Why Being in Both Family & Criminal Courts Simultaneously is Hell: Top 8 Tips on How to Survive Concurrent Family & Criminal Proceedings

There’s no question that being dragged into a court proceeding is among life’s most stressful events, regardless of what kind of proceeding it might be. But what about if you’re stuck in two simultaneous proceedings, in two different courts having completely different rules, requiring different lawyers and different court dates?

One of my “things” seems to have evolved as helping clients with simultaneous family and criminal court proceedings. Usually it’s the criminal case that starts first. Though it might be the family case. Sometimes one spouse is charged with something. Sometime they’re both charged. The result can be absolute spousal non-communication for any purposes bail orders, combined with prohibitions on seeing children.

But the non-communication - even through lawyers - means family court disputes over children, property and support can get frozen for many months in an ice age of criminal procedure, where your lawyer can’t even find out if your spouse has hired a family lawyer, as that enquiry could itself be a breach of a criminal no contact order. The inevitable result is a great big intractable legal mess, even when both parties want to make some progress resolving the family law issues.

Here are my top 8 tips on how to make progress in surviving concurrent family and criminal court proceedings.

1. Request Release Conditions at Time of Arrest or Bail Hearing Permitting Indirect Spousal Contact Through Counsel for Purposes of Family Proceedings

You might think you’ve got no leverage to negotiate anything at the time of being arrested, but you could be surprised at what you can get from an arresting officer or a court if you ask nicely. Even if you think family law proceedings are unlikely in your case, if your charge has anything potentially to do with “domestic violence” you need to anticipate that family law might later get involved. So ask the arresting officer or justice of the peace in bail court for an indirect contact exception through legal counsel with your spouse for the purposes of family law separation or court proceedings.

That indirect contact through counsel exception dealt with up front might save you months of misery trying to later get a consent bail variation through the court. The Crown (and courts) will often favour a “cooling off period” for any subsequent contact between spouses after a domestic charge is laid, making immediate negotiation of a variation a challenging process. Addressing the indirect contact issue up front with the arresting officer will so simplify things.

2. Avoid Indirect Contact Temptations

Don’t under any circumstances try to indirectly contact your spouse to deal with family law proceedings, or to respond to his/her initiation of those proceedings, without a no contact order exception if you’re bound by criminal release conditions requiring no contact. There is no “necessity” exemption to no contact.

3. Resolve Criminal Proceedings ASAP

As slow as it might seem, generally the criminal justice system moves a lot faster than the family justice system, due to guaranteed rights like trial within a reasonable time. Rather than fight a war on two fronts simultaneously, it’s going to be easier for your to mentally and financially deal with one battle at a time. Thus usually the best approach is to try to resolve criminal proceedings as soon as possible so that you can move on with family proceedings.

Very few criminal cases ever proceed to trial, thus you should assume resolution is possible. And even if your case is one of those to go to trial, since criminal trials are often set up to a year in advance because of court backlogs, the sooner you set that criminal trial date, the more breathing room you’ll have to deal with family proceedings while awaiting criminal trial.

4. Remain Silent in Family Proceedings if Necessary

While you’ve only got a right to remain silent in your criminal and not your family law proceedings, practically you don’t want to do yourself in on the criminal side by blabbing on the family side. Don’t admit to anything in family proceedings that might prejudice your criminal case.

If a CAS investigation is ongoing, explain to CAS that you can’t discuss the matters related to your ongoing criminal proceedings. Same with a custody and access assessment.

Now I know you might be thinking keeping custody of your children on the family proceedings side is far more important than potentially risking a little jail on the criminal proceedings side, plus you’ve done nothing wrong so you don’t have anything to worry about on the criminal side anyway. However, you need to attempt to avoid giving any evidence in the family proceeding so as to preserve your criminal trial right to remain silent, and not risk an attempt by someone to use any family court evidence against you in the criminal proceeding.

Practically speaking there is a balance here in giving evidence that you need to speak to your lawyer(s) about, since insisting on absolute silence in family proceedings in the face of multi-year criminal proceedings won’t be a tenable position. However, staying silent for a few months while criminal proceedings are expeditiously resolved could be more viable.

5. Focus Family Proceedings on Issues Avoiding Criminal Allegations

If family proceedings can’t be put off pending conclusion of criminal proceedings, try to avoid any talk of criminal proceeding events in family court and instead focus on (a) property division, (b) spousal support, and (c) child custody/access/support, in that order. While property division might initially be the lowest priority, it is also likely the safest issue to openly discuss as it is not dependent on conduct of the parties. While spousal support has some conduct implications that might require the parties to give evidence, it is less evidence heavy than issues involving children which can require a wall of facts to deal with.

6. Budget for Much More Money on the Family than Criminal Proceedings Side

In budgeting, generally your criminal proceedings are likely to cost far less in legal fees than your family proceedings, even if you take your criminal charge to trial, simply because criminal cases usually involve much less court and preparation time than family cases, which can get very document intensive, involve complex financial calculations, and have many substantive court appearances that stretch out over months and years: case conferences, settlement conferences, trial management conferences, motions, as well as trials.

It is possible if you take a complex criminal case to trial, but amicably settle your family case, that the family court proceedings could cost less than the criminal proceeding, but that will be a rare scenario.

Now you might be tempted to think you can only afford a lawyer for one legal battle, and are wondering if you should deploy the lawyer on the criminal or the family side? My suggestion is that such choices are impossible to make. Losing either could ruin your life. Better try to stage and sequence proceedings, meaning criminal first which should wrap up within 12 months (unless a very serious case) and family after.

The specifics on true costs? Many criminal charges can often be resolved for under $5,000 in legal fees. Many less complicated criminal trials can be run for $10,000 to $15,000 if they only involve a couple of days in court, plus preparation time.

By comparison, a full blown family law trial can top $100,000 in fees (and some can top $200,000 if there are motions and appeals). Rather than being measured by total days in court (start to end), family law proceedings can be measured by weeks in court, stretching out over many years. There are certainly ways to reduce the total expense, but even the most efficient family proceeding, where spouses agree on most of the issues, is still going to cost more than most criminal cases.

7. Plan for Much More Time on the Family Proceedings Side

I’ve seen family law cases regularly go for over 5 years. With criminal, you’re usually at the one to two year level at worst, and sometimes it will only be a few months if the matter can be resolved.

Again, there are ways to speed up family cases, but you can almost always bet on a simultaneous criminal case getting to the finish line first before the family proceeding.

8. Consider One Lawyer to Represent You in Family & Criminal Court

Consider hiring a lawyer that can deal with both your family and criminal proceedings. But be very careful in considering the potential for one versus two lawyers, as the main advantage will be that you’ll have a common point of contact, and there can be better coordination in presenting strong legal cases for you in both courts. This won’t necessarily save you money as the type of work required for each kind of case is quite different. And you don’t want to wind up with a lawyer who knows a whole lot about one type of law, but almost nothing about the other.

In my experience, there aren’t a lot of lawyers who do an equal amount of criminal law and family law, though a few of us do exist, perhaps because we started in one area of the law (in my case criminal law where I served for many years as a Federal Crown Prosecutor), prior to moving into the other area. Certainly some judges in Canada are expected to be equally knowledgeable about criminal and family law, if they are to try both kinds of cases, so balanced family and criminal knowledge is possible on the lawyer side. Just choose carefully.

Gordon S. Campbell equally practice both family law and criminal defence law throughout Ontario. He has appeared on family and criminal trials and appeals in the Ontario Court of Justice, Ontario Superior Court of Justice, Ontario Divisional Court, Court of Appeal for Ontario, and at the Supreme Court of Canada. Learn more at www.nofearfamilylaw.com and www.defenceeast.com.

Which Country Do I Start Family Law Custody, Support or Property Proceedings In? How to Figure Out Jurisdiction in a Transnational Family Law Case

The increasingly effortless globalization of international commerce and travel fails to recognize the equally increasing challenges posed by the world still being cut up into perhaps over a thousand family law jurisdictions, none of whose laws perfectly align, and many of which represent outright contradictions. As people become more and more mobile for work, study and personal reasons, many will bring their families with them, or found new families in their adopted countries. But when some of those family units breakdown, spouses and children can become geographically and financially marooned, unable to obtain divorces, unable to move with children, pursuing children who have been wrongfully removed, and unable to obtain financial support.

The world’s nations have not been blind to this international family law conundrum. The Hague Conference on Private International Law has devoted a lot of time to family law, even if the early motivation of the Conference was more to harmonize commercial law. The challenge is that while likely every legal system of the word recognizes a commercial concept like the contract, and that contract law has effectively been around for thousands of years as without it even early civilizations could not have developed, some suggest family law was only invented with the advent of no fault divorce, prior to which it was mostly only the domain of the rich.

There remains very little truly “international law” in the world, being law that applies commonly in all countries, or at least in countries that have signed up to and implemented international treaties. There is some public international treaty law like the United Nations Convention on the Rights of the Child which has application in the family law world, but for the most part family law is “transnational” rather than “international” in nature, meaning individual countries (or provinces and states within those countries) need to figure out how their clashing incompatible laws can somehow work in consort when spouses, children and property might be spread amongst multiple jurisdictions.

“Residency” is probably the most important word to keep in mind for transnational family law (for actual or prospective spouses and children), followed by the phrase “location of property.” Residence and location of property most drive where which country’s law will or should apply within the context of the five key pillars of family law: (1) marriage; (2) divorce, (3) property division, (4) spousal and child support and child custody.

Why is Marriage So Easy & Divorce so Difficult?

The nations of the world present a surprising uniformity in making marriage relatively easy, though there could be residency or religious limitations on marriage. However, when it comes to breakdown of those marriages, the world’s a thousand piece jurisdictional jigsaw puzzle, missing a bunch of the key pieces.

1. Marriage - From a transnational family law perspective, I usually don’t see a lot of trouble over people having been lawfully married. Most countries will recognize each other’s marriages. And most people understand that some kind of government approved marriage licence is necessary in order for a marriage to be valid, such that if they’re refused a licence due to not meeting local requirements, they usually don’t attempt to proceed marry there anyway.

The threshold for marriage is often simple proof that you’re of a certain age, not married to anyone else, and not too closely related to the person you are marrying, but globally marriage laws remain a mosaic with varying ages, abilities to have more than one spouse, and consanguinity requirements. There could also be religious requirements, or sexual identification requirements.

The most common difficulty for marriage recognition may be where couples decide to engage in religious marriages, fully in accordance with the laws of their religions, but don’t believe it necessary to obtain civil recognition of those marriages in the locations they’re married, perhaps because that is impossible due to lack of residency. While the marriages might endure for years as completely valid in the eyes of the couples, their families, and their religions, other states might not consider them valid for the purposes of civil benefits or immigration because of the lack of civil recognition.

2. Divorce - Generally you don’t need to get divorced where you got married. The trick is that most places have a residency requirement (and a waiting period) in order to apply for a divorce. For those places with very easy divorce qualifications, you’ll still need to verify if your home country and the place in which you got married are going to recognize that divorce.

Just because one jurisdiction declares you divorced doesn’t mean other places are going to recognize it, especially if they require you to account for the “big three” of family law already being settled prior to divorce recognition: (a) property division; (d) child support; (c) spousal support.

Increasingly in common law jurisdictions, divorce by itself doesn’t do a lot for you other than permit you to remarry. Property division, child support, and spousal support are commonly first dealt with by way of separation agreement or court order. You can certainly wrap up a request for a divorce into the big three, but it’s only through solving those three issues that you can consider yourself free of the entanglements of family life.

While a court might not give you a divorce unless those three issues are settled, you can settle the big three without a divorce. Indeed, some couples are legally separated for decades and never bother with divorce until one of them decides to remarry.

Follow the Money

3. Property Division - It often makes most sense to sign a separation agreement or bring separation court proceedings in the jurisdiction where most of your property is located. That way local courts can enforce whatever you agree to, or impose a settlement if agreement is impossible. Interim relief - like the forced sale of a family home that a separating couple can no longer afford to maintain - can also be granted that way.

Even if you have the potential to use the law of a place where your property isn’t located in order to divide it, if voluntary measures to split it up fail you might need to recommence legal proceeding a second time where the property is located if you have an out of jurisdiction court order pronouncing on asset division. Many incorrectly assume because they have a court order from one place, all courts worldwide (or even within the same country) will simply rubberstamp foreign order enforcement; rather, you should assume a huge new fight every time you enter a new jurisdiction with that order.

While you might think there must be a simple way to just file a foreign court order in another jurisdiction, and that place will automatically recognize it and give you what you want, that unfortunately not the way it works is your ex-spouse fights you on recognition.

This isn’t to say a property order from another jurisdiction is worthless. Some couples could have property in several jurisdictions, and they ultimately need to pick only one place in which to sign a separation agreement or have a court settle their issues. Multiple separation agreements for multiple jurisdictions of property might also be possible, but great care must be taken that the agreements don’t contradict each other - even in a minor way - as it then might be impossible to know which agreement should be followed. But generally divorce would only happen in one place, as while the separation agreements are in a sense no more than contracts between parties, divorce is usually granted by the state under a statutory scheme, or sometimes by a religious court with government sanction.

If all goes as it should, and each splitting spouse upholds their side of the bargain in a separation agreement dealing with division of all assets, inter-jurisdictional property problems will be a non-issue. But if agreement is impossible, or isn’t fully implemented, and thus a forced resolution to family property issues is necessary, then legally starting off in the right place is crucial to avoid financial and emotional exhaustion in a multi-year battle over transnational judgment enforcement.

Follow the Support Enforcement Tools

4. Spousal and Child Support -Executing an agreement or bringing court proceedings for spousal or child support in the place where the payor is resident makes the most sense when possible, as then like for property division it will be easiest to enforce payment by using the court process and civil administrative support systems of that jurisdiction if after you obtain a spousal support order the payor refuses to pay.

Many jurisdictions have enacted much greater enforcement powers for family support payments than for other kinds of civil debt. Cancellations of government permits and seizure of income tax refunds can all be very effective in encouraging family support payment compliance. But only if the payor is in a jurisdiction with those measures, and that jurisdiction recognizes the support order you have in hand.

Of course if the law of that jurisdiction isn’t advantageous for spousal or child support, proceeding elsewhere might be more advisable. But if that location where the payor is located refuses to recognize the foreign support order, perhaps because of fundamental legal system incompatibility, then the foreign proceedings might have been pointless unless there is a chance in the future that the payor might move to a jurisdiction more open to enforcing the order.

Follow the Children

5. Child Custody - Jurisdictions generally will only deal with child custody if the children are resident in the jurisdiction. What being resident means can have infinite interpretations. While emergency applications to bend the rules on residency due to the children being in danger may be possible, generally being on holiday in Florida does not guarantee the Florida courts will take jurisdiction if you decide you don’t want to return to Canada with the children after the March Break vacation .

Even where children have been wrongly taken from one jurisdiction to another, while you can seek diplomatic help from your own government in making a request to the other government for voluntary return of the children, if the parent who has the children refuses voluntary return, you’re going to wind up in court wherever the children might be located. And be prepared for a fight that might last years, even if you’re in a Hague Convention jurisdiction, since appeals are always possible.

Although the Hague Conventions have agreed upon many principles concerning the voluntary return of children to another jurisdiction, many countries haven’t signed on to the Hague Conventions, and even for those who have it’s their own national laws which implement the Conventions. The Conventions don’t have their own court systems, and don’t have supranational rules that trump the domestic laws of states where children are found.

The 4 Principles of Family Law Jurisdiction

1. For marriage and divorce, ensure you not only qualify under the laws of the place you are planning the marriage or divorce, but also that the place(s) where you ordinarily reside will recognize the marriage or divorce.

2. For family support (spousal or child) proceedings, generally attempt to commence proceedings wherever the payor is resident.

3. For family property proceedings, generally attempt to commence proceedings wherever the property is located.

4. For child custody proceeding, generally commence proceedings where the children are ordinarily resident, which might not be the same as the location they are found in at the time of a parental split.

There are unfortunately a myriad of exceptions to these principles. But at least using them as a base minimize that risks of wasting huge amounts of time and money in the wrong jurisdiction.

Gordon Scott Campbell practices transnational and inter-jurisdictional family law throughout Ontario, Canada. His work especially involves complex international custody, support and property disputes including appeals. He has served with the Department of Justice Canada, Global Affairs Canada, and as a delegate for Canada to United National and APEC meetings. Learn more at www.nofearfamilylaw.com.

Your Odds are Way Better than You Think on Getting Leave to Appeal to the Supreme Court of Canada for Your Family Law Case

Since the media is so full of Supreme Court of Canada stories recounting overturned criminal convictions or acquittals and Indigenous rights affirmed or denied, you might be surprised to learn that a relatively high percentage of those who apply for leave (permission) to appeal family law cases to the Supreme Court of Canada actually receive such leave to have their day before the highest court in the land. The latest available 2017 stats from the SCC say only 2% of leave applications were in family cases, meaning only about 8 people in Canada (out of a total of 429 leave applications for all subjects) tried to get their family law cases heard by the Court.

While the SCC unfortunately doesn’t explicitly break down numbers of family cases where leave was granted in its online Statistics Report 2017, pulling all 2018 judgments from the SCC shows the Court actually decided two family cases that year (the year when a case receiving leave in 2017 would most likely be heard, though dates could vary plus or minus a year). That would represent an extraordinary leave grant rate of 25% (2 cases out of 8) for family law matters, where the usual rate of granting leave for all types of cases before the SCC is about 1 in 10:

  1. Moore v. Sweet, 2018 SCC 52 - unjust enrichment claim by former spouse to life insurance proceeds decided in her favour against new common law spouse, even though Court of Appeal had ruled against former spouse, with SCC splitting 7-2 on result;

  2. Office of the Children’s Lawyer v. Balev, 2018 SCC 16 - Hague Convention on Child Abduction determination of habitual residence of child removed from other country to Canada, with SCC splitting 6-3 on result.

Even if the math is off a little in assumptions on year leave is applied for versus year cases are heard and judgment is granted, and we round down to a 1 out of 8 appeals heard versus leave applications made for family cases, that still puts the odds for having your family case heard by the Supremes above the average 1 in 10 rate for all types of cases.

Thus if you’ve been unsuccessful in your family law case in the highest court of your province or territory, you’ve definitely got a shot at SCC leave. You need not be deterred by the fact that the SCC only produces one or two family law decisions a year, if only about 8 people throughout all of Canada each year are even asking the Court to hear their family cases. Those aren’t bad odds.

Yes, there will be a lots of family litigants who are exhausted both emotionally and financially from the already long fight up to a provincial court of appeal such that they just will no longer have it in them to ask the SCC to get involved. But for others, there is definitely hope.

Here are my top three tips for family litigants hoping to get to the SCC (or responding to a SCC leave application).

1. Be on Time With Serving and Filing for Leave to Appeal Your Family Case - you’ve only got 60 days from the date of the judgment you’re seeking leave to appeal to serve and file a complete leave to appeal application (NOT just a notice) with the Supreme Court of Canada.

2. Understand Limits of SCC Jurisdiction Over Family Cases - only family law judgments from the highest court of any province or territory can usually be subject to a Supreme Court of Canada leave application. There are a few rare exceptions to this, but generally you need to have exhausted all possible appeals in the provincial or territorial court system before petitioning the Supremes. However, you don’t need a “final” judgment on which to seek leave. An interlocutory temporary order could be just as much the subject of a leave to appeal application.

This means in Ontario, for example, that you if you’re fighting over child custody, and you’re in an “ununified” jurisdiction where the Ontario Court of Justice usually hears those types cases, you might have already had two levels of appeal - to the Ontario Superior Court of Justice and the Court of Appeal for Ontario - prior to getting to the SCC leave stage. Be aware that interlocutory family orders in Ontario have a different appeal route - to the Divisional Court - and tests to meet for being able to appeal, as compared to final orders.

3. Know How to Sell the “Public Importance” Aspect of Your Family Case to the Supremes - the test set out in s. 40 of the Supreme Court Act for granting leave to appeal is “public importance or the importance of any issues or law or mixed fact and law … or is, for any other reason, of such a nature or significance as to warrant decision by” the Court. So sell the issue(s) you’re hoping the Court will hear as novel, as being of importance to all Canadian families, as being subject to conflicting family court decisions throughout Canada (or at least within your province), and generally as having great ramifications beyond your own family circumstances.

Gordon Scott Campbell serves as counsel throughout Canada on Supreme Court of Canada leave to appeal applications and appeals, as well as acting as a required agent with the SCC for lawyers from outside the National Capital Region. Appeals before the Ontario Divisional Court and Court of Appeal for Ontario, as well as transnational proceedings including Hague Convention matters, are focusses of his family law practice. He previously served with the Department of Justice Canada and the Ministry of the Attorney General of Ontario.

The Top 5 List of Reasons All Your Family Problems Really Are Your Lawyer's Fault

There are lots of types of law out there to practice. But the one legal practice area where I hear people most consistently blame their lawyers for all their problems is family law.

I’m the first to admit some lawyers may be better at their jobs than others (just like for any profession or trade). And there may simply be better “fits” between certain clients and certain lawyers, whereas others may be a mismatch. But it is a somewhat unique quirk of family law that six different lawyers may have been consecutively retained by a client to handle a case, eventually leading the client to decide being a self-rep is the way to go.

Here’s my top five list of reasons all your family problems really are your lawyer’s fault, according to what I’ve heard real people tell me.

And note, just to avoid any misunderstanding, these are not things I am suggesting you do, but rather things not to do. Do them, and you’ll not only likely lose your lawyer, but also lose your case.

Reason #5 - Your Lawyer Doesn’t Take Calls or Even Reply to Emails on Christmas Day

Any reasonable and competent lawyer would know that Christmas Day is the high water mark of family conflict, especially where child access exchanges are concerned. Children may be late being dropped off. Tempers can flare. Immediate legal advice (and possibly court action) is clearly needed. On December 25th.

Reason #4 - Your Lawyer Expects to be Paid

Any reasonable and competent lawyer should understand that times of family upheaval are the worst possible times to be asking for money. Assets need to be sold. Credit cards get maxed out. Electricity and food bills are clearly a higher priority than legal bills. So a lawyer asking to be paid is just not reasonable.

Better the lawyer should accepted payments of about $50 a month on that $10,000 account, since that will mean the bill will be paid off in no time at all.

Better still, the lawyer will work on contingency, and not expect any money upfront (not even for court filing fees), confident in a huge payoff five years down the road when the other side has capitulated to the legal onslaught, their case crumpling like wet Kleenex.

Reason#3 - Your Lawyer Isn’t Nasty Enough to Your Ex & His/Her Lawyer

No one ever won anything by being nice. Negotiation is for wusses. This is war, and any competent lawyer should understand that. A take no prisoners strategy is most likely to intimidate the other side, and so scare them that they will concede whatever is being asked for.

Other lawyers (and judges) are easily intimidated, so the nastier the letters and the more idle the threats they contain, the more likely you are to get what you want.

Reason #2 - Your Lawyer Keeps Telling You Some of Your Favourite Strategies May be Unethical or Illegal

Reporting a spouse to Children’s Aid or the Police is a good way to put extra pressure on them to settle their family court issues. By putting them in criminal court and child protection court simultaneously, they will buckle under the pressure, and just give up.

Whether there is a solid factual basis to make CAS or police reports matters not. Events from years past can be dredged up and elaborated upon a bit to make them seem more serious. With mandatory charging policies by the police and investigation policies by the CAS, this strategy could force a spouse from the family home and deprive them of any access rights to the children far better than any family court order.

And the winner for the top five reasons all your family problems really are you lawyer’s fault is …

Reason #1 - Your Lawyer ThinkS S/He Knows More About the Law Than You Do

Everyone knows the invention of the Internet has pulled back the sacred curtain that shielded legal knowledge from the masses. No longer are people at the mercy of the lawyers, jealously guarding their scared knowledge like high priestess and priests of days gone by.

Now it’s easy to read the law, and apply it to every family problem. Easy to fill out court forms are online and keyword searching permits hunting down highly relevant family law decisions from the English courts dating from 1806.

The fact your lawyer refuses to use these golden nuggets of legal information that you keep unearthing is clearly a sign of incompetence, leading you to think you really should handle everything yourself. Not only would it be way cheaper, but your amassed research has led you to conclude that you really do understand your case better than anyone else. And so who better than you to explain it directly to a judge. Preferably with 100 secretly recorded audio and video files of your ex and children to present to the court in support of your persuasive points.

Gordon S. Campbell practices family, civil and criminal law throughout Ontario and immigration law across Canada. He has appeared on trial and appeal cases up to the level of the Supreme Court of Canada. Learn more at www.nofearfamilylaw.com .

Top 5 Things Every Immigrant or Spouse of an Immigrant to Canada Needs to Know about Canadian Family and Immigration Law When Relationships Crash and Burn

Canada now accepts more immigrants than any other country on earth. It’s therefore simply human nature that some of them are eventually going to run into family law problems. Sometimes family problems only happen decades after immigration. At other times they occur before immigration paperwork is even finalized. 

I practice both immigration and family law. Here are my top 5 tips for what every immigrant or spouse of an immigrant to Canada needs to know about both family and immigration law when a relationship fails. 

1. Once You Are a Permanent Resident of Canada a Relationship Breakdown Won’t Threaten Your Status

Even if you were sponsored as a spouse to come to Canada, and your spouse made a pledge to support you for a certain period, the fact that you split from your spouse during that guarantee period does not in any way imperil Permanent Residency (PR) that you’ve already been granted. You do not need to be concerned by spousal threats made in an attempt to intimidate you which claim that if you leave the relationship you’ll lose your children or your immigration status. 

The sponsoring spouse's support obligations will continue even if you split, but there is no obligation to continue to live together during an immigration sponsoring spouse guarantee period. There was a short-lived attempt by a prior government to impose such an obligation, but that direction has now been reversed in recognition that it might promote continuation of living in an abusive relationship. 

If you’re a PR, you’re a PR. So long as you uphold your residency and other obligations under the PR, your ex-spouse won’t be able to influence government decision making on your immigration status including whether you should eventually be granted citizenship. 

2. If Your Spouse Yanks Your Sponsorship Prior to You Receiving Your Permanent Residency You Have a Problem

Because of the lengthy time spousal sponsorships can take to process by Immigration, Refugees and Citizenship Canada (often a range of 4 months to two years), it’s only natural some relationships are going to break down during that period. I'm frequently contacted by distraught spouses who have had their sponsorship yanked, some who have been living in Canada for a long time, others who had arranged their entire futures premised on an imminent move to Canada. What’s to be done? 

You can’t force a spouse who is no longer a spouse to continue to sponsor you. To do so could in fact be an offence under the Immigration and Refugee Protection Act, and at the very least could trigger misrepresentation allegations. If your relationship breaks up, you need to immediately seek the advice of both an immigration lawyer for Canada and a family lawyer for wherever you are currently residing. 

Even as a sponsoring spouse, you’ll need advice on your obligations to terminate the sponsorship. If there is a prospect of reconciliation, you might not need to immediately halt the sponsorship process, but you should immediately seek out legal advice as both sponsor and sponsoree could be liable for continuing a sham process. 

There may be ways a previously sponsored spouse could continue to live in Canada, notwithstanding the revocation of the sponsorship. While various other measures should be attempted prior to a Humanitarian and Compassionate Grounds application to the Minister, an H & C could especially work if there are Canadian born children of the relationship. Even if you have not yet come to Canada as a sponsored spouse, there could be other ways to independently immigrate. Talk to an immigration lawyer; every situation is unique.

3. Try to Avoid Going to Any Contested Family Court

As a lawyer primarily practicing as a litigator, going to court is my business. So trust me when I say court is the last place you want to take your family problems if you can at all avoid it. Court should be a last resort, not a first resort, especially if there are potentially transnational family law issues in your case which could greatly increase complexity and cost.

Within reason, splitting spouses can voluntarily agree to just about anything when it comes to child custody, division of property, child support and spousal support (the Big 4 of family law). If you want a Canadian court to codify your separation agreement into a family law order (or at least to later enforce an agreement), you may be a bit more restricted on what you can voluntarily agree to. But certainly uneven splits of custody, property and support are entirely feasible (preferably with each party having independent legal advice), with child support being the issue courts will pay the most attention to since they want to ensure children are adequately provided for, regardless of the mutual intentions of the parties. 

There’s nothing stopping you under Canadian law from initially concluding a separation agreement voluntarily by negotiation, and then going to court later if circumstances materially change. But be aware that the spouse seeking to vary the voluntary agreement’s terms will bear the burden in demonstrating change of circumstances, that courts are unlikely to interfere if less than 6 months have passed since the signing of the settlement, and trying to undo a division of property can be almost impossible. It is child custody and child or spousal support that are most prone to later variation. 

4. If You Must Go to Family Court Pick the Jurisdiction Where Most of Your Children, Property and the Other Spouse are Located

I recognize that for immigrants - especially more recent immigrants - children, property and spouses may not all be located in one country. They might not even be located in only two countries. But as a splitting immigrant spouse, or a spouse splitting from an immigrant, you need to conduct a very careful assessment of where you’re going to get the most judicial bang for your buck before starting court proceedings. 

While some spouses might think forum shopping is the way to go, seeking to pick the jurisdiction whose law is most favourable to their position, that approach might be setting yourself up for expensive failure if you’re unable to enforce any order you get out of that jurisdiction in the jurisdiction where your spouse, children or property are actually located. Some mistakenly think enforcing a foreign order is a rubber stamp process, whereas in reality it can be like starting litigation all over again in the new jurisdiction. Yes, your foreign order might be mildly influential on worldwide results, but courts have a habit of being very territorial, insisting on applying the legal principles in force in their own jurisdiction, rather than simply adopted what a foreign court found to be just. 

So even if you get a foreign order awarding you custody of the children, and spousal support, and splitting your matrimonial property in a way that is quite favourable to you, if you get the order in a place where none of your children, spouse or property are located, it may be a pyrrhic victory. Of course if some of your property is there, but not your children, then you might need to assess relative priorities in engaging in incremental family litigation that first secures some property rights, and later pursues custody issues. You might need to create a grid of pros and cons for each jurisdiction, and then reach out to family lawyers in each of those jurisdictions for them to give you assessments of your prospects of success in those locations. 

5. Be Very Cautious of Self-Help Family Remedies Altering the Status Quo

Relationship breakdown is fundamentally about family change. Some immigrant spouses may decide as part of that change that they prefer to return to their country to origin, or to a third country, rather than remain in Canada. Even where both spouses are immigrants, one might be keener than the other on Canada, leading one to insist upon staying in Canada, and the other wanting to leave. The flip side can also happen, where an immigration hasn’t completed, leaving one spouse including children outside Canada when the relationship ends. 

Canadian family courts (as well as the family courts of some other jurisdictions) are very keen on maintaining what’s known as the status quo pending either the voluntary agreement of the spouses, or an enforceable order of the court. This status quo means that children continue living and attending school where they’ve been for a settled period of time prior to the spousal split, and that family property is preserved. 

One spouse rushing off to alter that status quo - by disposing of family assets, or even fleeting the country with the children - can be of great concern to Canadian courts, even if there isn’t a formal court order in place preserving that status quo. Courts may even go so far as to issue emergency ex parte (without notice) orders against a spouse where there is credible evidence that the status quo is being dramatically altered. And the status quo altering spouse may be so negatively perceived by the courts in future proceedings, that it becomes very difficult for that spouse to sufficiently redeem him or herself in the court’s eyes so as to receive equitable treatment. 

So the message is spouses shouldn’t be fleeing the Canada with their children who are well established in Canada, or attempting to grab their children from foreign jurisdictions to bring them within the physical jurisdiction of Canada. Likewise, spouses shouldn't be liquidating all their domestic or foreign family assets on a self-help basis. If you think my points here seem overly obvious, I challenge you to go online and look at the litany of cases in Canadian courts where this is exactly what has happened.

The unfortunate upshot of family breakdown for immigrants or spouses of immigrants may be that each spouse requires both immigration lawyer advice and family lawyer advice. Family lawyers in more than one jurisdiction could even be needed. If voluntary agreement on settlement is possible, overall legal costs don’t need to rise to significantly beyond those that would be typical in a purely Canada-based  separation. But if court action breaks out, spouses may need to prepare for a multiplicity of transnational proceedings, and especially evaluate in which jurisdiction their legal resources are best employed taking into account respective locations of the spouses, family assets and children. 

Gordon S. Campbell practices immigration law across Canada and family law throughout Ontario. He has litigated transnational cases for the Department of Justice Canada including representing foreign states, and collaborated on UN, APEC, OECD, World Bank, and G8/G20 projects including serving as a delegate for Canada. Learn more about the family practice at nofearfamilylaw.com and immigration practice at compleximmigration.ca.

Top 10 Things Every Parent Needs to Know About the Hague Convention on the Civil Aspects of International Child Abduction

1. The Two Truths to Global Parenting

There are two truths to parenting today that sometimes crash into each other: 

  • parents are internationally more mobile that ever; 

  • spousal relationships fail. 

As a result, even those who understandably have never paid much attention to international treaties seem increasingly to have heard of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, which is used around the world to compel return of children to jurisdictions from where they were unlawfully taken. You need to understand the power and the limits of that Convention if you’re a parent who has children who might be living or even travelling outside their home country.

2. Why Domestic Family Law is Increasingly Internationalized

I used to do diplomatic work for Canada and studied public international law. It never occurred to me at the time how useful that experience might be in practicing as an international family law lawyer. Family law may be one of the most “domestic” of the legal disciplines, in that each country (and sub-jurisdictions within countries) frequently conceives of family law in dramatically different ways. Which isn’t the case with other legal disciplines like contract law. 

But just like the world began centuries ago out of necessity to invent common legal rules for ships moving among states, it’s increasingly started to agree upon some common family law principles to resolve issues of which country has jurisdiction over increasingly mobile family disputes including children. 

3. The Five Situations that Most Engage the Hague Convention

You might internationally find yourself in one of five situations if your relationship with your child’s other parent fails:

  1. you're stuck with your children in a “foreign” country that the other parent is a national of, and you want to take the children back to your home country away from your spouse's country;

  2. you’re living in your home country, but your spouse wants to take the children out of that country back to his/her home country;

  3. you’re both in a “foreign” country that you are residents of, and each of you wants to take the children to another country that you can’t agree upon;

  4. the other other parent has fled with the children from the country they (and you) were living in to another country;

  5. you’ve fled with the children (perhaps under the pretext of a “holiday”) from the country all of you were living in to another country.

“Can I/he/she do that?” is commonly the burning question. You need to have some understanding of both the Hague Convention as well as the legal systems of the country the children are currently in and any other country a parent hopes them to move to.

4. Hague Convention Basic Principle is Return After Wrongful Removal

A general rule of jurisdiction for international child custody fights (with significant national variations) is the court with jurisdiction is the one where the children are ordinarily resident. That does NOT mean where they are citizens, or living for a short time, or currently found. How residency is defined can be tricky, but usually some degree of being legally settled combined with a minimum time presence like 3, 6 or 12 months.

Sometimes you’ll hear the term “domicile” used which is similar to and occasionally interchangeable with “residence,” but of a more permanent and legalistic nature.

Like other international treaties, there are lots of words in the Hague Convention. But Articles 3 and 12 are probably the two most important for parents to know about:

Article 3

The removal or the retention of a child is to be considered wrongful where -

a)   it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and 

b)   at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention.

The rights of custody mentioned in sub-paragraph a) above, may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.

Article 12

Where a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith.

The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment.

So you need a combination of (a) wrongful removal breaching custody rights and (b) less than a year having passed since that removal in order to trigger automatic return of the child. But a court hearing would usually be required to prove the wrongful removal aspect triggering “shall order the return,” so return won’t be instantaneous.

In practice it can be hard to invoke the settled for more than one year proviso unless it can be proven that the other parent knew about the child’s location and did nothing to pursue the child’s return. Where one parent has hidden the child, courts generally would not look at the one year limitation period being applicable. 

So the key points for Article 3 and 12 are:

  • act quickly to demand a child’s return as soon as you learn your child has been taken to another jurisdiction with no plans for return;

  • that demand may require a court hearing for you to prove the wrongful removal;

  • if you are a parent facing a claim of wrongful removal, you could likely best defend it on the basis by arguing the removal wasn’t wrongful. 

Both parents are going to need a lawyer where the children are located. A parent seeking return to another country might find a lawyer in that country helpful in collaborating with a foreign lawyer in the jurisdiction of the children, but if things need to be fought out in court the lawyer located where the children are will be key.

5. The Hague Convention Grave Harm Exception to Return

I’m often asked by desperate parents about whether they can invoke exceptions to the Hague Convention because of domestic violence. The short answer is yes. But you’ve got to be prepared to prove it. 

Article 13 sets out a grave risk of harm principle as a key exception to the Convention,: 

Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution or other body which opposes its return establishes that -

a)   the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention; or 

b)   there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.

There will be extreme cases, supported by compelling evidence, where even if children have only briefly been in a new jurisdiction, or even if they were taken from another jurisdiction without a parent’s consent, a court might accept to hear a custody case as a normal matter of domestic family law and not order the children’s immediate return to the foreign jurisdiction because of “grave risk.”

Courts repeatedly hear allegations of spousal and child abuse brought by the fleeing spouse against the spouse seeking return of children. Because of the commonness of the allegations, courts cannot accept them at face value even if true. Because the test is “grave risk” and not just “risk,” clear, credible and compelling evidence is needed. And unfortunately that evidence might be stuck in the country fled from.

So medical reports that go beyond just repeating allegations and that link specific injuries to having been caused by the other spouse; court documents including records of criminal convictions for abuse; government children’s aid reports documenting abuse investigations and outcomes; sworn witness statements from third parties testifying to first hand witnessing of the abuse, or hearing abuse, or seeing injuries, or being told about the abuse.

Parents might think such evidentiary requirements ridiculous. That they’re impossible to meet. Even without supporting records, if you present a compelling very detailed narrative (places, dates, times, situations, people), that isn’t contradicted by the other parent, then you might stand a chance. But you’ll usually need some corroboration in the face of disputed facts.

The courts have at least recognized that domestic violence committed against a spouse, particularly if committed in front of the children, puts children at risk of both psychological and physical harm. So you don’t need to establish abuse aimed directly at the children, so long as you link its effects to them.

If you’re the one facing allegations of abuse when seeking return of children, it’s important not only to contest the allegations but also to present your own evidence about what really went on in the relationship, again supported by documents where possible.

The judicial or administrative authority may also refuse to order return of a child under the Convention if it finds that the child objects to being returned and has attained an age and degree of maturity at which it is appropriate to take account of its views. There’s also an “intolerable situation” exception to return, but how “intolerable situation” is defined is unclear; it’s likely a fall back provision in case a court thinks return would lead to a shocking result and denial of such return can’t be based on other grounds. 

Thus as a parent opposing return could attempt to prove:

  • custody had already been given up;

  • removal had been consented to;

  • there is a “grave risk” of physical or psychological harm to the child;

  • the child would be in “ an intolerable situation” if returned.

The parent favouring return must be prepared to present evidence countering each of those points in a proactive way, and not merely be reactive to evolving evidence of the other parent.

6. The Fundamental Freedom Exception to Return

There’s another significant exception to return at Article 20 of the Convention that’s less commonly invoked:

The return of the child under the provisions of Article 12 may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.

This rather vague human rights reference could be difficult to trigger, as many countries with what could be termed more “traditional” views of family relations are not parties to the Convention, and those who are parties (plus almost all those who aren’t) have generally signed onto all the major United Nations international human rights conventions and declarations, meaning setting up contests between my human rights are better than your human rights could be difficult to establish. But it could be a useful exception to argue if you’re the one resisting return when used in combination with the Article 13 exception . 

7. The Dubious Differences of Being in Hague Versus Non-Hague Countries

The Hague Convention on the Civil Aspects of International Child Abduction remains one of the less universally ratified important international treaties. While in almost 40 years 99 countries have ratified the Convention, that means almost half of the world’s nations haven’t done so. It’s thus very important to know if you find yourself in or out of a Hague Convention jurisdiction.

If you’re not in one, the Convention won’t be useable against you to compel return. But you also won’t be able to use the Convention yourself to obtain the return of a child. And in theory a two way street is required for the Convention to operate. Meaning both the country to where the children have been taken, and the country demanding their return, must have ratified it in order for it to work. 

In reviewing any list of who’s in and who’s out, be aware that “ratified” means more than simply having signed. To ratify is to make in force in your jurisdiction, possibly by passing implementing domestic legislation.

Generally there’s a high level of ratification within the Americas, Europe, and East Asia, while Africa, South Asia, and West Asia have limited ratifications. It’s not possible to generalize about ratification propensity based on political system or majority religion, you simply need to check the online list to see if a country is in or out. 

Oddly enough, ratification may not make nearly as much difference to the end custody battle result as will the fundamental family legal system principles in operation in whatever country the children are located in. So in Canada, a judge might invoke the Hague Convention in coming to a particular decision, but the Convention might slam into the “best interests of the child” test that usually reigns supreme in domestic law.

Just because the Hague Convention doesn’t apply doesn’t mean there aren’t remedies for return in a local legal system. Some countries might even just use criminal process. They could put out an international arrest warrant for the abductor, or at least issue such a warrant within their own country so that the abductor could never return. They could also request criminal extradition of the abductor from the state to which s/he has fled. Extradition usually depends on mutual treaties, and there are many countries (especially the civil law jurisdictions) which won’t extradite their own nationals.  There are no guarantees here as to whether an arrest would ever be made. But it’s a risk. And if there is an arrest, the consequences would often be far more severe than mere family court proceedings ordering the return of a child. 

Generally, if you’re a parent demanding return, you’ll probably be better off demanding that from a Hague Convention ratified state. And if you’re a parent resisting return, you’ll probably be better off doing that from a non-ratified state. But because domestic law will still dominate where the children are found, you need especially to determine if you’re in a pro-mother state, pro-father state, or neutral state when it comes to parental rights. Thus a mother taking refuge in a non-Convention pro-father state might be at much greater risk of losing than if she was in a Convention state whose legal system favoured neither fathers nor mothers.

8. You Can Do Almost Anything With Consent

The most obvious solution to any international child custody battle is you can do almost anything with consent of the other parent. But although the answer is so obvious, I find in my practice it’s often ignored. I do get why, largely because if a relationship has so broken down that you’re splitting up, it might seem neither party is in a mood to agree to much of anything. Especially concerning children. 

From a legal perspective, family life is really a form of social contract. Yes, the state makes a few of the rules. But most of them are created by the partners through verbal agreements. And there’s nothing stopping you from committing family agreements to writing which many courts will later enforce as binding contracts.

9. Unilateral Self-Help Most Compels Return

The polar opposite of consent is the take the children in the middle of the night and attempt to smuggle them out of the country kind of action. Yes, it’s proactive. Yes, it might be seeking to avoids risks of continued domestic violence. Yes, it might even have a chance of working in the short-term. But it’s the longterm that counts. 

Unilateral self-help might so finally poison a difficult relationship between parents that any even vague chance of negotiating consent is forever broken. You could wind up in jail in your host country if you don’t make it across the border with the children. And you could face a civil court order back in your own country compelling the children’s return. You might even wind up stuck in legal limbo in a third country you were transiting through en route to your home. 

What can be said with certainly is unilateral self-help can put you at a horrible legal disadvantage in the long term, from which you might never recover. Judges all over the world like respect for the law. If they didn’t, they wouldn’t be judges, they’d find something else to do. So when the law appears to have been broken in whatever country, the judges (wherever they may be) are immediately going to look negatively on the person accused of breaking it. So I know it’s tempting. But don’t.

10. A Four Point Action Plan for Making the Convention Work For You

  • Get Consent. As ridiculous or impossible at that might sound depending on your personal situation, consent fixes everything. With consent, even if the consenter later changes his or her mind and starts contested court proceedings, you’ve got a legal defence. Consent should always be the starting point, because it often won’t be a viable option later.

  • Use the Local Court System. As much as you might have no confidence whatsoever in the local system, that’s generally what the Hague Convention and local law will require if you’ve stayed in a place long enough with your children to establish their residency. Make an ally out of that local system to the degree possible.

  • Retain a Local Lawyer. The place you need a lawyer is where your children are currently located. A lawyer back in your home country, or in the country you hope to travel to, can do little for you if your children are stuck somewhere else. So whether you’re seeking return of children, seeking to leave with children, or attempting to stay put with children, it’s the local lawyer who will do you most good. Seek out local counsel with international experience.

  • Don’t Resort to Self-Help. I know despite this principle, some will do so anyway. They’ll be inspired by the odd book or movie of stories of family reunification struggle and success in the face of adversity. But more likely you could wind up in jail. The law will only be your ally if you consistently portray yourself as as the good gal or guy; act against the law, and you’ll lose all hope of that ally.

The Government of Canada produced a great booklet in 2017 called International Child Abduction: A Guide for Left-Behind Parents, which cover a lot of detail on the non-legal steps parents can take to recover children, how they can attempt to engage government help, and also affirms: “In this situation, hiring a lawyer is a very good idea. In fact, you may need to hire a lawyer not only in the country where your child is retained but also in Canada.”

Gordon S. Campbell is an international family law lawyer who helps clients with transnational custody, support and property division challenges. He’s served with the Department of Justice Canada, Attorney General of Ontario and Global Affairs Canada. Learn more at www.nofearfamilylaw.com

Top 5 Terrible Things That Happen in Family Court & How to Avoid Them Happening to You

Losing custody of your child in 10 minutes. 

Losing more than 1/2 your pension in 15 minutes. 

Having $20,000 in costs awarded against you in 20 minutes. 

Having all your pleadings struck, being prohibited from participating further in your own court case and excluded from your own trial in 25 minutes. 

Being jailed for contempt of court in 30 minutes. 

I've seen it all happen in family court!

Listening to stories of family separation, custody and support proceedings dragging on for years might lull you into a false sense of security (or frustration) that each pre-trial court appearance is just marking time, where you’re not at much risk of anything bad happening to you and your family (other than losing the money you might be spending on lawyers) until an actual “trial” happens. The reality is strikingly different. 

The Speed at Which Family Law Orders Issue & Motions Explode

You risk being struck down in court if you don’t understand the scope of the Family Law Rules (at least in Ontario) in empowering judges to act decisively at any stages of proceedings. Family law is dramatically different from other types of litigation (like criminal or civil) for the lightening speed of its court appearances leading to temporary and even final orders, including its barrage of motions that can fly every whichway. 

A simple court appearance as innocuous as a case conference could lead to you losing child custody in 10 minutes. Seriously.

Don't believe me? Check out Rule 17(8)(b.1) of the Ontario Family Law Rules which empowers judges as follows: "At a case conference, settlement conference or trial management conference the judge may, if it is appropriate to do so ... if notice has been served, make a final order or any temporary order ..."

There is no limit to this power. It derives from a relatively recent amendment to the Family Law Rules that seeks to make Case Conferences more productive. It gives huge discretion to the sitting judge, who is may be in possession of very few facts and hears very little argument before making a snap decision. So long as your opponent has given you some sketchy advance written notice, then the sky's the limit (within the family law context) on what can be asked for (though of course you can also use the same strategy). 

Other types of litigious law that regularly go to court tend to be on sets of train tracks heading in only one direction. Some trains will run off the rails before they make it to the final judgment station. Some trains will get stalled on the tracks for extended periods of time. But mostly there is only one way forward. And after final judgment, if there are no appeals, a case is truly over. 

By contrast in family law, cases that are thought long since buried can come back to life with retroactive claims in motions to vary, and cases that are just starting their judicial journey may get hit with motion after cross-motion. 

So what's to be done? 

Here's my review of how to avoid the top five terrible things that happen in family court. 

1. Losing Child Custody in 10 Minutes

I used to think that child custody was only determined at family law trials, where there would be months and maybe even years of preparation, live witnesses would testify, maybe expert reports would be presented, and everyone would have lots of notice of what's at stake. While that is sometimes true for "Final" custody orders, it's often the "Temporary" custody orders that count most, as they're the ones that establish a "status quo." And the status quo can heavily drive what a trial judge will find later to be in the continuing best interests of the child. 

A Temporary order might be made at almost any court appearance. A presiding family judge has a huge amount of power to interfere with your personal family life, including ripping your child away from you. Even for a young child who has spent every day of every year of his or her life with you. I've seen it happen. 

So what's to be done?

You need to constantly be prepared to defend your position on what's in the best interests of the child. In Ontario, section 24 of the Children's Law Reform Act contains a highly useful list of the eight key factors legislators have decided to be core of defining the "best interests of the child," including:

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

(i) each person, including a parent or grandparent, 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) the plan proposed by each person applying for custody of or access to the child 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) any familial relationship between the child and each person who is a party to the application.

You need to be constantly on guard at every court hearing to defend why you should maintain your custody or access in its current state, with reference to the above factors.

You can seek to appeal really bad Temporary custody outcomes, however in Ontario you’ll need to: (1) bring a motion for leave (permission) to appeal to a three judge panel of the Divisional Court; (2) you only have 15 days from the date of the order you object to to serve that motion; (3) you’ll need to seek an interim emergency stay pending appeal from a single judge of the Divisional Court in order to stop the new custody regime being implemented pending your motion for leave to appeal. 

All of this will take time. And money. Far better (and cheaper) to try to stop the change of custody decision in the first place, before it happens, before the Case Conference, Settlement Conference, or Motions judge. 

2. Losing More Than Half Your Pension in 15 Minutes

Pension division calculations, and financial gymnastics in family law in general, remain tricky things. While we might like to hope most judges are great at math, in fact many of them might have gone to law school because their math marks sucked (mine weren't so great for calculus). Plus, summarizing and analysing more complex family law numbers might take expert accountant knowledge. 

It's therefore not surprising that judges can screw up math. And other than for child custody, family law is almost entirely about math.

So even if everyone in a family law courtroom understands the basic principles of how things should be split upon relationship breakdown, that doesn't mean that they'll apply those principles correctly. You might find a judge making a $150,000 math error against you. And then discover it's very difficult to change the judge's mind once convinced that s/he is right and you are wrong (particularly if your ex-spouse is cheering on the fact that s/he is now $150,000 richer). 

So what's to be done?

Employ experts (like accountants, pension specialists and actuaries) to ensure your math is bullet proof. The judge might not believe your math. The judge might not even believe your lawyer's math. But the judge will usually accept that experts got it right. And if the other side still wants to fight about the numbers, they'll usually need to produce their own experts, who might even side with your experts at the end of the day.

3. Having $20,000 in Costs Awarded Against You in 20 Minutes

Some jurisdictions like Quebec make litigants bear their own costs, because it arguably increases access to justice. But Ontario takes the approach that loser pays, and winner gets paid, which Ontario says is its version of access to justice (even though you might find it impossible to collect the costs).

The idea in Ontario is that the risk of costs awards will deter those with crappy cases from attempting to take them to trial, since they will get punished through costs if they lose. The idea is to encourage all sides in a dispute to make reasonable settlement offers to each other, as having a reasonable settlement offer refused may get you enhanced costs, even if you "lost" the case. 

But I've seen some "little" family motions lead to $20,000 (or more) in costs awards against the loser, which are far more punitive that the subject of the motion itself. 

So what's to be done? 

Ensure you are strategic in making a settlement offer prior to any motion by or against you. You need to demonstrate to the court that you're the reasonable one, so that if you unfortunately do lose the motion, you minimize your costs exposure. Very outrageous costs awards can also be appealed to a higher court. 

4. Having all Your Pleadings Struck, being Prohibited from Participating Further in your Own Court Case, and Being Excluded from Your Own Trial in 25 minutes

Think you always have a right to be present at and participate in your own trial? Think again!

While that fanciful notion applies strongly in the criminal law context, in family law if a judge thinks you haven't complied fully with past court orders (as in 100% compliance, not even 99%) s/he can "strike" all your pleadings (meaning your claim or reply), and later even proceed to hold a trial without you being present. And yes, that can lead to horrible outcomes on custody, financial calculations, and costs, because there is only one side there for the argument. 

The striking of pleadings leads to surreal Kafkaesque situations, where a litigant is actually present in court, wanting to participate, but is legally prevented from doing so. The pleadings can’t be refiled, because they’ve been struck. But the litigant is permitted to remain in the courtroom, subject to something of a gag order.

So what’s to be done?

Do everything you possibly can to avoid your pleadings being struck. Meaning, file any replies within the court ordered timelines, produce all documents and information you are required to produce, and bring a timely motion to extend timelines for anything court ordered that you’re finding it impossible to comply with (like for obtaining documents not within your control) BEFORE the next court date when you risk a striking of pleadings. Or at the very lease, make your motion to extend timelines of compliance returnable on the next court date already scheduled for your case. 

If your pleadings do get struck, immediately launch an appeal as that striking will be a Final order against you. You’ll have a short timeframe within which to serve and file your appeal. 

5. Being Jailed for Contempt of Court in 30 Minutes

Contempt of court motions are extremely rare, except - of course - in the family law world! Contempt is a quasi-criminal offence, that requires proof beyond a reasonable doubt. It also usually requires that the person accused of contempt - even if convicted - be given a chance to “purge” his or her contempt prior to sentencing. 

Contempt of court motions have become the cattle prod of family law, where parties constantly zap each other over non-compliance issues. Even where the source of dispute  over compliance might be minor. And there might not in reality even be any non-compliance. 

It’s still fairly rare to go to jail for contempt of court. But it happens. A motions judge hearing a family contempt motion has a lot of discretion. “Fines” tend to be the more common punishment.

But if there have been repeated prior findings of contempt, a judge might without much warning decide to up the ante by imposing custody on a party. Even though there is no “criminal” charge. And you haven’t had the benefit of the months or years of a criminal proceeding process involving disclosure, negotiations, and trial preparation, only after which could there be a conviction and sentencing leading to custody (which rarely happens except for the most serious of offences). 

So what’s to be done? 

Be constantly vigilant to guard and defend against contempt motions. Understand the contempt motions process (preferably with the aid of a lawyer), and use that understanding to restrain the trial judge from making rash findings that could lead to jail.

Stress the “proof beyond a reasonable doubt” standard. Stress that credible, relevant evidence is needed. Stress that there must be proof of an intentional rather than just accidental breach of a court order. Stress that any sentencing hearing should be adjourned for the purging of contempt. Stress that jail is truly a last resort. 

Thinking of every day in court for family law as being like a mini-trial, where anything could happen, and preparing accordingly, will best protect you from the top five terrible things that happen in family court. 

Gordon S. Campbell practices family law throughout Ontario. He especially litigates high conflict cases, and undertakes family appellate work in the Divisional Court & Court of Appeal. 

Le droit de garde et d’accès pour les grands-parents : trois erreurs à ne pas commettre

Le rôle des grands-parents dans la vie des petits-enfants

Les grands-parents peuvent jouer un rôle essentiel dans la vie d’un enfant et soutenir les parents dans l’éducation de ce dernier. Beaucoup de grands-parents offrent de s’occuper de leurs petits-enfants sans rémunération et prennent le temps de faire des activités avec ceux-ci. De plus, les grands-parents peuvent représenter un point de référence culturel pour que les petits-enfants comprennent mieux l’histoire de leur famille. Par ailleurs, certains grands-parents contribuent aux dépenses financières des parents pour offrir de meilleurs opportunités éducatives, religieuses ou sociales aux enfants, ce qui finit par aider l’enfant à s’épanouir.

Les éléments pris en compte pour obtenir la garde ou l’accès aux petits-enfants

Au cours de l’histoire du droit de l’enfance, deux tendances se sont développées : d’un côté, les décisions en faveur de l’autonomie parentale, de l’autre côté, les décisions favorisant l’intégration des grands-parents dans la vie des enfants. En Ontario, depuis 2016, la Loi portant réforme du droit de l’enfance autorise de manière explicite les grands-parents de réclamer la garde et l’accès de leurs petits-enfants.

Lorsque les grands-parents présentent une requête pour avoir des droits de garde ou d’accès à leurs petits-enfants, les tribunaux prennent en considération les facteurs suivants :

  • l’amour, l’affection et les liens affectifs qui existent entre l’enfant et les grands-parents
  • le point de vue et les préférences de l’enfant, dans la mesure où il est raisonnablement possible de les déterminer
  • la durée de la période pendant laquelle l’enfant a vécu dans un foyer stable
  • la capacité et la volonté des grands-parents de donner des conseils à l’enfant, de s’occuper de son éducation, de lui fournir les objets de première nécessité et de satisfaire ses besoins particuliers
  • le projet des grands-parents relatifs aux soins et à l’éducation de l’enfant
  • le caractère permanent et stable de la cellule familiale où l’on propose de placer l’enfant
  • l’aptitude des grands-parents à agir en tant que parent et
  • les éventuels liens familiaux entre l’enfant et les grands-parents

Malgré l’évolution du droit, les tribunaux continuent souvent à privilégier le droit d’accès des parents par rapport à ceux des grands-parents. Cela dit, en plus d’analyser la relation des grands-parents avec l’enfant, les tribunaux regarderont aussi si les parents ont décidé de nier l’accès aux grands-parents de manière arbitraire. Pour que leurs droits d’accès ne soient pas réduits ou supprimés, les grands-parents doivent éviter de commettre les trois erreurs suivantes.

1. Les grands-parents ne doivent pas remplacer le rôle des parents

En aucun cas les grands-parents doivent usurper le rôle du parent. Même si les parents souffrent de difficultés financières, psychologiques ou émotionnelles, le rôle des grands-parents n’est jamais de venir prendre la place des parents pour éduquer et élever les enfants. Bien sûr, les grands-parents sont toujours bienvenus pour assister dans le développement de leurs petits-enfants. Cependant, l’intervention des grands-parents dans la vie des petits-enfants doit être limitée et doit être approuvée par les parents.

Imposer un régime alimentaire ou une religion quelconque à l’enfant ou encore, inscrire un enfant à une activité ou un établissement scolaire spécifique sans consulter les parents sont des exemples de comportement qui seront réprimandés par les tribunaux judiciaires.

2. Les grands-parents ne doivent pas adopter une attitude hostile envers les parents

Bien que la législation ontarienne prévoie que les tribunaux doivent prendre en considération les droits des grands-parents lorsque ceux-ci présentent une demande d’accès aux petits-enfants, le droit d’accès aux petits-enfants n’est jamais automatique. Ainsi, il est important pour les grands-parents de garder une conduite qui est raisonnable envers les deux parents, notamment si les deux parents se séparent.

Parfois, des tensions peuvent se bâtir entre les grands-parents et le parent qui a la garde des petits-enfants, surtout si ce parent n’est pas leur enfant. Lorsque les grands-parents adoptent une attitude hostile envers le parent qui a la garde de l’enfant, ils réduisent leurs chances d’avoir gain de cause en cour. Souvent, les tribunaux préfèreront éviter de mettre de l’huile sur le feu en obligeant le parent en question d’autoriser l’accès de l’enfant aux grands-parents.

3. Les grands-parents ne doivent pas ignorer les petits-enfants

Pour maximiser le temps d’accès avec leurs petits-enfants, les grands-parents doivent s’assurer de bâtir une bonne relation avec l’enfant dès sa naissance. Dans les cas où l’enfant ne connaît presque pas ses grands-parents, un tribunal pourrait décider qu’il n’est pas forcément dans le meilleur intérêt de l’enfant de donner des droits d’accès aux grands-parents.

Il incombe aux grands-parents bâtir une relation positive avec l’enfant et ses parents. Visiter l’enfant de temps à autre est insuffisant pour créer ce type de relation. Les grands-parents doivent créer des liens affectifs réels et participer de manière très active dans la vie de leurs petits-enfants. De façon générale, les tribunaux sont prêts à accorder des droits d’accès aux grands-parents lorsque l’enfant a vécu chez eux ou lorsqu’il a passé une période considérable avec eux peu de temps avant les procédures judiciaires.

Avant de présenter une requête devant les tribunaux, il peut être judicieux de retenir les services d’un avocat pour connaître ses droits et ses obligations par rapport aux petits-enfants.

Karen Kernisant est avocate à Aubry Campbell MacLean et pratique dans les domaines du droit de la famille, du contentieux civil et du droit criminel.

Should I Appeal My Negative Family Trial Court Judgment?

You often won't have a choice about going to Family Court at the trial level. Either you're the Applicant, petitioning the court for something (divorce, spousal support, child support, child custody), or you're the Respondent replying to an application for one of those things by your ex-partner.

Sometimes you'll be happy with the outcome of your family law case at the trial level. But unfortunately you'll often be dissatisfied, either because you didn't get everything you asked for, or because the other side got some or all of what it asked for.

Compared to a trial where you had to show up, you'll always have a choice over whether to appeal a negative family trial court judgment to a higher court (unless you're forced to respond to an appeal by the other party to a case). The questions you should be asking yourself in considering whether to appeal are:

1. how great of an impact will this negative judgment have on me and my family?

2. how long lasting will be that negative impact?

3. am I better off to just wait for a change of circumstances (in my own situation, or the other side's situation), and then reapply to the trial court to vary the negative judgement?

4. what are my prospects of success in an appeal?

5. which court do I appeal to, and what is the procedure?

6. do I need to hire a lawyer to do the appeal for me?

Answers to all of these questions are somewhat intertwined.


In terms of impact, a slightly too high (in your opinion) spousal support award against you would arguably have a much lesser impact than losing custody of your children to the other party.


The lasting effect of the impact relates to whether this is a final or interlocutory (temporary) family court order, though even temporary orders can become the status quo that is later difficult to change.


If you think circumstances will improve for you in the future (like you might be in a better psychological and financial position to care for your children), then you might want to just wait out a negative order and reapply to the court in six to twelve months citing change in circumstances.


As for prospects of success, while really only a lawyer can give you something of an accurate assessment of your case on appeal, you could consider for yourself where the "justice" of the matter appears to lie, and try your best to imagine how unjust to the outside objective observer the negative judgment in question would appear. I know it's tough to be objective about such things, so perhaps ask others what they think. No appellate court is going to care about you having to pay $550 per month in child support, when really you think the figure should have been $500. However, lots of courts might have sympathy for you losing complete custody of your children, when you had presented a viable parenting plan, and there are serious doubts about your ex-partner's ability to parent.

One reason you might stand a better chance on appeal than at trial is that you will often get three judges hearing your appeal, rather than the one judge at trial, thus maximizing the prospects of obtaining a reasonable, rational decision from at least two of them (majority rules). However, you should realize that appellate courts generally defer to trial court findings of fact, because it is only the trial courts who hear the live evidence.

Statistically, about 1 in 4 civil appeals succeed to some degree, and 1 in 3 criminal appeals. I couldn't find statistics specific to family appeals, but they probably fall into the 1 in 4 category, which isn't bad odds all things considered. 


In Ontario, interlocutory family appeals coming from the Superior Court of Justice go to the Divisional Court, NOT the Court of Appeal, and need prior leave to appeal. Final family law order appeals coming from the Superior Court of Justice go to the Court of Appeal, and might need leave depending on what is being appealed. Thus the which court do I appeal to question is very important, as you may have a very short time limitation in which to appeal, and don't want to be stuck in the wrong court after your time to appeal to the right court has expired.


As for whether you need a lawyer, the answer is probably. I'm very sensitive to the fact that unfortunately employing legal counsel throughout family law court proceedings can become prohibitively expense because of all the time (and thus lawyer billable hours) that family trial litigation can consume. By comparison, appeals are usually quicker and possibly less costly to pursue than trial family proceeding. But be aware that an appeal might only result in the matter being sent back to the trial judge for a new decision based on proper legal principles.

Appeals also involve a much more paper-based and technical process than family trials (because appeals are more about the law and trials are more about the facts), thus anyone trying to undertake a family appeal by her or himself needs to be familiar with the Rules of Court, how to conduct legal research, how to prepare a factum of argument and book of authorities, and then how to orally argue the case before the court. In theory, it's possible for a self-represented litigant to conduct a successful appeal, but you're going to have an uphill battle that from a legal argument perspective will be more challenging than the battle you fought before a trial family court.

Gordon S. Campbell practices family law throughout Ontario. He especially undertakes family law appeals at the Divisional Court and the Court of Appeal for Ontario. 


How do I Move With My Child After Separation or Divorce? Top 10 Factors that Drive Courts to Grant or Deny Parents Permission to Move with a Child

When courts were more focussed on parental “rights” rather than “best interests of the child,” it seemed they were more reluctant to let one parent move with a child such a distance away that regular access of the other parent would be logistically challenging. But more recently, it appears courts have had a reality check realizing that Canadians are more mobile than ever for work, study and family reasons, and that trapping both parents in one spot - often a spot they aren’t originally even from - until all their children are grown is simply not in the best interests of those children. 

Not surprisingly, the parent who doesn’t want to move often fights such moves by the other parent. Sometimes successfully. There is a significant rate of family court contested hearings on mobility issues because of the dramatic way that each parent will be impacted by a move of one of them away from the geographic spot of their split. 

You can generally break moves with children down into short, medium and long distance. The short moves - under 100 km - are really no brainers. Looking at the caselaw, courts will almost always agree that one parent can move that distance. It will lengthen the duration of access transitions, but not overly frustrate weekly transitions. So fighting a move like that might mostly get you hit with a large costs award.

Medium and longer distance moves are more controversial, but their court results will be factually specific. Courts have often authorized what I would called medium distance moves of 500 km or so, seeming to think that regular access is still possible even though it will be a bit of a hike. Moves across the continent or to a different continent become more challenging still, but courts have even regularly authorized those when deemed to be in children’s best interests. 

The Supreme Court of Canada's Take on Parental Moves with Children

Over 20 years ago, the Supreme Court of Canada in the seminal case of Gordon v. Goertz, [1996] 2 S.C.R. 27 found: "While a legal presumption in favour of the custodial parent must be rejected, the views of the custodial parent, who lives with the child and is charged with making decisions in its interest on a day-to-day basis, are entitled to great respect and the most serious consideration. The decision of the custodial parent to live and work where he or she chooses is likewise entitled to respect, barring an improper motive reflecting adversely on the custodial parent’s parenting ability.”

As courts are now drifting away from inflexible concepts like “custody” versus “access,” whether a move should be authorized in a truly shared parenting arrangement may be a more challenging question to resolve. But the same principles will apply regardless of the custodial arrangements: it’s all about the best interests of the children. 

It's Mostly About the Facts, Not the Law, So Present Compelling Hard Evidence of Best Interests

Like a lot of family law, whether a move is or is not approved by a court has a lot more to do with the weight of the presented evidence, than with some magical legal authorities. Best interests of the child start with maximum contact with both parents. So if that contact is going to be lessened with one parent - perhaps significantly lessened - there needs to be a significant counter weight of best evidence to show why there will be an overall net gain to best interests with a move that ultimately involves reduced frequency of contact with one parent. Uncertainty on the court's part as to whether or not a move is a good thing will likely result in preserving the status quo, and no move being approved. 

Although most "misconduct" is not supposed to count anymore in family law, that doesn't apply to breaches or agreements or court orders, so if one parent jumps the gun and moves anyway without consent or a court order, it might become a lot more difficult to get court approval after the fact.

How to Best Promote a Move With Your Children

1. Demonstrate there is a tangible change in circumstances since the agreement or order. This is an official precondition to a court considering a motion to change custody, unless you've only got an informal agreement which doesn't really count for court purposes. 

2. Demonstrate that the children will be economically much better off after the move, such as by better parental job prospects or reduced housing costs. Don’t be vague or speculative. Actually get a better job first that is conditional on being able to take the children, as difficult as such a conditional offer might be. Present written evidence of the job. Present written evidence of the type and cost of accommodation. Produce economic statistics from the region to which the move is proposed.

3. Demonstrate that the children will be educationally, physically and mentally better off after the move. Show proof of better schools, perhaps with specialized education programs. Show proof of specialized medical treatment programs. Especially show proof of extended family support in new location, like grandparents, uncles, aunts, cousins. Don’t be vague. Include letters from real people identifying the children in question, and their admissibility to these programs. 

4. Demonstrate that the other parent won't be economically disadvantaged by the move by offering to pay all costs of travel of either children or non-custodial parent for access visits.

5. Demonstrate that the principle of maximum parental contact will still be honoured to the greatest degree possible after the move through describing in detail electronic means and timing of remote access with children, plus generous in-person access which might include all summer holidays, and even every Christmas and March break forever. The courts are receptive to proposals that the parent staying have longer terms of uninterrupted access, even if access won’t be as frequent as prior to the move. Do the math, counting hours and days of access under the current regime, and contrasting that to the numbers under the proposed regime. Produce detailed calendars.  

How to Best Oppose a Move of Your Children

1. Assert there is no real change of circumstances since an agreement or order. The court will sometimes toss an entire motion to move on this basis. While it can be difficult to win on this argument alone, there is not really any downside to attempting to make it. 

2. Demonstrate how well the children are currently doing in their present environment. Be specific. Cite all the things they will be torn away from. Produce documentary proof. Produce contrary proof that those things won't be available in the new proposed home location. Demonstrate the speculativeness of the advantages cited in favour of the move: perhaps no job or housing has been secured yet, and perhaps an overly optimistic economic, educational and lifestyle view of the new location is being presented to the court by the parent seeking the move. 

3. Demonstrate the relative equality between the parents of current access/custody arrangements, and how lopsided that will become if the children move away with one parent. Courts will be more likely to approve a move for one parent already spending much more time with the children than the other parent. 

4. Demonstrate the lack of real ties of the children and either parent to the new proposed location, as compared to the current location. 

5. Demonstrate the great logistical difficulties presented by regular access between the old and new location, including the significant financial cost, tiring nature of travel for young children, time zone differences, that winter driving between locations is hazardous or that driving isn’t even possible because of distance. 

Even though parties might be able to represent themselves on minor changes to access or custody arrangements, like times or locations of pickup or drop off, or what school should be attended, the catastrophic consequences for one parent of winning or losing a geographic move motion means that you should always be considering retaining legal counsel to help you with it.

Such motions don't need to consume untold resources so long as you push them to a hearing date as quickly as possible, without too many preliminary case conference or settlement conference court appearances. Devoting lots of personal efforts to compiling and organizing a strong factual evidentiary record favouring or opposing a move will save you lots of money on a lawyer as a parent, as that will let the lawyer focus on the law part rather than the facts part of the court equation. 


Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com

How Much Does a Divorce Really Cost in Ontario? Top 5 Tips for Saving Yourself Lots of Money on a Family Lawyer

There are essentially two types of divorce in Ontario: the really cheap divorce, and the really expensive divorce. The distinction between the two is less obvious than it initially seems.

If you ask everyone up front what kind of divorce they would like, they’ll invariably tell you the really cheap divorce. But they’ll then proceed to take actions (or inaction) which lead down a path to the really expensive divorce.

Divorce is really cheap - relatively speaking - if you aren’t planning to fight with your spouse over the dissolution of your marriage. You agree on property division. You agree on spousal support (or lack thereof). You agree on child custody and support. You then commit those agreements to paper, file a few documents with the court, and within 12 moths of separation you’re done. Magic. Divorce. And very low legal fees. 

Divorce can become very expensive if you can’t agree on all of those things with your ex, and one or both of you decide to go to court to let a judge decide on what’s fair. The irony is that an experienced family lawyer may have already told you (or your spouse) what the likely outcome of going to court will be, but you (or your spouse) believe you can do better. 

Of course one of the two parties to a divorce may be very reasonable, and still wind up with an expensive divorce because the other spouse isn’t reasonable. So in essence each of you need to pick the cheap divorce route, or you may default to the expensive route. 

Family law is one of the simpler areas of law in that it’s relatively new and has lots of written modern legislation governing it, rather than old dusty laws whose meaning no one can figure out. Family law is mostly just based on fairness (like splitting most property acquired during the marriage 50-50 and perhaps paying spousal support if there are significant income inequities), and best interests of the child.

So what’s the range of “really cheap” to “really expensive?” On the low end, under $5000 for a separation agreement and divorce. You might find it even cheaper than that, but remember that all lawyers have to sell is time, so the less you pay, the less time a lawyer will be spending negotiating and drafting your agreement, and making sure every T is crossed and I is dotted.

On the high end, really expensive means somewhere between $25,000 and $250,000! Crazy, eh? I’m not saying that most court-based divorces get to the quarter million mark. But more do than you might think if there are pre-trial motions, possibly interlocutory appeals, a lengthy trial, and then an appeal of that trial result. 

You can do the math for yourself. Take your lawyer’s hourly rate. Multiply by eight or so to get a daily rate. 

Multiply that number by the likely number of trial days required for a fully contested trial on all issues. Then further add the number of pre-trial case conference and settlement conference half-days that are likely. Then add some days for possible pre-trial motions. And also perhaps add time for an interlocutory (temporary) order appeal. And maybe a final order appeal.

Then take all those court days with lawyer time costs, and multiply by two or three, as prep time for court - all those court forms, affidavits, factums of legal argument, case conference briefs, books of authorities, correspondence to opposing counsel and the court, settlement negotiations with opposing counsel, trial witness and other evidence preparation - will likely take at least twice as long (as sometimes three times as long) as any court days they are linked to. So bet on two to three days of prep for any court day.

There, you’ve now got your $25,000 to $250,000 figure. 

So what are the tips for saving yourself lots of money on a family lawyer?

1. Do Everything Humanly Possible to Keep Your Case Out of Court

While many divorcing spouses are focussed on the "big three" of property split, support, and custody, really it is the "big four" as legal costs to get to the optimal position on the big three is an equally important factor. 

Think you’re getting a bit of the short stick on custody conditions? Or on support? Or on property split? Ask your lawyer to take another shot at negotiations. Might only take another couple of hours of time. If that fails, think long and hard over whether court is worth it. 

Being told you’ll only see your child every second weekend, when you think alternating custody weeks 50-50 is fair, may be worth going to war over in court. But be sure you have the resources for that war. Not getting the used Buick - or perhaps the even newer Mercedes - you think you have the right to? Probably not worth it. 

2. Be Organized and Figure Out Your Bottom Line Before You Meet Your Lawyer

Figure out before you see a lawyer the details of what you believe to be fair on property division, support and custody. Don’t be vague, you need to be very, very specific. And bring lots of documents with you to your first lawyer meeting. Ideally, drop off those documents before the meeting, as that will make the first meeting more efficient. Boxes of documents wouldn’t overdo it. Lawyers are good at quickly scanning through reams of documents, but burn through through lots of time if they have to pull every small fact out of a client. 

Lawyers can quickly run up a bill if you are constantly being asked for new or missing documents. On your part, demand a required document list up front from the lawyer so you can pull everything together in one go. If you do wind up in court, documents will often be far more compelling proof than any oral testimony or sworn affidavit, because documents are independent evidence, often pre-dating the marital split. 

3. Don't Think It's a Good Idea to Initiate Litigation Just to Scare the Other Side

Attempting to bluff your way into a more favourable settlement by starting a family court action, without the resources or resolve to follow through on it, is like pulling out that .357 Magnum Revolver from your belt, with the safety off, just because you intend to waive it around a bit to scare someone. We all know where that leads. Same with going to court as a bluff.

4. If You Do Wind Up in Court, Race to the Finish Line as Fast as You Can

Time truly is money in the legal world. Three days in court costs 1/3 of nine days in court. So do your best to avoid multiple case conferences and lengthy trials. 

Some courts will try to trap you in the "never-ending case conference," in order to avoid you eating up court trial time. Don’t let the court do that to you. 

Push for a single settlement conference. Try to expedite any trial management conference. Try to do as much of the trial as possible on paper rather than through live witnesses unless credibility is a huge issue.

Ultimately it’s the court calling the procedural shots, but experienced lawyers know how to pick the right passage to shoot those court rapids, and not get hung up on the judicial rocks. 

5. Don’t Try to Do any of this Without a Lawyer’s Help 

Yes, I know lawyers are expensive. And I know my emphasis above on the relative simplicity of family law principles might even encourage you to believe that you can figure out the underlying theory. And you absolutely can.

But the problem is that you won’t be able to grasp the strategy and tactics required to get a good result in a timely manner before running through the process a few times. Lawyers often have the benefit of having had hundreds of clients they’ve run through the system. Doing it yourself, you would need to figure out how to get it right the first time. And that's just not possible. 

I’m often consulted on family law appeals to the Ontario’s Divisional Court or Court of Appeal (appeals are one of my “things”), by intelligent hard working people who tried to navigate the family court process themselves, often against a spouse who had a lawyer. The results can only be described as disastrous. Time and time again. The system shouldn’t work this way. I know that. But it does. 

Loss of child custody. Loss of $150,000 in family assets because of miscalculations on net family property. Ordered payments of spousal support when in fact support payments should have flowed the opposite way. I’ve seen all of that. 

I get that often these good people started out with lawyers, and dropped the lawyers for financial reasons, being left to soldier on by themselves. But when they came to me for an appeal, they were faced with much larger legal bills than they might have originally incurred in attempting to keep on their trial lawyers, or in hiring a trial lawyer in the first place. Everyone needs to be aware that the best shot you'll ever have at a fair result is at trial, not on appeal. 

So among your possibilities of getting legal help make sure your consider: (1) apply for legal aid, it never hurts to ask (though if you have a well paying job, you won’t get it); (2) budget for significant legal fees, and carefully assess your ability to borrow for those fees, as running out of money half way can be the worst scenario of all; (3) talk to lawyers who might be able to offer "unbundled" legal services, which sometimes includes acting as a “coach” - it’s a newer concept, and may produce mixed results at best if you’re forced to go to court by yourself armed only with a little bit of advice, but it's better than nothing; (4) carefully evaluate lawyers from the start of your case, so that you make an informed retainer choice, and just don’t grab anyone who might be available. You don’t want to wind up in the position of having paid a lawyer a lot of money to help you, and then have a falling out with that lawyer mid-case causing you to need to switch lawyers, and possibly being stuck in lawyer limbo for weeks or months while you try to find a replacement. 

Viewing each family law choice through the "really cheap divorce" lens is necessary in order to truly understand how much a divorce really costs in Ontario (or elsewhere). 


Gordon S. Campbell is a Family Law Barrister practicing throughout Ontario. Lean more at www.nofearfamilylaw.com


Thinking of Going to Family Court to Break Your Separation Negotiation Deadlock? Family Law Confidential Episode #5: What Pulling the Trigger on Litigation Really Means

You may have been embroiled in friendly or more likely not so friendly family separation settlement negotiations for weeks, months, or even years. You might be getting frustrated that no matter how much you try, or how much you concede, you still can’t come to an agreement with your former partner. Maybe you’ve agreed on money, but can’t agree on children. Or maybe its the opposite. Whatever the reason, you might be getting itchy to have someone put an end to the endless negotiations. 

I work exclusively as a Family Law Barrister, rather than as a Family Law Solicitor, so going to court for clients is definitely my thing. But I still caution them to fully understand what pulling the trigger on litigation really means prior to doing so. I tell my clients there are really only two kinds of family law cases: those that go to court, and those that don’t. There’s a dramatic difference between the two. So much difference that all the other factual variations between cases are inconsequential by comparison. 


Family cases not in court are usually relatively inexpensive (seriously), while those in court can get expensive very quickly because of the amount of lawyer time that can be burned through. How much more expensive? Probably by a factor of 5 to 10 times. And that’s just in the early stages working towards a trial, but not to run the actual trial itself if the issues are complex. For very complex cases, with lengthy trials, experts, and possibly appeals, your in-court costs could reach as high as 100 times greater than your out of court settlement costs. 

Yes, you read that correctly, 100 times. I know it’s a shocking figure. And it’s not driven by my being any more expensive than a similarly qualified Family Law Solicitor. It all comes down to time.

An efficiently negotiated and drafted out of court separation agreement might be completed in as little as ten hours of lawyer time, and that total could be spread over several weeks. Whereas with litigation, 10 hours only amount to one of the many days in court that might be necessary, including a little preparation for that day. The 100 times is an extreme worst case figure; most cases will be much less expensive, but you at least need to think about the 5 to 10 times number, and be prepared for escalating costs.

The best way to keep down your family court costs if you do decide to pull the litigation trigger is firstly to see court as a collaborative process with your lawyer, where you carefully organize your supporting documents, and precisely write down the factual chronological and pertinent details justifying what you want out of the process. Secondly, you need to constantly evaluate and reevaluate what winning means.

Litigation hopefully doesn’t mean going all the way to trial. You do need to be prepared emotionally and financially for that possibility, but even a trial that goes well does not ensure total victory; a trial judge might not give you all you want, and an overly favourable trial judgment might be appealed. So you need to look for breaks in the litigation freight train, where you might be able to get what you need without fighting out litigation to the bitter end. 


So long as your case is not in court, you won’t be at risk of being forced to pay the other side’s possibly considerable legal costs. In court, if you lose - which can even mean turning down a reasonable settlement offer, and at trial doing no better than that offer - you could get stuck with huge court costs of the other side, in addition to your own legal fees. 

Regardless of how just you may believe your cause, and how good your supporting evidence, there are no “sure things” in the litigation world. My job is to maximize your chances of an optimal outcome, based on the material I have to work with. Any lawyer who tells you your case is a sure thing is either lying to you, or hasn’t done enough cases. So losing is always possible, and getting hit with legal costs is a possible consequence of losing. In the worst cases, I’ve seen Family Court costs awards exceed $200,000 - truly financially ruinous territory. 

But there are ways to protect yourself from costs, like by making your own pre-trial reasonable settlement offer that if refused, can lead to you getting your own enhanced costs or at least not be hit with costs. 


With cases not in court there are no strict deadlines, so you’ll have time to consider your position. In court, you be on a strict timetable: case conference, settlement conference, trial management conference, trial. That also means you’ll need to be able to continually fund that court process, or there could be a breakdown in the relationship between you and your lawyer. 

The court won’t wait for you to save up money for the next step. The court may give you a pause to see if something can be worked out through negotiation, but it won’t be a huge pause. So be prepared for being on court time once you start your case, as courts don’t want hosts of stalled cases clogging up their system. 


So my advice is always that going to court is the last step in a family law case, not the first step. Some think jumping right into court will give them more leverage over the other side. More likely, you’ll lose control of the proceeding as the other side retaliates and may make outrageous claims against you that were never made while the case stayed out of court. 

There’s no question that true deadlock in family settlement negotiations (or a complete refusal to negotiate) requires a court or other external dispute settlement process. Mediation or arbitration could also be worth considering. But any of those options can get expensive, so holding your fire as long as possible will best preserve your resources, and give you time to amass evidence that you can use to win in court.

This post should not discourage you from going to family court. Often, it's the only viable means to permanently settle your financial and child custody issues after the end of a spousal relationship. You just need to be aware of how different things will be in a court environment, rather than outside a court process. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Une soirée de plaisir, une vie de responsabilités : les conséquences juridiques de la fraude sexuelle sur l’obligation de payer une pension alimentaire

Travail, école, épicerie, ménage, cuisine et j’en passe : chacun a de quoi se sentir débordé par ses occupations quotidiennes. Il n’est donc pas étonnant que chacun cherche à se détendre pour oublier ses soucis, même si ce n’est que pour une nuit.

Après une longue semaine de travail, Alex[1] s’est rendu à son bar préféré. Arrivé là-bas, il a fait la rencontre de Sara. Après avoir consommé quelques verres, Alex et Sara ont quitté le bar et ont terminé leur soirée dans un endroit plus intime. Alex et Sara ont continué à se fréquenter pendant quelques semaines jusqu’au jour où Sara a annoncé à Alex qu’elle était enceinte. Pourtant Sara avait insisté qu’elle ne souhaitait pas avoir d’enfant et que, de toute façon, elle prenait la pilule contraceptive tous les jours. Alex, n’étant pas prêt à être père, s’est senti désemparé et trahi.


Quelles sont les obligations alimentaires des parents?

Le droit à la pension alimentaire est un droit qui appartient à l’enfant. Les circonstances dans lesquelles un enfant naît n’a aucune incidence sur le droit de recevoir des aliments. Dans la mesure où les moyens de contraception s’avèrent inefficaces, ils n’éteignent pas l’obligation du parent de pourvoir à son enfant par voie de pension alimentaire. Cette obligation existe même si un des deux partenaires ment intentionnellement à l’autre relativement à son utilisation de moyens de contraception, le désir d’avoir un enfant ou la possibilité de féconder.


Quel est l’impact des obligations alimentaires sur les parents?

L’obligation de payer une pension alimentaire à l’enfant peut être perçu par certains parents comme un fardeau, notamment lorsque l’enfant est le résultat d’une grossesse non désirée. Cela dit, l’impact de la naissance de l’enfant sur le style de vie, la carrière et le revenu du payeur n’ont aucune incidence sur le montant à payer.

Comment calcule-t-on le montant de la pension alimentaire à payer?

Le montant de la pension alimentaire à payer varie en fonction de plusieurs éléments :

-          le nombre d’enfants

-          l’âge de l’enfant

-          le revenu des parents

En plus du montant de base de pension alimentaire, les parents ont l’obligation de contribuer aux dépenses suivantes :

-          les frais de garderie

-          les dépenses médicales et dentaires

-          les frais associés à l’éducation de l’enfant

-          le coût des activités parascolaires


L’importance de connaître ses droits et ses devoirs

Le devoir de payer une pension alimentaire juste et équitable En cas de doute, il peut être prudent de consulter un avocat pour connaître ses droits et ses devoirs relativement à l’obligation de payer une pension alimentaire à son enfant. Enfin, pour ceux et celles qui ne sont pas prêt à être parent, choisissez vos loisirs judicieusement.


Karen Kernisant est avocate à Aubry Campbell MacLean et pratique dans le domaine du droit de la famille, du droit de l’emploi et du contentieux civil. Pour de plus amples renseignements, prière de consulter le site Web suivant : www.acmlawfirm.ca


[1] Tous les noms ont été changés afin de protéger l’identité des parties affectées.  

Family Law Confidential Episode #4: Why You Need to Understand the Difference Between Negotiation, Facilitation, Mediation & Arbitration

Although much of my family law practice involves court work, there are many means short of full blown court proceedings which might help give the parties that little push they need to come to a final settlement of the dissolution of their family relationship. Negotiation, facilitation, mediation and arbitration all have their place on the autobahn of relationship wrap up, though some are used much more commonly than others. Personally, I use negotiation all the time, but rarely use facilitation, mediation or arbitration - though I know other family lawyers who regularly use some of those others with success.

What is Family Law Negotiation?

Regardless of whether you realize it or not, your entire relationship was likely a product of subtle negotiation. Thus it’s hardly surprising that negotiation is the primary tool needed to work out the transitional details when that relationship ends. If you’re keen on wrapping things up as quickly and painlessly as possible, some explicit negotiation - where each party is quite aware a negotiation is happening - is probably in order. 

Negotiation can be either “positional” or “interest based.” A future episode of Family Law Confidential will go over in greater detail the fine mechanics of each of the negotiation-facilitation-mediation-arbitration models. But for now, you need to know that positional means primarily parties staking out respective positions as a single apple (or whatever flavour you prefer) pie, where each will take slices out of the one pie, and perhaps hope to wind up with more than half the pie as a share. Whereas interest-based negotiation involves the parties focussing more on desired outcomes first, rather than the details of how they will get there. 

What is Family Law Facilitation? 

Facilitation involves a third-party, often a lawyer, working collaboratively with the two parties going through family change to come to a mutually acceptable resolution. “Collaborative Divorce” would likely fall within the category of facilitation, where a couple hire a single lawyer who does collaborative practice to facilitate an agreement, but also agree that if the collaboration fails each of them will hire different lawyers to fight it out in court in an adversarial process. For couples capable of reasonable communication, where domestic violence is not an issue, facilitation might be a good option. 

What is Family Law Mediation?

Mediation involves aspects of both negotiation and facilitation, but the dynamics are somewhat more adversarial. Each party usually has a lawyer, in addition to the mediator who works for both parties. Mediation could involve both parties in the same room, or might involve each party in different rooms, with the mediator doing shuttle diplomacy.

Mediation might most justified if the parties can’t even agree on the issues to be negotiated, or where the issues are so numerous and complex that help is needed to narrow down the true source of conflict and prioritize what should be settled. 

What is Family Law Arbitration?

While negotiation, facilitation and mediation are all relatively common in family law, arbitration is not, although arbitration is common enough in the commercial/business dispute world. That’s partly because commercial contracts sometimes contain mandatory arbitration clauses, whereas only families that are the product of cohabitation or marriage contracts might be subject to such a clause. But the parties in a family dissolution could agree to arbitration at any time. 

Arbitration has been around for a long time as supposedly a faster, cheaper, and simpler way to settle disputes. However, since parties using the court system get the court almost for free (they only need to pay their own lawyers and experts), whereas using an arbitrator means you have to pay all the arbitrator's fees yourself, as a result that arbitration might not always be cheaper than going to court. If one party laters decides to attack the arbitration process in court because of an unsatisfactory arbitration result, arbitration could in fact wind up being more expensive than court, even if a court ultimately upholds the arbitral award because the parties freely agreed to be bound by that result. 

So all family dissolutions will involve negotiation (formal or informal), some might involve facilitation, a few could do with mediation (especially if children are involved with potentially complex logistics), but arbitration will probably be quite rare. If all of negotiation, facilitation and mediation fail, you'll usually be stuck with a court-based family law process. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #3: Top 3 Features of a Great Separation Agreement

Only Under Half of Separations Go to Court

Despite all the apocalyptic family law litigation stories one hears in the media, only slightly under half of all separations involving children lead to court orders governing custody (http://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/stat2000/p4.html ), with 47.5 % going to court, and 52.5% not in court. That court figure moves up to the 51.8% level where the splitting couple is married (likely because they'll need court help anyway to grant a divorce), but it's likely couples without children go to court even less than 47.5% of the time (because property is the sole issue). Thus while I can't lay my hands on comprehensive stats applicable to all couple situations (children-no children-married-not married), it appears fair to conclude that the majority of splits are done without court help. 

This no court order form of family separation that applies to the majority of couples means that separation agreement completion may be the most important legal task of family dissolution. But what makes for a great separation agreement that will stand the test of time? And could you be better off just letting a court sort things out?

Family Law Costs are Mostly Driven by Court Action

It might be an overstatement to call those non-court separations "amicable" - though probably some of them are - but ultimately what will drive your family lawyer costs the most is whether or not you wind up in court. Really what you want is a carefully drafted separation agreement, overseen by an experienced family lawyer, that you can later rely upon as a binding contract between you and your former spouse governing the entire dissolution of your family relationship in every last legally important detail, most notably asset split arrangements, child care arrangements, and child and spousal support issues. 

Keep that split out of court, and your legal fees are guaranteed to be reasonable. Go to court, and legal fees will be a direct function of how nasty things get. Of course it takes two to be reasonable for this arrangement to work. But so long as both parties are weighing costs versus benefits of court action from the get go, rather than just wanton revenge, you'll be on the right track. 

Separation Agreements are Just Contracts, not Magical Scrolls

Three things make for a great separation agreement: (1) detail, (2) clarity, and (3) equity. Before I started law school, I used to think family law settlement agreements magical things, forged out of special secret family law rules known only to the anointed few. But in reality, while separation agreements may be special to the parties they govern, the applicable law isn't any more special than that involved in a car rental contract. 

That's right, family separation agreements are contracts plain and simple, but of a domestic nature. Really not much different than a marriage/pre-nup contract, except at the back end of the coupledom odyssey. 

Why You Really Need a Lawyer to Make a Separation Agreement Enforceable

To all those out there thinking of drafting separations agreements themselves, I agree it is possible, but I've never to date seen a self-rep agreement that will stand up in court. Ever.

So if you are just jotting down a few points on the back of a napkin kind of thing, and don't really expect to try to legally enforce what you are writing, then yes, you can do it yourself. But if the whole reason you're writing things down is because you later want to be able to whip out the agreement in case one of you becomes "forgetful" as to what your understanding really was, then you definitely need a lawyer.

1. Why You Need Detail in Your Separation Agreement

Relationships of anything more than the shortest duration accumulate a lot of baggage. Legally unwrapping your baggage entanglements can take quite a bit of contract language. Like 20 or 30 pages or more of language. 

You've got to reexamine every part of your pre-split life, and figure out how it will continue post-split. Because almost everything beyond the relationship itself will continue. Just in a different form. Although your relationship may be dead, you (and your spouse) certainly aren't dead. Usually. 

Because separation agreements may have enduring legal effect for decades to come, they often wind up requiring a lot more detail than a last will and testament. When you die, it might take a year or two to wrap up your estate. When your relationship dies, you might still be dealing with legal fallout 20 years later if your children were very young at the time of the split. 

So the detail in the separation agreement needs to cover all contingencies. If this, then that. What happens to pensions, to life insurance, to medical and dental coverage? What if the parents develop disagreements about religious upbringing of the children? Lawyers have clauses for all of that. 

2. Why You Need Clarity in Your Separation Agreement

Just because you've got detail, doesn't mean you've got clarity. You might have all sorts of clauses in a separation agreement that you're really proud of, but they might not all mesh together well. Or some of the clauses may be vague in their language. That kind of vagueness that you could drive the proverbial bulldozer through later if one party decides s/he wishes to test the enforceability of the agreement.

At worst, your separation agreement clauses may contradict each other, and the agreement will become unenforceable. This isn't just a drafting tip to self-reps, lawyers can run into this problem as well. If Parliament, with all its resources, can make serious legislative drafting errors that no one picks up on until a law actually comes into force, lawyers can easily mess up trading clauses back and forth in frenzied negotiation. 

Pro tip: carefully read over the final draft of your separation agreement, even if your lawyer has told you it's fine. If something makes no sense to you, force your lawyer to explain it. It might make no sense to him either. Anything can be easily fixed before you sign. After you sign, it can become a huge hassle to set right.

3. Why You Need Equity in Your Separation Agreement

Even if you've got the detail and the clarity you need in your separation agreement, you're still going to need some equity if you want both parties to respect it in the future. It doesn't matter if one or both of you are willing to give away the farm so to speak at the time of its negotiation. I've seen many cases where bitterness only sets in later, and one party then proceeds to court - often successfully and at great expense to both ex-spouses - to overturn the earlier separation agreement. 

In short, if the agreement results in someone getting the shaft, it's going to be no better than an agreement which lacks detail or clarity. You might feel good about it immediately after signing - even if you're the one with the short end of the stick - because "it's over." But momentarily feeling good, and living with the results for decades to come, are different things. 

To be sure, equity does not mean "equal." One of you might be getting more of some things and less of other things. A negotiated dissolution of a relationship will always result in trade offs. And might even lead to somewhat an an imbalance in the resulting separation agreement.

But there is a point beyond which imbalance will slide into legally indefensible. And even if defensible, do you really want to be in court constantly trying to enforce the agreement against the other party, who will probably respond with a motion to change due to differing circumstance, potentially pulling you both into the family law apocalyptic vortex you were both trying to avoid in the first place?


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #2: Top 4 Legal Things to Immediately Sort Out Once You Have Split from Your Spouse

Actually taking the split plunge may mean that you've got a whole lot more on your mind than legal issues. Things like how to pay the rent. Or feed your children. But right up there on the greatest hits list need to be a few legal must dos that should be taken care of immediately after the split.


While separating your all debt from your spouse is often not so simple to accomplish, you should nonetheless take immediate steps to separate all the debt you can. Otherwise, you risk being saddled with post-separation debt accumulation by your spouse that, while theoretically speaking in a family court context sometimes might not be your problem, practically you are stuck with because you signed payment agreements with banks and credit card companies putting you on the hook. Separating credit cards, lines of card, mortgages, and periodic payment subscriptions are the top priorities. 

So for any credit card with a zero balance that is in your name, consider cancelling the card. That way secondary card holders will also be cancelled, and you won't have to worry about who has access to your card number. Where a credit card is carrying a balance, try to find some way to pay it off (like with another loan). If you can't pay it off, consider at least cancelling all secondary card holders if you are the primary card holder. 

Don't take excuses from the credit card companies that it can't be done. There will almost always be a primary and secondary card holder. Primary card holders should be able to cancel and entire account, and secondary card holders should be able to relinquish their cards.

If the card issuer gives you hassles about cancelling a card, write a firm letter disavowing all further responsibility for expenses you don't personally incur. It won't be a magic bullet, but it may offer some protection. Even if you've only got a secondary card, you should still get rid of it to better disentangle your finances.

Separating mortgage debt would also be nice, but might not happen until a house is sold. However, if you have a line of credit that is secured to your house and is not maxed out, make sure you write to the issuer of that line that you disavow future advances made solely by your spouse, and that you want it frozen at its current level. This likewise might not always work, but it will again provide at least some protection. 


Your joint banks accounts held with your spouse may be where employment or other income is regularly deposited. Immediately open new accounts in your name only, preferably at a different financial institution so that no one can later claim confusion about who had authority over your accounts. As it may take a bit of time to have your payments start being deposited at the new institution, it's imperative that you act on this quickly. 

Usually automobiles or other movable property will only be registered in one of your names, so transfer to the other spouse will need to await final settlement. But real estate will often be registered in both names. If so, you may again have to await a final settlement to have it transferred into or out of your name. But be aware that an Application for Partition and Sale can be brought in Ontario outside of the context of the Divorce Act, so that if a comprehensive family law separation agreement (or court proceeding family law trial) is proving elusive, you aren't stuck with real estate hanging in limbo for years. You can bring a relatively straight forward "application" (as opposed to a more complex "action") to sell the property, and just because you are a co-owner doesn't mean you can't bid on the property, 


Other than debts and assets, children are usually the most immediate issue to deal with after a split. They will range from not contentious at all to a truly toxic issue of high conflict potentially engaging repeated police involvement.

Taking the initiative to propose interim child care measures to your spouse is likely the best policy to deescalate conflict. While this might seem an obvious move, my experience as a family lawyer tells me that often these conversations are very difficult to engage in immediately post-separation, but you could at least explain what you are proposing as child care arrangements by email or letter even if you aren't on direct speaking terms with your spouse.

I get that the instinct or reality may be to flee with your children for your own or their protection. There could be situations justifying that. But because "shared custody" is now considered to be the norm for best interests of the child, you'll need solid evidence to justify such action.

Otherwise, at best you might be accused of contempt of court, and at worse of the offence of child abduction. As painful as it might be, just because your spouse has been violent in the relationship to you does not necessarily mean that a risk to the children will be presumed - although Children's Aid Society (CAS) and Office of the Children's Lawyer (OCL) involvement (using the Ontario terms) might be in order. 

The spectrum of interim child custody arrangements include: 

  1. shared custody where each party has at most a 60-40 split of time with the children, leading to no child support being payable, but special and extraordinary expenses (like the dentist or soccer camp) being split according to relative incomes of the parents; 
  2. one parent having sole custody, with the other parent have regular "access," where the access parent will be required to pay child support on an interim basis according to the "table" amount based on income;
  3. one party have no or limited supervised access to the children - where there are serious concerns about threats to the children's wellbeing, including psychological wellbeing through parental alienation. 

There are lots of variations to these arrangements, but these three categories represent the fundamentals. Be aware that the first option of shared custody will be the norm, unless both parents consent, or get a court order. The caselaw is very consistent that maximum contact with both parents is in a child's best interests, absent exception circumstances. 


Regardless of how many things you might simultaneously need to be dealing with after a split, feeding yourself and your children really need to be at the top of the list. Where both parents have relatively high and relatively equal incomes, this might not be such a top priority as arrears in child support by a non-custodial parent can often be dealt with later in final terms of settlement (like through one party giving more or fewer equalization assets to compensate for a lack of earlier owing support). 

But when you can't pay the rent, securing a means of support needs to be the top priority. If you're the spouse who sacrificed a career to stay home with the children, you're going to need interim spousal support, even if you share custody to such a degree that neither of you pays child support. Unfortunately spousal support has turned into the battleground that child support used to be until the child support table guidelines turned the calculation of child support into much more of a mathematical than legal exercise. 

Sorting out these top four legal things to deal with immediately upon separating from your spouse may not require going to court, but they should involve a lawyer. In Ontario, Legal Aid Ontario runs Family Law Information Centres (FLIC) to help those who financially qualify, and also provides private lawyer certificates to family law counsel to help you; I'd say at least half of Ontario family lawyers take these certificates (we certainly do), though sometimes services may be more limited than those available to "cash" clients (for instance, legal aid usually won't fund travel, so we're more limited in the geography within which we can operate). 

And even for those who need to pay for lawyers themselves, I always say that legal "advice" can be great value in preventative medicine. It's the going to court that can get costly, and thus you should do whatever you can to avoid that court journey if at all possible (including paying a lawyer for advice and negotiation services). 

There's lots of mythology around family law. Don't become lost in the Maze of Minos. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Family Law Confidential Episode #1: Things to Sort Out When Thinking About Splitting From Your Spouse

Many people think hard for months or years about splitting from a spouse before actually doing so. They weigh the emotional pros and personal cons of the split. How it might affect their children. How it might affect the family financially. But they often don’t speak to a lawyer prior to the split. 

I get that. I understand that you might not know it's going to happen until it happens. That you’ve got things on your mind. And frankly, advance legal advice won’t always prevent all the difficulties that might flow from a split with your significant other. 

But what I the family lawyers would ask you to consider prior to your split are a few factual details that will make your legal life a whole lot easier after the fact. These are things that while they can be dealt with after your split, can become a whole lot more difficult to resolve depending on what you’ve done or not done. 

1. Pull Together All Your Documents

Lawyers (and courts) love paper. People (unfortunately) lie all the time about things, but documents usually can be trusted.

Sure, people occasionally forge documents, but in my 23 years of lawyering, I’ve found it to be pretty rare. So if you’re going to need to prove certain things about your family and finances after your split, documents are the best way to do that. 

After the split, you might lose access to documents, which is why you should gather together what you can before any change. Of course if you’re not the one initiating the split, you might be playing catch up, but just because your spouse has told you about a split doesn’t mean that your lives have necessarily significantly diverged yet. That might come in the following days or weeks. So act now on the documents, before it becomes difficult.

You need to gather documents primarily from four areas of your life:

  • financial (bank account, credit card, and investment statements);
  • taxes (income tax returns and notices of assessment for last 3 years);
  • property ownership and encumbrances (house title, car title, mortgage, liens);
  • children’s records from school, immunization, passport and other records.

Electronic or paper copies are fine. You don’t need originals, photocopies are fine (though originals are nice to have). Having these documents in hand will make both your and your lawyer’s life a lot easier (and less expensive) in the future.

2. Figure Out Where You Are Going to Live  

In the good old days, which really weren’t so good, one party would move out, and that would be that. Now, couples conduct wars of attrition, with each spouse remaining in the family home as long as possible so as to not lose possession of it. It's true that if you move out, your spouse might change the locks on you, and it will be difficult to get back in short of having a court order. 

The key to determine here is do you want to keep the house, would your spouse want it, or would you both need to sell and find a new place?. Secondly, what would each of you do in the interim for accommodation?

I know you might not come to any firm conclusions about where to live prior to the official split, but since the family home is for many couples their primary asset, it’s important to start working out these details. 

3. Figure Out Logistical Arrangements for Children

The default is now shared custody. Even if that isn’t the end result of your family change, you’ll still need to determine what you believe to be in the children’s best interests in the short term concerning school, care, and housing. While finalizing children’s interim arrangements might take some negotiation with your spouse, you should figure out your position in advance. 

4. Figure Out Your Source of Interim Income

If you’ve personally got sufficient employment income to keep you and your family supported in the short term, you may not need to worry about this one. But if you don’t, then you’ll need to figure something out. It could be using savings, it could be taking on debt. Whatever it is, it may become more difficult to execute such a plan after a split.

You are not well advised to strip all family assets, as that won’t play out well before a court who will later make a ruling on your case. But you still need an interim financial game plan. 

The reason these four factors are so important to figure out in advance of a split, if possible, is to avoid having to rush to court to deal with interim issues. I always advise my clients that family lawyers are a bargain if a settlement agreement can be kept out of court, but as soon as court proceedings commence resources start to be depleted due to all the legal pleading drafting, letter writing, and court appearance time that is required. 

If you've secured and figured documentary disclosure, accommodation, arrangements for children, and interim support all in advance of a split, then it's unlikely you'll need to rush to court to demand help with any of those items. But if accommodation, children and support all remain uncertain points of great contention, then court might be your only option - which is where at least having a treasure trove of documents will serve you and your lawyer well. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 


The 2 Core Family Law Principles Everyone with a Family Needs to Know About

A lot of the law is based on obscure legal principles, whose origins date back hundreds and sometimes thousands of years. Criminal law and business law can be like that. 

But family law as we know it has only really existed in Canada since 1968’s amendment of the Divorce Act permitting no fault divorce after three years of separation, reduced to a one year waiting period in 1986. 

Although family law court litigation remains mired in procedural technicalities - despite repeated attempts to simply it - the law upon which such litigation is based can be simplified to two core principles. Embracing these principles enables you to predict with some accuracy the results of all disputed family matters! Seriously. 

The principles are: (1) fairness, and (2) best interests of the child. That’s it. This is not an oversimplification. 

On many levels, so called “family law” is barely even “law.” Rather, it's more social policy that happens to be administered by judges because no one can think of anyone better to entrust with it. There have been repeated calls to take family law out of the courts - even by some family judges - but to date other than the advent of mediation and collaborative family law which might work in less adversarial situations, no one has  come up with any alternatives that really work. 

What does fairness in the family law context mean? 

The principle of “fairness" is at the root of family law division of property calculations (mostly 50-50, with some notable exceptions), family law spousal support calculations (generally limited to the amount of time necessary to enable a spouse to be self-supporting, but could be lifetime for older spouses in long term relationships because of sacrifices presumed for relationship), and child support calculations (now tied directly to payor’s income through a prescribed formula, with “special and extraordinary expenses" like camp or dental care shared between spouses proportionate to relative incomes).

What do best interests of the child mean?

The "best interests of the child" principle is at the root of why the courts continually urge maximum contact with both parents, and support findings that it is the parents and not the children who should be making any sacrifices consequential to the breakdown of their relationship. Thus the courts support disrupting a child’s routine as little as possible notwithstanding parental preferences, and any established “status quo” is highly likely to be maintained by the courts, unless it is clearly not in the best interests of the child.

How does knowing these two core principles of family law help me? 

First, knowing enables you to understand that family lawyers aren’t black arts sorcerers capable of invoking ancient legal family law texts to achieve perverse, shocking and unpredictable family law results. Family law is not rife with obscure loopholes that let one spouse get or lose all the money and children. Who gets the money and children will be based on fairness and best interests of the child. 

Second, knowing enables you to predict with some certainly the ultimate outcome of family law proceedings, regardless of how much money and time you or your former spouse spend on lawyers and the court system. True, there are some outlier results. You could be lucky or unlucky enough to draw a particular judge who leans one way or the other on your facts, and you might have achieved a different result with a different judge. But appellate courts will always be hovering overhead, ready to overturn perverse results that don’t accord with normal conceptions of fairness and best interests of the child. 

Why you need evidence and legal advice to take advantage of the principles

Knowing something, and being able to implement that something, are not always the same thing. Knowing should give you confidence, and enable you to make rationale decisions based on likely results. But operationalizing knowledge of the family law world requires one and possibly two additional ingredients beyond the core principles

First, you need to know that in establishing what fairness and best interests of the child really mean practically on the ground, you need to amass evidence. Documents. Witnesses. Expert reports. 

Without evidence, family courts are left in a vacuum. And lopsided evidence, where one party produces almost all the evidence - usually not surprisingly evidence in that party’s favour - can lead to lopsided, unfair results. Results that really aren’t fair and aren’t in the best interests of the child if the real balanced truth had been known, but courts can only base their application of those two core principles on evidence, not on solely the argument and conjecture of the parties. 

Second, you need to realize the lawyers really are helpful in advancing these two core principles, largely because of all those procedural technicalities that lie in wait to trip you up. Family lawyer help that stays out of court can be very affordable. For those with the lowest incomes, government funded legal aid may be available - especially where children are involved. But even for those who already are in court, and who have to pay themselves, approaching your case as a collaborative effort with your lawyer, where you both carefully make strategic decisions that maximize the value of every dollar you spend is likely to lead to the best outcome, at the most reasonable cost. 

I do get that if you are up against someone utilizing scorched earth tactics in family court, with that person either being represented by a lawyer or acted as a self rep, your legal representation costs can become a major challenge. There, you might need to rely on what are sometimes called unbundled legal services, where a lawyer assists you behind the scenes, and you do some of the work yourself.

I’ve unfortunately seen some truly shocking, tragic results where one party has had a lawyer, and the other party is completely without any legal advice - despite those two most sensible core family law principles. It shouldn't be that way, but it is. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages, and is the founder of nofearfamilylaw.com. 

Is it Time to Abolish the Concept of Child "Custody" in Canada? How you can maximize contact with your children & Minimize Conflict in Achieving that contact

In 2014 the English legal system abolished the concept of "child custody orders" in favour of rather inelegantly titled "child arrangements orders." It likewise abolished the "custodial parent" term in favour of "parental responsibility." It's a whole lot harder to yell: "damn you, I'm going out to get ... a child arrangement order ... and take parental responsibility" in a threatening kind of way than if the word "custody" was used repeatedly in those threats. 

Who gets the kids has been a prime legal battleground throughout the history of divorce and separation, with highly variable results notwithstanding the "best interests of the child" test.  A full 37 years ago, Psychologist Mary Ann Watson in the journal Family Relations published an article entitled "Custody Alternatives: Defining the Best Interests of Children" which explained: "Until the 1920's Anglo-American law had no difficulty in resolving parental disputes concerning custody. It was presumed that custody should go to the fathers as head of the family. The mother was a legal non-entity. Then, as ideas about the crucial role of the mother in child rearing became more widely accepted, courts altered their views to a presumption that the child belonged with the mother. Thus, in more recent years, the custody of approximately 90% of children of divorced parents has been awarded to their mothers ... [but] there have been a growing number of parents who have been advocating a more balanced solution to the question of custody."

In more recent decades "shared custody" and "joint custody" have become in vogue, because of better understandings that the best interests of the child involve maximizing contact with both parents. But the persistence of the word "custody" might still engender conflict. Is it time to semantically clean the family law house in Canada? Should we stop talking about supposed winners (those who get "custody"), and losers (those who get something called "access"), and instead just talk about the end result of best interests of the child? 

What means Are Available for Arriving at a Child Arrangements Order?

There are four ways to determine how much time a child spends with each parent post-separation, and who makes which decisions concerning a child's life: by agreement of the parents Informally, in a Parenting Plan, in a Separation Agreement, or by Court Order. Choice of means to agree largely depends on the ability of parents to communicate and the need for future enforceability (the more formal the agreement, the more enforceable it will be). Negotiation, mediation and collaborative family law are all viable, less expensive, and potentially more effective alternative dispute resolution (ADR) processes to court-based processes.

What Does Best Interests of the Child Really Mean?

The federal Divorce Act at s. 16 considers the best interests of child to be “as determined by reference to the conditions, means, needs and other circumstances of the child.” Courts are prohibited from taking past conduct of a parent into account in determining child custody arrangements unless relevant to ability to parent. Sub-section 16(10) of the Divorce Act promotes maximum contact with each parent.

The Ontario Children’s Law Reform Act governs the best interests test when there are no divorce proceedings. That provincial Act is more explicit than the Divorce Act in defining “best interests” as including the child’s preferences, stability of environment, and abilities of parents.

Although courts used to rely quite a bit on experts in determining what "best interests" amounted to, increasingly judges are just using their own experience to make such determinations, which are guided by a lot of common sense, as foreign a concept as that might seem to a formal legal process. 

Are Courts keen to Make Family Assessment Orders?

While a court may order an Assessment of the needs of the child and ability and willingness of the parties, such assessments are time-consuming, expensive, intrusive and will not finally determine custody and access issues (which are left to the court to decide).

A court order may also be sought to involve the Office of the Children’s Lawyer, either to have a government-funded lawyer appointed to represent the interests of the child (unlikely if the children are very young and can’t express preferences), or to have a social worker assigned to conduct a Clinical Investigation which will be similar to a Custody and Access Assessment except be funded by the government. However the Office of the Children’s Lawyer can decline a file, which it often does. 

Don't count on a court being convinced it needs expert evidence to determine what best interests amount to. Instead, provide the court with the most detailed picture possible of what you belief the child's life should look like and why. 

Five Legal Lessons of Child arrangements

While it's hard to say whether people fall to fighting more over money or children when relationships break up, it's certain that disputes over children have the potential for lasting much longer and taking a much greater emotional toll than money fights. Among the prime legal lessons of child arrangements for separating parents who want to maximize contact and minimize conflict are:

  1. try to take an objective view of what others will perceive to be in the best interests of the children; 
  2. structure your proposed parenting plan around those best interests;
  3. don't take an extreme position that forces a court to be the final decision maker about those best interests, instead be proactive in attempting to agree on a plan that is acceptable to both parents;
  4. use every ADR tool available to retain some control over the form the final arragements will take and to limit your legal fees;
  5. it will be expensive, time consuming, and difficult to enforce every detail in a child parenting agreement through a court, so if you run into compliance difficulties consider returning to those ADR tools and use the courts as a last resort. 


Gordon S. Campbell helps family law clients throughout Ontario at negotiation, trial & appeal stages. Learn more at www.nofearfamily.com