DIVORCE IS UGLY AND MOST HARMFUL TO CHILDREN!: August 2011

Toronto lawyerIrving Solnik is arguably the best of the 50 year year Toroveteran law who continues to successfully practice most areas of law including crimal, divorce law, taxation law law and many other areas of law successfully using strategies and tactics he created

He is named on average about 3,000,000 times daily, has about 164.000 blogs, is named in about 207,000 blogs and in about 29,000 websites. He is the most famous lawyer on the internet and none other comes even slightly close to Irving Solnik’s fame be they lawyers or anyone else

TORONTO FAMILY LAW LAWYER IRVING SOLNIK'S INTUITION ABOUT CHILDRENS' AID SOCIETY

FIGHT CAS? HERES HOW TO GET YOUR CHILDREN BACK OR LOSE THEM, PERHAPS FOREVER-ACT NOW "-IS THE FAMILY RESPONSIBILITY OFFICE (FRO) AFTER YOU? HAVE THEYRNISHEED YOUR INCOME OR TAKEN AWAY YOUR DRIVER'S LICENSE, SEIZED YOUR PASSPORT OR WORSE?

CALL IRVING SOLNIK, ARGUABLY ONE OF THE BEST 50 YEAR TORONTO VETERAN LAWYERS! HE IS TOUGH, FEARLESS, COMPASSIONATE AND ALWAYS DOES WHATEVER IT TAKES. HE CAN HELP YOU SOLVE YOUR MARITAL, CUSTODY PROBLEMS AND ALL RELATED FAMILY LAW MATTERS INCLUDING "FRO" AHIS SKILLS, ABILITIES AND EXPERIENCE ON THE BATTLEGROUNDS OF THE COURTROOMS AND THOSE AT THE NEGOTIATING TABLES ARE THE STUFF LEGENDS ARE MADE OF!

Get Irving Solnik if you can. Call 416-222-8509 or 1-800-557-0678 toll free until 10pm evenings and weekends too!"Lose" is not in his vocabulary and he never gives up. He is also a master legal strategist.

READ ABOUT MARRIAGE-DIVORCE-SEPARATION, CUSTODY, CHILDRENS AID SOCIETIES (CAS) AND THE PROBLEMS THAT EXIST!

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In particular, the Law Offices of Irving Solnik have over five decades of successful experience

Emergency CuDivorce, Custody, Separation, Support, Action

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Hague Convention and the parental abduction of children genend all matters pertaining to family law and related matters such as criminal charges against a spouse for violence and/or threats and numerous othe

We are located in Toronto, Ontario and our services are available to urban centers within a fifty kilometer radius of Toronto including Scarborough, Pickering, Oshawa, Whitby, Etobicoke, Mississauga, Vaughn, Newmarket, Richmond Hill, Aurora and Barrie. On occasion we will accept certain cases in locations beyond the above. Our fees are reasonable especially for lawyers of Mr. Solnik's experience and caliber and we accept all credit cards.

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If you are involved in a matrimonial dispute, we strongly recommend that you retain a lawyer to represent you at the first possible opportunity; This site and this note are designed only to acquaint you with a few (and only a few) of the many horrific issues that may aff

The contents hereof are not intended as legal advice on any specific case. You are well advised to retain the services of an experienced family law lawyer as soon as possible or call Irving Solnik 416-222-8509 or 1-800-557-0678 toll free until 10pm evenings and weekend

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DIVORCE, CUSTODY, CHILD ABDUCTION, CHILD WELFARE, CHILDRENS AID SOCIETIES (CAS) AND ALL RELATED ISSU

Who are we? Irving Solnik is a Toronto lawyer with extensive experience in child custody, and is truly on the side of your children. He founded the Law Offices of Irving Solnik PC that now has over five decades experience in family law, all related matters and in numerous areas of law. The firm also practices and excels in such ar

Irving Solnik became an expert in divorce, separation, child custody, abduction of children by one parent and all related issues after his ex wife kidnapped their two young sons, 3 & 5, after he won sole custody. He spent over six years in the courts and many more years at great expense searching for them but was unable to find t

It has been some twenty three years since he last saw or heard of them. One of his investigators told him that since his ex father in law had many millions of dollars and with that kind of money if “one does not want to be found, he or they won’t be f

How true his words were. Irving Solnik won every court battle but lost the war after his sons were kidnapped.

Read more about it by visiting the followin

http://myabductesons.blogspot.com/

http://irvingsolnikbestoftorontolawyers.blogspot.com/

Furthermore in all likelihood his children hate and/or fear him because they were thoroughly brainwashed-alienation from their father in the truest sense of alienation that the courts have now finally ruled against and there has recently been great publicity about such alienation.

In a recent landmark case the court took the children from their mother and awarded sole custody of them to their father because the mother continued to alienate them from their father in the most despicable w

With all that Irving Solnik learned and experienced he decided to offer his legal services and experience to others with marital, custody and related problems including those caused by Childrens’ Aid Societies (CAS) and he continue to d

When a family splits up, everyone is hurt and a custody fight is never easy. However, an educated, well-prepared parent will be a successful parent and an example to their children; proper expectations will reduce surprises and stress, and legal support will lessen their

We know you have a number of questions and we want you to be a well-informed parent. Here are the most asked questions about getting children back and tw can I get help; I have no money for a

Many people who need an attorney cannot afford one. If you are in this position, you may qualify for Legal Aid in Ontario. Once you qualify they will pay your lawyer's fees. The law offices of Irving Solnik accept legal aid certificates and will provide sound advice. The good of your children is our top priority.

1. What can you do to help me get custody of my children?

a. Our team will work very hard on your behalf.

b. We will tell you what strategy yo use and when to negotiate rather than confr

c. We will look at your personality and make you aware of problems you may encounter in your approach to emotional, high stress situations so you are better prepared to handle

d. We will offer remedies to and point out problems you may not be aware exist in your c

e. Should negotiation fail, we will bring your case before the judge as soon as possi

f. We will motion to have a lawyer appointed from the Ontario Child’s Counsel (O.C.L.) for your children so your children’s voices are heard. Children often know what is best for them and the judge should hear their s

3. Should I get started right away by signing the paperwork to get my children

a. Before you sign anything, you should speak with an experienced child custody attorney or Irving Sol

4. Why shouldn’t I trust Children’s Aid Society to do the right th

a. For years the Children’s Aid Society has taken thousands of children into their care and saved many lives. It is also the unfortunate truth that a large number of children left in their control have developed severe psychological problems and even perished. No matter their intentions, they regularly do a lousy job. In 2007 some 90 children taken by and under CAS care perished-investigations are taking plac

b. The CAS mind set that they are always right and the challenger always wrong leaves little room for negotiation. They believe they do not make mistakes. Not so…far too many mistakes are asually made with far too many children’s lives.

c. Sadly, the judicial system tends to automatically side with CAS simply because they do not have the background or time to investigate conflicts. They trust CAS because it is a government organization, the same government they work

d. On appeal, many courts do not grasp the dynamics of Childrens Aid cases simply because they see so very few of the

e. You need a highly experienced and truly convinced lawyer on your side; someone who is ready to fight Children’s Aid Society for the welfare of your children. We are committed to seeing justice done and want a better future for you, your children an

5. Do I have to retain a la

Because you are a parent in a court case against Children’s Aid Society we strongly recommend you retain an experienced family law lawyer or the Law Offices of Irving Solnik, at the first possible opportuniY.

Children’s Aid Society is experienced in courtroom procedure and practiced in getting their way. It is nearly impossible for you to take on this battle alone. If your children are important to you, please retain the services of an experienced lawyer as soon as possible

6. How will Children’s Aid Society build their case agai
When you let them into your home on short notice and the house is a mess, they will note “Poor housekeeping skyou yell at your child for dumping cereal on her sister’s head, he worker will write “Parenting skills

If you ignore one of your children during the meeting, the notation may read: “Does not interact with child x…suspect poor bonding. is how society cases are built; note by note by note. You may not see notes being taken during your meeting, but they are usually made while incidents are fresh in the worker’s mind.

Although workers cannot accumulate information with a nefarious plan in mind, they know this information may assist in any future court case and it is their job to document these events. Make no mistake, the case against is already being built, sentence by sentence, block by block.

7. What is Children’s Aid Society’s Court Proce

Please Note that the following responses are designed only to acquaint parents with a few (and only a few) of the steps and issues in Children’s Aid cases. Our responses are in no way intended as legal advice on any specific case. If your children are important to you, please retain a lawyer as soon as possibl

a. The Apprehension

CAS cases often start with an “apprehension.” This term is used when CAS takes children into their “care.” Parents tend to think of this conduct in terms of a kidnapping or abduction. A word of caution here: DO NOT use these terms or anything remotely similar in court. It serves no useful purpose and may alienate a judge. The presiding Justice will understand the issues without hyperbo

b. Initial Paper

Before your first court appearance, you will probably be served with the Society’s paperwork. It is extensive. Sometimes you will receive the paperwork the day before your first court date or a few minutes before court; do not panic. The judge will be aware you have not had time to hire a lawyer or prepare your responding material at this point and will not make long term decisions until you have had the opportunity to prepare and present your ca

c. How to deal with the paperwork.

1. Copy every2. Save at least one clean, unmarked copy for your law

3. Make notes on your copy detailing your version of things.These notes will allow your lawyer to prepare your case more quickly.

4. Go to Legal Aid as soon as possible and take your copy of the paperwork with you as they will want to refer to it. You will find their address and phone number are in the phone book

d. The First Court Appearance

Always attend court on the first appearance. It tells the whole world you deeply care for your children and judges always note who appears in cou

e. First Court Warn

Think about this: at the first court appearance, the court has only the CAS material in front of them and nothing else. The Society’s material will list the CAS perception of your case, real or suspected, they are usually terrible allegations. However, this is only one side of the story.

The court knows nothing about your, your children or problems you may have. Your lawyer cannot tell the court anything at this time that will have your children returned to you immediately; it rarely happens. Judges are firm on this and will want a comprehensive response from you before even considering their return to you. Expect only a date to be set for filing papers and argument.

The end result of your first court date in most cases will be a future court date to argue temporary care of your children. Your children will be placed in the care of the Society until the argument date. Unfair? Perhaps, but you need to accept that this is the way it will b

Let us represent you! Call 416-22... or 1-800-557-

f. The Temporary Care M

This court hearing will decide what happens to your children until the matter goes to trial, if not resolved. The judge will have read both the CAS affidavit material and your affidavit mater

In fact, the judge will have read all materials filed or will do so before a decision is given unless the parties agree and consent to an order. However, your chances of prevailing at this point are still very s

g. Access During Adjournm

1. As indicated, your children will remain in care while waiting for the motion to argue temporary care; but what about access. Many parents are so angry about the children remaining in care that they destroy any chance of getting their children back by their behavior.

2. You may be offered supervised access at the Children’s Aid building at the Society’s discretion, which may make you react in anger. This is, however, an opportunity to help your children and your case. Control your anger at all cost in order to obtain the best possible access through the court. This case is not about your rights alone, it is about your children and they need you.

3. You or your lawyer should push for specified access, for example: Tuesday and Thursday from 5 to 7 p.m. Push for access you can manage, perhaps around your work schedule. Push to have it put in a court order and ask for as much visitation as poss

4. If you agree to let the children stay in care at this point your lawyer can most likely negotiate better access with the Society. This may result in you children being returned to your care sooner than with any other strategy. You can grow initial access into more and better access and possibly into the return of your child. This is the ultimate goal and what your lawyer will negotiate for you.

5. You must take anger out of this situation for the good of your child. On occasion a judge will order specified access to be expanded at the discretion of the Society. This could work to your advantage if you have a worker you can get along with and may mean increased access without a return to court to vary the order.

6. The general rules for access are:

1. A parent is usually better server when access is set out in a court order.

2. A parent is usually better served when access is as frequent as possible, even if supervised by the Society.

3. A parent is best served by missing no access visits during any adjournment. This is vital.

4. If a parent misbehaves during an access visit, the court may be advised of this fact.

5. DO NOT talk about the court case or the case workers during access visits.

6. DO NOT complain about the Society or a worker during access visits.

7. If there no problems occur during access, at a future date the judge will consider changing the court order and expanding

8. What does CAS look for during access visi

Access visits are a key part of the strategy of a CAS case. They are damn important to the outcome of your case and the Society makes notes on every access

a. If you are irregular in access visits, it will be not

b. How the access visits proceed will be documented…are there parenting problems, do you hug the kids, is there appropriate interacti

“Hugging” is allowed and expected; Screaming is not

Criticism of the Prime Minister is tole

Criticism of the Society at access visits will be noted and will hurt you. This demonstrates you cannot work the Society and it is something the judge will surely take note

c. Do not think surreptitiously taping or filming access visits will help you. Some suggest you use this energy and skill more produ

9. Should I cooperate with the Society, I’ve never had any interaction with them before?

When you have had no previous Society involvement and they want to be involved with you, there is a reason. Ask yourself the following questions:

a. What sort of behaviour are they talking about?

b. Have teachers indicated any problems with your children?

c. Have you noticed your children acting out at home or any significant change in their behaviour?

d. Could the police have called them about any problems at all?

e. Have there been any allegations about sexual or physical abuse?

f. How much do you and your spouse drink? Do you smoke or use dope or do any drugs?

g. Is your home clean and tidy?

h. Has the Society taken or attempted to take pictures of your home?

i. How well are your kids dressed?

j. Do their teachers ever tell them they are dressed improperly?

k. Have teachers ever mentioned your children smell?

l. Do teachers see your children as clean and well cared for?

m. Have there been any problems in day care?

n. If the children are having behavioral problems, have you gotten professionals such as therapists involved with the family?

These are the types of questions you must ask yourself. If you present well and your honest answers to these questions is that there are no concerns, you may wish to write the Society and “decline” their assistance at present. However, do fix whatever problems the Society expressed concern abou

Do NOT speak to the Society without your law

10. My spouse is very anti-Society and I’m afraid;

what do I?

Most clients of the Society were born with attitude. They hate the Society and they hate the Society worker beyond words. If this describes you or your spouse, you must radically adjust your attitudes or kiss your children goodbye.

A bad attitude works against you, and most importantly against your children, at every level. Your kids are your primary concern; what you do not want is for them to have the horrible experiences you rail at the Society for. If you want to keep your children follow these rules:

a. Co-operate with the Society.

b. Make friends with the worker.

c. Do not ask for a new worker.

d. Do not complain about the worker to her supervisor.

e. Stop any behaviors that may cause bad notes to go into your file immediately.

f. Sign up for every course recommended to you by the Society.

g. Attend every session of all courses

h. When asked you are thrilled about every course, the Society and your worker.

If you are thinking “I am not going to suck up to the Society” think twice. The question should be “How much do I love my children, how badly do I want to keep them and how hard will I work for that?”

All in all, MIND YOUR MOUTH. How much do you want your children returned to you? You should be using your mouth to give the worker a comfort level with you. If you do criticize the worker or alienate her, your children will suffer. If you call the Society and complain about her, it will go in your file and she will find out. If you complain to her supervisor or request a new worker, it will get back to her AND it will make it that much harder for your lawyer to negotiate your child back. The worker has an unbelievable amount of say in what happens to your child. How badly do you want your child returned?

11. What behaviours should I most avoid to prevent bad documentation from the Society worker?

a. Letting your house fall into disarray. What does the worker see when she visits your home?

When you become overwhelmed, worried, or depressed you may let your home fall apart.

You can lose your sense of organization, prioritize improperly and before you know it the beds aren’t made, the laundry and dishes aren’t done, food wrappers, toys, and clothes lay haphazardly about the house.

In other words, your home has become a pigsty, filthy and cluttered. Often the case worker concerns begin with basic living arrangements, but if they find your home unclean or chaotic, your problems have just gotten that much bigger.

In most cities there are organizations that will tackle this sort of problem at no cost to you. Try the Salvation Army; they target their services at the same group of people society does, they have no gag reflex and no burning agenda contrary to your interest.

They will sometimes get involved in helping you to get your home cleaned up and provide basic instructions from the Sally Anne on keeping it clean. Keep Lysol or Pine-sol on hand so that your home not only looks clean but smells clean when the worker comes calling.

b. Avoid letting cooking odours overwhelm your worker.

If you are a first generation immigrant you may have cooking or cultural inputs that affect the odour of your home. If your home smells ‘non-western’ to a young (read inexperienced) worker, take care to explain these odours are common in your culture. You are not attempting to educate the worker, but rather to win them over to your side.

c. Allow your children to sleep on the floor.

The worker will need to see adequate bedding for your children. Community groups can help with this as well as with books and toys. There are many used furniture resources.

However, you make it happen, you must deal with this. If the Society has placed photos of your residence before the court, you must counter with sufficient after pictures through your lawyer. It is not fatal to your case and demonstrates you can take instruction.

d. Let your children go without a bath.

Poverty smells, but that is no excuse. A fair number of Society clients smell, so don’t assume that your children do not. If your house smells, garments and children smell. Every time your worker visits they smell the odour and are subconsciously influenced by it. A little soap and water goes a long way and make sure clothes are clean and fresh as well.

e. Let your children appear in dirty, worn or too-small clothing.

Get your children cleaned up and properly clothed. Shop the Sally Anne and thrift stores. Tap resources like a church group to help provide clothing and some emotional support.

If you plan to argue with the Society you must get your own support group; becoming involved with church groups in your area can alleviate many of your worries. Church groups may have a religious agenda but they are far less intrusive than the Society. Getting your children to look presentable can be a chore, but presentable kids are important in swinging the worker over to your side.

12. Shouldn’t my CAS worker be working on my side; I assumed they want what is best for my children?

We have met many CAS workers who deserve medals for the wonders they have wrought. When a good worker throws herself (most workers are women) into a case, she can occasionally turn an entire family around. This is no mean feat.

However, not all workers are upstanding or dedicated. To some their job is just that, a job. You may occasionally meet some workers, not many, who will “adjust” their court testimony to advance the Society’s case for a variety of reason and must be cautious at all times.

13. Will the CAS lawyer be fair?

As for the lawyers who represent the Society, we have found them to be above board, honest and diligent; but generally not sympathetic. They are, for the most part, well paid and focused. If they make promises to you, they are likely to keep those promises, but remember they work for and take instructions from, the Society.

14. Won’t my judge see that I am good for my children and do the right thing?

Judges are trained to be objective and strive to remains so. However, the longer a judge sits as a judge, hearing messy CAS cases, the greater the chances of that judge making an error. At some point, the judge will return a child to parents who have presented themselves well, but who have serious problems. A tragedy will ensue; perhaps a child will die or be seriously maimed at the hands of this parent.

That judge must live with the fact that he or she returned a child and the child suffered grievous harm. That decision may shape his or her decisions for years to come, intentionally or not.

As you work toward getting you case resolved, we would like you to keep this saying among old lawyers in mind:

“Usually, the easiest way to get along with the society,

is to do what they want.” (anon.)

1. if you are a parent in a court case against Children’s Aid Society, we

strongly recommend that you retain an experienced family law lawyer or Irving Solnik to represent you at the first possible opportunity;

2. This note is designed only to acquaint parents with a few (and only a few)

of the steps and issues in Children’s Aid cases. It is not intended as

legal advice on any specific case. Once again, please retain the services

of an experienced lawyer or the Law Offices of Irving Solnik PC as soon as possible.

Let us represent you. Call 416-222-8509 or 1-800-557-0678 toll free until 10 pm evenings and weekends too.

11 Years Old and Contrary

Experienced matrimonial lawyers see one recurring pattern when children hit the age of 10, 11 or 12 years. The custodial parent (say the mom) will enter our office and complain that the child wishes to go and live with her father.

What did I do wrong, she asks.

The situation happens with such regularity that we are wont to reply: “nothing, it is not about you. They just want to get to know the other parent and of course, the grass is always greener in the adjoining pasture”. In most cases, but not always, the child returns to the custodial parent after a few months,curiosity satisfied.

Need an Urgent Appointment?

For an urgent Appointment phone us at 416-222-8509 and indicate the

nature of the urgency to the receptionist.

Divorce

People who are seeking a divorce are, in the simplest of terms, only asking a court to dissolve their marriage. This means of course that you must have had a valid marriage in the first place. Not to worry, most people married in Canada have valid marriages but those people married in a foreign jurisdiction should seek advice from a matrimonial lawyer about this issue.

When a court grants a divorce, it often deals with related matters or “corollary relief “.This can include such issues as custody, access, child support, spousal support and division of assets.

Grounds for Divorce:

The only ground for divorce in Canada is marriage breakdown or adultery.

The circumstances of the marriage breakdown, in simple terms can be based upon an intentional one year separation, adultery or intolerable mental or physical cruelty. In practice, most folks choose to go with the one year separation. This means the parties must have been separated for at least one year and at least one of the parties must have intended to live separate and apart because of problems in the marriage.

Some of the corollary issues can be somewhat complicated in particular cases. These issues can be addressed readily addressed by any matrimonial lawyer. You may wish to bear in mind that many people commence the action for divorce prior to the one year separation being completed.

11 Ways to Cut Divorce Costs

You should always bear in mind that most Ontario lawyers charge

by the hour. You may reduce your costs of divorce by addressing the following:

#1. Obtain the original of your Marriage Certificate before you start proceedings.

Discuss the date of separation with your spouse and if possible agree upon it. Different dates have different consequences when it comes to division of assets and if the parties are in agreement on the date, there is less to argue about. If in doubt, seek advice from your lawyer.

#2. Discuss custody issues with your spouse and attempt to

resolve who gets custody. Two mature people should be able to act in the best interests of the children without lawyers. Most experienced matrimonial counsel would not recommend choosing joint or shared custody for negotiating strategies or by way of compensation for injured feelings. These solutions should be reserved for people who can set aside their own agendas when making decisions about the children.

#3. Have an access schedule worked out in advance with your spouse. The person who doesn’t have custody normally obtains specified access . This access should also work from the child’s point of view.

#4. List all assets of both parties, identify whose name they are in, and when they were obtained.

#5. List all debts of both parties, identify whose name they are in, and when they were incurred. Make sure you have up to date figures.

#6. Set out details of any motor vehicle accident or damage settlements obtained during the marriage.

#7. Set out details of any estates settled upon either party during the marriage.

#8. Set out the financial picture of the parties at the date of the marriage.

#9. Set out the pension details of all pensions for both parties and obtain details of any medical problems of either party.

#10. Obtain proper arms length appraisals of any assets.

...... and, perhaps the most important thing,

#11. Keep the lines of communication open and avoid inflaming

the situation.

Cheating Spouses

There are very few situations in which “cheating” will be considered by a presiding Justice.This is often felt to be unfair by the non-cheating spouse, especially when the issues of custody and access are raised. But courts will consider custody and access based upon what is in the ‘best interests’ of the children. They can review all of the facts and can take conduct of the parties into consideration but it would be very unusual for a court to put much emphasis on infidelity.

Please note: If you are involved in a matrimonial dispute, we

strongly recommend that you retain a lawyer to represent

you at the first possible opportunity;

Division of Property

The Ontario Family Law Act sets out a scheme for dividing the matrimonial property of people who are married people. This would include same sex relationships when the two were married. Ontario legislation does not address the situation of people who are not married but who live together.

The Ontario scheme for division of property seeks to divide up all of the property of the married spouse from the date of the marriage to the date of separation. Such a division would be ordered in most situations. The only exception would be where it was patently unfair, and this would be an unusual situation.

What goes into this Net Family Property pot?

In some cases, it is fairly obvious. Bank balances and automobiles, vacation homes, stocks and bonds and GIC’s and acquired jewelry all pop into this pot as do all charge cards and bank loans and mortgage balances. RRSP’s drop into the pot. Pensions must be appraised and the amount of appreciation of these types of assets, during the relative time frame, go into the pot.

Business interests of the spouses, family heirlooms, inheritances and personal injury awards are more complicated and will usually require input from counsel. In fact, parties with substantial assets usually are well advised to have legal advice before resolving matrimonial property issues.

Will I Lose My Home

As indicated above, there is no legal reason a person cannot walk out or ‘walk away’ from the relationship. However, under Ontario law the home you own and live in is a matrimonial asset and perhaps the largest asset of the parties. Normally, it will be sold and the proceeds factored into the division of assets if either party so wishes.

The matrimonial home cannot be sold without the consent of both parties or court order. However, if you are a spouse that requires the matrimonial home as a necessary part of your plan to help care for the children, you should seek legal representation at the first possible chance from an experienced matrimonial lawyer. You may be entitled to an order for exclusive possession of the matrimonial home and its contents.

If children are not involved, walking away may delay final resolution but

you will not be penalized for leaving the home.

What about My Pension?

The Ontario scheme for division of property is somewhat similar to other Canadian provinces and seeks to divide up all of the property of the married spouse. Pensions are matrimonial property and the value of the pension increase during the marriage, that is, from the date of the marriage to the date of separation, is to be included into the marriage property to be divided.

Lawyers normally have experts on call to value this asset for the purposes of distribution. Very often the only sizable asset that can be traded by the other spouse is the matrimonial home and quite often this is the basis of property resolution in many breakups.

Custody

Although there is some difference between the Federal Divorce Act and Ontario legislation, a child is normally a child as long as he or she is under the age of majority (18 years in Ontario). The Divorce Act definition of child presupposes that the child has not “withdrawn” from the parents charge and also allows that children with illness or disability can remain a child past this age.

Under Ontario legislation, a child ceases to be a child upon attaining the age of eighteen years, unless still in school full time. Normally, a child must be ‘habitually’ resident in Ontario, before an Ontario court will a custody or access order with respect to that child.

The Province of Ontario has in place very specific directions to courts that deal with issues of custody and access. These directions are applied by the court to a case that is brought before them

Best Interest Test

Section 24 of the Children’s Law Reform Act provides that an application regarding custody of a child or access to a child is determined on the basis of what is in the “best interests” of the child. Section 24 more particularly instructs the court to: consider all of the child’s needs and circumstances, including the following:

(a) the love, affection and emotional ties between the child and

i) each person entitled to or claiming custody of or access to the child,

ii) other members of the child’s family who reside with the child, and

iii) persons involved in the child’s care and upbringing;

b) the child’s views and preferences, if they can reasonably be ascertained;

c) the length of time the child has lived in a stable home environment;

d) the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;

e) any plans proposed for the child’s care and upbringing;

f) the permanence and stability of the family unit with which it is proposed that the child will live;

g) the ability of each person applying for custody of or access to the child to act as a parent; and

h) the relationship by blood or through an adoption order between the child and each person who is a party to the application.

Past conduct

The Act also provides that the past conduct of a parent may be considered by the court in some instances.

Who Gets the Kids?

Whether you are seeking custody of children in a divorce proceeding, or whether you are just involved in custody battle with your ex, the issue of custody addresses certain issues on behalf of the children. This approach was developed by courts in different jurisdictions and often set out in legislation. It is clear that almost any court, of any common law jurisdiction, once assuming jurisdiction over the child, will consider the same or similar issues to the ones set out in section 24 of Children’s Law Reform Act.

These statutory provisions provide a comprehensive, yet easy to follow, check list for anyone seeking custody or access. Factored in, on top of such a checklist, would probably be the issue of whether the conduct of a parent was relevant to any custody or access matter

Wishes of the Child

The wishes of the child do not affect a custody or access case until the children are 12 years of age or within a year or two of that age. Once children approach such an age their wishes can be put before the children in a variety of ways.

The Ontario Child’s Counsel (OCL). a government funded agency that retains lawyers across the Province to provide services to children as their own lawyer. Depending upon the circumstances, a court appointed OCL would meet with a child, ascertain the wishes of the child and put those wishes before the court.

Ontario courts on occasion may appoint a psychiatrist or psychologist to prepare an assessment before the court and the child’s wishes may be put forward in such assessment. A court could decide to meet with a child in the Judge’s chambers, although this method is not often used.The child could be called as a witness, depending upon the child and upon the circumstances

Can Grandparents Get Custody or Access?

There are situations in which Grandparents can obtain custody or access orders in their favour. While there is a presumption that the parents of a child are equally entitled to custody, there is no such presumption for grandparents. Grandparents only have rights to the children pursuant to court order. Grandparents should appreciate that courts will not interfere in custody and access arrangements for any but the most serious of reasons. And by starting a court action against the parents, they may be severely damage the relationship they have with the parents.

It goes without saying that grandparents are well advised to seek court intervention in only the most serious of cases; cases that involve major parenting issues that affects the best interests of the children. It is normally not sufficient to indicate that you have been denied access, a decision that parents have control over, as an aspect of custody.

There is an underlying assumption in decided cases, that access should remain in the discretion of the parents. It is not enough to show that access to the grandparents might be beneficial to the children.

The ultimate test in any custody or access application will distill down to what is in the best interests of the child.

See the contents of section 24 of the Children’s Law Reform Act under custody above.

Access

Access provisions in court orders or separation agreements govern the time that the non-custodial parent has with the child. Access provisions normally include a wide range of terms designed to preserve the bond between the child and this parent.

The times and duration of access are normally specified. This is normal when one parent anticipates that this may be a problem in the future. The access provisions can be as simple as: “...every other weekend from Friday at 5 p.m. to Sunday at 5 p.m.”, or whatever is works for the parties.There are few limitations on what sort of access the parents might agree upon.This wide scope normally allows the interests of both parents and child to be accommodated.

Maturing Children and Access

After an access order is in place and after hostilities between parents lessen, the children themselves often define or refine the access times as they mature. This allows them to incorporate their life more readily into what is often an artificial access arrangement.

Terms of access varied dramatically from case to case. The access parent often has a right to attend school functions, including parent-teacher days.The access parent often has rights to school records or health records or whatever else may be of concern to particular parents. Many access orders specify who the children will spend holidays with or what parent has what weeks for summer vacation with the child.

Access Denied

Access can only be denied in the most serious of situations and these situations typically involve physical abuse of children or some serious threat to the child. A parent denied access for no reason needs a court order for specified access that can be enforced by the police. Police are often hesitant to get involved where there is no court order in place.

Parental Abduction of Children

A bitter custody dispute occasionally results in one of the parents seeking to find a more ‘hospitable’ jurisdiction to argue custody in. In rare cases, parents often abduct the child to a jurisdiction where they will not be found, or to a jurisdiction where the abducting parent will have an advantage in any court proceeding. For example, an Iranian parent may take the child and scoot back to Iran while a Mexican parent may race back to Mexico with the child.

Most jurisdictions make some attempt to stop ‘jurisdiction shopping’. Accordingly, the provisions of the Divorce Act allows a court to transfer divorce proceeding from one Province to another if it would allow a court to better act in the best interests of the child. Almost all the Provinces have provisions aimed at allowing reciprocal enforcement of custody orders between Provinces, to minimize attempts by parents to re-try these cases until they obtain

a favourable result.

The Hague Convention, set out below is a legislative web between consenting countries that tries to address these situations.The Hague Convention on the Civil Aspects of International Child Abduction. A court order from one country is not enforceable in another country.

The Hague Convention is an international treaty between consenting countries. It is designed to help parents enforce a custody order where the child has been wrongfully removed to, or retained in, a signatory county. The list of signatories changes from time to time but includes the US, the UK and most European Countries. Approximately 50 countries have adopted this treaty. The primary goal of this Treaty is to aid in the enforcement of a custody order.

ChildFind.ca may offer practical assistance to a parent in this situation.

Restraining Order

A Restraining Order prohibits or restrains a person from doing something. In family law, a restraining order is often sought to freeze or preserve assets until a court can review and ensure that the disposition of those assets is handled either by agreement between the parties or pursuant to court order.

A restraining order is also sought to prevent a person from doing something, typically to prevent a spouse from “restraining, molesting or annoying’ the other spouse, and perhaps the children as

well. A breach of a restraining order allows the person ‘breaching’, to be arrested without warrant

Who Pays Child Support?

Child support is payable by the parent without the care of the child to the parent who is caring for the child. The support must be paid as specified in the court order. The paying parent does not get to give gifts or trade-offs for example food, in place of support. Such attempts are normally viewed as ‘controlling’. A court may order a parent who is not a biological parent to pay child support. In most cases, Child support is payable by a non-custodial parent to the custodial parent

Who Pays For Sports

The court often orders special or extraordinary expenses in addition to basic child support.These expenses are typically pro-rated between the parents based upon their respective incomes

and could include the cost of sports programs or equipment.

Children’s Medical Expenses

The court will order medical expenses paid in appropriate situations, adding such support to basic child support and will typically pro-rate this expense between the parents based upon theirrespective incomes.

Common Law

The definition of a common law spouse varies from jurisdiction to jurisdiction but in Ontario is usually considered to be in accordance with the way a ‘spouse’ is defined under Part III of the

Family Law Act. Under Part III, spouses (except for married ones) are described as either “people who live together for three or more years as husband and wife”, or “People who live together in a relationship of some permanence (and have a natural or adopted child).”These two alternative types of spouse are normally included in the common perception of a common law’ spouse.

The federal Divorce Act does not apply to common law spouses.

The net effect of the Family Law Act of Ontario is to grant a system of property division to married people but not to those who are not legally married. If you are a spouse as defined under the Part III definition above, you may seek both child support and spousal support. Spousal support is generally a financial calculation that quantifies the financial prejudice suffered by a spouse, as a result of the relationship.

Minutes of Settlement

After the parties have hired lawyers and said terrible things about each in the court documents, there sometimes comes a lull, following all the venting. When the parties decide to resolve matters, lawyers usually draw up Minutes of Settlement outlining the terms of resolution. The Minutes can resolve some issues (Partial Minutes of Settlement) or resolve them temporarily (Interim Minutes of Settlement) or resolve everything (Final Minutes of Settlement).

Court orders can be drawn up, filed with the court and appropriate orders issued. The terms would deal with the same issues dealt with in a separation agreement, however each party would normally be provided with an appropriate court order reflecting the terms of the minutes.

Who Needs a Separation Agreement?

Where both parties have accepted that the relationship is over and where there is agreement about how the issues are to be resolved, you may be a candidate for a separation agreement. Some of the issues that you should be in agreement on are: who gets custody; who gets what sort of access; what happens to the property, including such things pensions and vacation properties.

You should address who will assume the debts. The list of things you can divide up theseems almost endless. As noted, depending on the facts, and the parties inclinations, separation agreements can be lengthy and complex and subject to months of negotiation.

But people who can resolve matters by way of a separation agreement on a timely basis, are usually in a position to keep their legal costs under control. But if there is no ‘agreement’, you are possibly headed to court and in this case, you are advised to retain the services of an experienced matrimonial lawyer.

Separation

It is probably obvious that people may separate as they see fit. There may be adverse consequences to just walking out. The court may well consider that the children should remain in the home, pending resolution and it may be some time before you can have the home sold and the proceeds divided, but people may still separate as they choose.The date of separation affects the division of property. The Ontario scheme for division of property seeks to divide up all of the property of the married spouse from the date of the marriage to the date of separation.

Common Law Seeks Home

A common law spouse is extremely limited in any property dispute. There is usually no problem where the property is held jointly. Where the property is not jointly held, the common law spouse is limited to a claim in trust, a process that has practical barriers to success, not the least of which is the amount of legal fees that could be incurred.Claims in this category should be reviewed with an experienced matrimonial lawyer

Offers to Settle

Offers to settle are often key factors in assisting the court in deciding who will absorb the legal fees. Offers to settle are drafted by lawyers in consultation with the client. The goal is to be able to indicate to the court that any failure to resolve the issues lay with the other party and hence that party should pay all or a large portion of the other person’s legal fees.

Spousal Support

While parties in a Divorce action have a duty to become and remain self supporting, this is not always possible. In such a case, the parties may agree to spousal support or the court may order it. Entitlement to spousal support is a financial calculation that attempts to assess how much a spouse has been penalized or suffered financially from the relationship. This obviously varies, case to case, and depends upon the particular facts of every case.

Ballpark Spousal Support

Some lawyers have a quick way of estimating, the amount only, of spousal support. Please note the following points:

#1. We have assumed here that it is the wife who is entitled tospousal support but theoretically, it should also work in reverse (i.e. if the husband had been financially penalized by the relationship and custody and the salaries were reversed).

#2. The calculation set out below does not deal with whether or not a wife is actually entitled to spousal support i.e. the situations in which spousal support would actually be ordered by a court.

The determination of what situations actually warrant spoucalculation assessing how sal support depends upon a financial much the wife had suffered financially from the relationship. This obviously varies, case to case, and is dictated by particular situations.

#3. This is not the test a court would consider when the parties are in the beginning stages of their court problems. On an interim (temporary) basis, (which, generally speaking focuses on need and ability to pay) the court in such a case, would normally ask:

A. does she have basic expenses that she cannot cover, and

B. does he have extra income to cover it.

#4. Calculating the quantity of spousal support is difficult and normally computers do the task. The test below is not official and many Judges have their own ways to address the issue. This test is simply designed to help people get a feel for quantity and avoid ‘sticker shock’.

#5. The length of time that the support will be payable for, is a separate issue and much more subject to negotiation.

Hypothetical Husband, earns $50,000 per year.

Two children live with the wife.

Husband pays child support of $753 per month for both kids (per the guidelines).

Wife earns $20,000 per year

His yearly income =$50,000

Her yearly income = $20,000

plus twice yearly child support = 2 x (753 x 12) = 38,072 Total Income to wife=$20,000 + $18,072=$38,072

Difference per above = $50,000 - 38, 072= $11,928 

35% of the difference 11,928 X .35 = $4,174.80 yearly or $347.90 per month

Tax Consequences

Divorce and separation result in two separate households with different tax consequences. The law is confusing and expert advice should be sought. The following are the general principles.

Child support is not taxable nor can it be claimed as an expense.

Spousal support is tax deductible by the person paying it and must be claimed as taxable income by the person receiving it. Shared parenting relationships (where, perhaps both parents have access or physical custody over 40% of the time) creates special problems that should be addressed in separation agreements and court orders in order to maximize the benefit for both parties.

To avoid problems in the future, especially with respect to the Canada Child Tax Benefit, the agreement or order should address the issue of who will receive this credit and set out the period of access or custody for both

parents.

There are other tax issues that require careful consideration by both parties and sound advice upon which the parties should act.

Spousal Abuse

Spousal abuse takes many forms and encompasses everything from sneering put-downs to physical assault. Matrimonial Lawyers routinely advise clients to report incidents of serious abuse to the police

and follow through with the laying of charges. Police departments are now well aware of these issues and have developed staff and strategies to assist you. You will be taken seriously. Women who visit a lawyer often suggest that there is no proof of the assault. Follow the advice of your lawyer and leave evidence documenting to your lawyer.

A word from a neighbour, a note scribbled by an emergency room doctor, and your testimony are types of evidence that lawyers can call upon in particular circumstances.

Matrimonial Lawyers routinely suggest that an assaulted spouse, at a bare minimum, visit their doctor or go to emergency to record injuries and leave a trail of evidence about the abuse that courts can easily follow. Most matrimonial lawyers can have photographs of bruises or injuries taken for subsequent court proceedings. Most bruises show better contrast, a day or two after the assault. Family photos of injuries often find a way into court.

Assaults in front of the children can result in a denial of access privileges. Abused spouses who do not follow through, in an attempt to hold a fractured relationship together, often put their children at risk in the future.

Marriage Contracts

Marriage Contracts are defined in the Family Law Act and are for people who are married or intend to marry. These contracts are usually entered before marriage and occasionally, after marriage. A marriage contract can provide for rights and obligations upon separation, annulment or divorce including ownership or division of property, support obligations and even setting out the education or raising of children (except for custody and access rights).

Cohabitation Agreements

Cohabitation agreements are similar to Marriage Contracts except that they are entered into by people who are cohabiting or intend to cohabit. If they subsequently marry, the contract becomes a Marriage Contract.

Mediation

Mediation is voluntary. It is an attempt to resolve the matters in dispute with the assistance of a third party by way of discussion and compromise. Good Matrimonial lawyers routinely try to resolve issues in this fashion. They may have a tendency however, to resort to the traditional adversarial approach when they hit roadblocks. Some issues are more difficult to arbitrate than others. Custody is often such an issue.

Arbitration does not focus on what each party is entitled to, so much as what works for the parties and seeks common ground on all of the issues. Under Ontario law, mediation is given a role, allowing courts to order it, with consent.

Change/Vary Custody

Either party may apply to have a court order changed or varied .

To be successful the person bringing this motion to vary an order must demonstrate that there has been a material change in circumstance. Whether or not there has been a material change in circumstance is a question of fact and any competent matrimonial lawyer can render advice on this issue.

5 ways custodial parents mess up (or how to drive your child away from you)

#1. Allow the new spouse to step into the arguments between you and the ex.

#2. Ask lots of questions about the ex and his (or her) new squeeze.

#3. Keeping to the letter of the agreement over the child’s objections.

#4. Calling and demanding that the ex take all the access that the order allows.

#5. Venting about the ex to children. If he or she is a jerk, the child will tumble to this on her own.

11 Years Old and Contrary

Experienced matrimonial lawyers see one recurring pattern when children hit the age of 10, 11, or 12 years. The custodial parent (say the mom) will enter our office and complain that the child wishes to go and live with her father. What did I do wrong, she asks.

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Family law focuses on family-related issues and domestic relations such as divorce, child custody, alimony, spousal abuse, child abuse, visitation rights, child support and so on. Family law is a vast and highly specialized area. In almost all jurisdictions in the United States, family courts are the most crowded.

Family law deals with sensitive issues and therefore it is imperative to hire a lawyer who is compassionate and understands the situation. A lawyer who offers an easy and peaceful solution should be preferred over a hotheaded one. A good lawyer is one who makes a client feel comfortable. Specialization in the area of concern is another must.
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It was particularly interesting to hear how family law in the many countries of Central and Eastern Europe is still adapting to democratic government and market economies. All family lawyers will come across a case with an international element. For example, they may be required to advise in respect of the legal effect on their client's case of an Order from a Court in another jurisdiction. The lawyer may have to advise a client in respect of enforcing a maintenance order abroad or be required to register an order obtained in one jurisdiction in the Court in another European country. All family lawyers must be aware how European legislation affects their own practice.

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Monday, August 22, 2011

divorce