility Offce, including options available for the collection of support owing to partners and children visit: Pensions For information on how to apply for the valuation of a spouse s pension plan in Ontario, visit the Financial Services Commission of Ontario website: Mediation & Arbitration For information on Mediation and Arbitration visit: and ADR Institute of Ontario Website:

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30 ISBN ISBN (Print) (PDF) Ce livret est également disponible en français. Published by the Ministry of the Attorney General. This publication was made possible with funding from the Department of Justice Canada s Supporting Families Fund. March 2013

31 INDEX 1. Introduction 2. The Legal Issues a) Divorce b) Division of Property c) Matrimonial Home I. On Reserve Lands II. Off Reserve Lands d) Decisions About Children e) Parenting Plan f) Judge Decides Child s Best Interest g) Parenting Arrangements I. Custody II. Access h) Child Support I. How Much Child Support Must be Paid i) Spousal Support j) Support Enforcement I. Status Indian II. Recipient or Child is not Status Indian 3. Options to Resolve Disputes a) Negotiation I. Separation Agreement b) Collaborative Family Law c) Mediation d) Arbitration e) Using the Court to Resolve Disputes 4. Courts in Ontario a) Family Rules and Forms b) Mandatory Information Program c) Case Conferences d) Motions e) Trials f) Motions to Change 5. Finding out More Information

32 1. INTRODUCTION When we separate from our partners, it is a very diffcult time; even more so when children are involved. This booklet will provide general information to everyone who is experiencing a relationship breakdown. It is not meant to provide specific advice on your family situation. The information contained in this booklet presumes that those of you that are parents will work together to meet the needs of your children. However in situations where domestic violence, abuse, mental health or addictions are a factor, working with your former partner to resolve your family disputes may not be realistic or safe. Making sure you and your child are safe is the number one priority. If you feel your safety is at risk, or the safety of your children is at risk, you should develop a safety plan. As part of your safety planning, write down the telephone number of your relevant local agencies should an issue of your safety or the safety of your children arise during the separation process. Indian Friendship Centre A Mediator/Family Justice Counsellor An Aboriginal Court Worker Your Band Social Worker Your Band Development Worker Your Band Community Base Worker Your Family Support Worker Family Violence Centre Local Transition House/Women s Shelter Police/RCMP Ministry of Community and Social Services Assaulted Women s Help Line Residential School Healing Services Lawyer Referral Services or Legal Aid Ontario or Family Court Worker (Speak with the Information Referral Co-ordinator at your local court offce)

33 a) If your Spouse is Violent If your spouse is violent towards you or your children, you can ask a judge for a court order to help protect you. Ask a lawyer, an aboriginal court worker, police offcer or Information Referral Coordinator for information on how to get a court order, such as a restraining order or a no-contact order. A restraining order means your partner has to stay away from you and your children. This is an order made by a family judge in family court. If the person who has a restraining order against them disobeys it, the police can arrest them. If your partner has been arrested for being violent towards you, a judge can make a No-Contact Order that directs your partner not to contact you or your children. 2. THE LEGAL ISSUES It is important to understand the legal issues when separating from your former partner. This will help you in deciding what to do next. a) Divorce If you are married, the only way to legally end your marriage is to get a divorce. In order to get a divorce, you must start a court case and demonstrate to the court that your marriage has broken down. There are three ways to demonstrate this: 1. You and your spouse have been living separate and apart for at least one year before you apply for a divorce. 2. Your spouse has committed adultery. 3. Your spouse has been so physically or mentally cruel to you that you can no longer live together. If you and your former spouse agree about what each of you want, you may not need to appear before a judge. In many cases parties can simply file an affdavit that is reviewed by a judge in his or her offce. You cannot marry again until your divorce is final.

34 b) Division of Property Aboriginals living on a reserve are subject to the general application of provincial laws provided these laws do not conflict with the Indian Act. The laws for the division of property would apply regardless of whether the property was located on the reserve lands. According to Ontario s Family Law Act, marriage is an equal partnership. When a marriage ends, the partnership is over and property has to be divided. The equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse since the date of marriage must be shared. This is accomplished through an equalization payment, or an equalization of net family property. There are some exceptions to these rules. The law allows you to keep the value of some property that you have at the end of your marriage for yourself. This property is called excluded property. It includes: gifts you received during your marriage from someone other than your spouse property that you inherited during your marriage money that you received from an insurance company because someone died money that you got or that you have a right to get as a result of a personal injury, like a car accident The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it. Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage. The legal rules that you have to follow to calculate the value of your property and divide it between you and your spouse can be complicated. It is a good idea to consult a lawyer about how the rules apply in your case.