Abduction of Children
It is unlawful to take a child out of Canada without obtaining the consent of each party to a parenting order. In most cases this will mean that where there are Court Orders about children, each parent will have to obtain the other parent's written consent before taking a child overseas. Where children are taken overseas without permission, or not returned to Canada after an agreed overseas visit, the provisions of Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention) may apply.
An affidavit is a written statement submitted to the Court in support of an application. It must be sworn or affirmed before an authorised person, such as a Commissioner of Oaths/ Notary Public/Justice of the Peace or lawyer.
Arbitration in Family Law matter
Arbitration is where a couple hires an independent decision maker – an 'arbitrator' - to decide their dispute. Arbitration is an alternative process to going to Family Court and having a Family Court Judge decide the dispute.
Best interests of the child
In making parenting Orders about children, the Family Court's paramount consideration is the best interests of children. In deciding what is in a child's best interest, the Family Court Judge is require to considered the following:
- the history of care of the child
- the child’s views and preferences
- the benefit to the child in developing relationships with both guardians
- the nature and strength of existing relationships
- any history of family violence
- any civil or criminal proceedings that may be relevant to the child’s safety or well being
Child support is the payment made for the financial support of children after parents separate. It is usually paid by one parent to the other parent. However, if another person is caring for the children they may be able to receive child support. In Canada, the Child Support is determined by the Federal Child Support Guidelines.
Child Support Agreements
Child Support Agreements are written agreements between parents detailing the child support which will be paid. They are used most often where parents want to have their own arrangements for child support, rather than having child support determined under the Federal Child Support Guidelines.
Cohabitation is the date on which 2 people begin living together as a couple on a genuine domestic basis. If a couple lives together for a period of time before marrying, the length of the relationship will be calculated from the date the couple started living together, rather than the date of marriage.
A Cohabitation Agreement is an Agreement which sets out how assets, liabilities and financial resources will be divided if a couple separates.
Collaborative Law is a new way of resolving family law disputes. The couple and their lawyers commit to resolving their issues through a series of meetings. The parties and their lawyers have to commit to resolving their matter by agreement, rather than going to the Family Court. If negotiations break down and a party wants to go to Court, both parties need to engage new lawyers.
Consent Orders are Court Orders made when the parties are in agreement. Many people are able to resolve parenting matters or property settlements by agreement and have Consent Orders entered in the Family Court.
Divorce is the process by which a marriage is legally ended. After a divorce, each person is free to remarry. Parties have to be separated for at least 12 months before they can request the Divorce Judgment, however, the process can be initiated soon after the separation. You do not need to be divorced before you have a property settlement or decide arrangements for children.
Ex parte hearing
An ex parte hearing is when the Court hears a matter without the other party being present. Generally, in family law, this only occurs in cases of urgency only.
The Family Court has jurisdiction to hear all family law matters including:
- Parenting issues ('child custody' and 'access')
- Property settlements for separated married couples and common law couples
- Spousal support/partner support
- Child support
Family law is the area of law which deals with:
- Arrangements for children after separation (custody and access)
- Division of property after separation (property settlements)
- Financial arrangements after separation (spousal/partner support)
- Child support
- Prenuptial agreements for couples who are marrying or already married (Financial Agreements)
- Cohabitation agreements
- Family violence and Emergency Protection Orders
Canada is a party to The Hague Convention on the Civil Aspects of International Child Abduction (the Abduction Convention). The Convention is an international treaty which provides for children to be returned if they have been wrongly removed from, or retained outside, their country of habitual residence.
Independent Children's Counsel / lawyer
An Independent Children's Counsel / Lawyer is a lawyer appointed by the Family Court Order to help the Court decide what is in the children's best interests. The Independent Children's Counsel / Lawyer ensures that the child(ren) or youth’s voice is heard.
Joint custody of children
Joint custody of children is when the parents have shared decision making powers with respect to the children.
Mediation in Family Law
Mediation is when a couple meets with an independent person to talk about the issues in dispute between them and try and reach an agreement. The mediator facilitates discussion between the parties, but does not provide advice or make decisions for them. It can also be a very useful way of reaching agreement about property and financial matters. Sometimes lawyers are present for mediations and sometimes just the parties and the mediator are present. It is best to obtain legal advice before going to Mediation so that you are aware of your rights and entitlements before you negotiate. Mediation can also be conducted with the parties in separate rooms if this is preferred. Under the Divorce Act and Family Law Act, the lawyers are obligated to inform the family clients about the option of mediation before any kind of legal proceedings can be commenced.
Parental responsibility means the duties, powers and responsibilities which parents have in relation to their children.
Parenting Orders are Court Orders which relate to arrangements for children. They can include arrangements about who children will live with, when children will spend time with a parent. Parenting Orders can also provide for one or both parents to have parental responsibility.
The Family Court can also make Parenting Orders about specific issues, such as where a child attends school, where changeover takes place and arrangements for parents to notify each other about medical and health issues concerning children. Parenting Orders can be made by agreement as Consent Orders, of if the parents cannot agree, the Court can decide the Parenting Orders.
A pre-nuptial agreement is an Agreement which sets out how assets, liabilities and financial resources will be divided when a couple separates
Relocation with child after separation
After separation, one parent may want to move with the children to another City, Province or even Country. The other parent may object to this on the basis that the relocation would make it difficult for the children to spend time with them or have an ongoing relationship with them. These can be difficult matters for parents to agree. If the Family Court is asked to decide whether the relocation should proceed, the Court will weigh up all options including the proposals of each parent and then decide what would be in the children's best interests.
If you are considering relocating or are concerned the other parent may be planning to relocate it is important that you obtain legal advice as soon as possible.
Separation under the same roof
A couple is separated under the same roof when their relationship has ended, but they continue to live together in the same house. It is not uncommon for people to live together in the same house for a short period after separation, while alternative accommodation arrangements are being made.
Sole custody of children
Sole custody of children is when one parent has the decision-making powers with respect of the children on an exclusive basis.
Spousal Support (in common law couples, the term used is “partner support”) is the financial support provided to the other spouse. You might have heard it referred to as 'alimony' in American television shows. Spousal support is not an automatic entitlement. Legal Advice must be sought before agreeing to any spousal support.
The trial is the final hearing of an application made in the Family Court. At the trial, the Court will usually hear evidence from the parties and the parties will usually be cross examined in the witness box. The Court considers all the information before it, including arguments or submissions from each party's lawyer and then makes a final decision. The Court sometimes reserves its judgment after a final hearing. This means that the judge takes some time to consider the decision after the trial and then delivers the decision at a later time.