Practice Areas

Call or Email Us Today

Call Us

(416) 972 - 0404

Domestic Divorce
and Family Law

Our areas of practice include the following. Please click on the area you are interested in for more information.

COMMON LAW RELATIONSHIPS
In common-law relationships, two people reside together in a marriage-like relationship but they are not married to each other.

Under most Ontario provincial laws, you are considered common-law spouses if:

⦁ You have been living together for 3 years, or

⦁ As soon as you have a child together no matter how short a time you have been living other.

Under most federal laws, you are considered common-law spouses once you have been living together for one year, whether or not you have a child together.

Some Family Law issues affecting common-law couples

⦁ Child Support: If you treat your common-law spouse’s child as your own member of the family you may be legally obligated to pay child support for the child when you and your spouse separate. This is the case, even if the child has biological or other parents who are providing him/her with support.

⦁ Custody or Access: Decisions relating to custody or access are made by the common law spouses on separation. If they cannot agree, the court makes these decisions based on the child’s best interests.

⦁ Property Division: Common law spouses do not have a legal right to claim a share of each other’s property. Only legally married couples automatically share the value of their marital properties when they separate. As a general rule, each common-law spouse owns what he/she brings into the relationship. In a common-law relationship, any property you bring into the relationship belongs to you.

Anything you acquire with your money during the relationship and hold in your name belongs to you. You should try to keep receipts and other proof of ownership. However, things you and your common-law spouse buy together during the relationship belong to you jointly. On separation, these would be divided.

Exceptions to the general rule that each common-law spouse owns what he/she brings in the relationship:

i. Where there is a cohabitation agreement. This agreement can indicate how the parties intend to arrange their finances or other aspects of their lives together or how they want to deal with their debts or assets when they separate; how their properties would be divided and what support would be paid etc.

ii. Where a common-law spouse has contributed time, money, or work that assists the other spouse to buy, maintain or improve the value of his/her property.

In such a case, the common-law spouse who owns the property can compensate the other spouse. If he/she refuses to compensate the other spouse, the other spouse can go to court to prove his/her contribution and the court will decided if he/she should have a share in the property and the amount of compensation. It is the contribution, not the common-law relationship that entitles the other spouse to a share in the property.

To speak with a common-law relationship lawyer, please call (416) 972-0404.

PATERNITY/PARENTAGE ISSUES

Toronto Paternity Lawyers

There is no distinction between children born in or out of wedlock. Ontario gives all children equal status and protection.

Sometimes a dispute arises as to whether a person is the natural parent of a child.

The parentage of a child can be established by bringing an application to the Provincial Court (Ontario Court of Justice) seeking a finding and a declaration of paternity.

Where paternity of a child is an issue, the court can make an order for blood tests to determine the parentage of a child. The results of blood tests (DNA) can be very persuasive in establishing paternity.

Without blood tests, the law makes certain presumptions to determine the parentage of a child.

Presumptions of Paternity

The law presumes that a male person is the father of a child under the following circumstances:

1)     The person is married to the child’s mother at the time of the birth of the child.

2)     The person was married to the mother of the child by a marriage that was terminated by death or judgment of nullity within 300 days before the birth of the child or by divorce where the decree nisi was granted within 300 days before the birth of the child.

3)     The person marries the mother of the child after the birth of the child and acknowledges that he is the natural father.

4)     The person was cohabiting with the mother of the child in a relationship of some permanence at the time of the birth of the child or the child is born within 300 days after they ceased to cohabit.

5)     The person has certified the child’s birth as the child’s father under the Vital Statistics Act or a similar Act in another jurisdiction in Canada.

6)     The person has been found or recognized in his lifetime by a court of competent jurisdiction in Canada to be the father of the child.

7)     A written acknowledgment of parentage by the male person that is admitted in evidence in any civil proceeding.

Where a presumption of paternity exists, the court will make a declaratory order confirming that the paternity is recognized in law unless the presumed father can prove that he is not the child’s father.

In addition, where any of these presumptions of paternity apply to more than one male person, then no presumption shall be made as to paternity and the court will have to determine whether the male person is the father of the child.

Where there is a declaration of paternity, an application to re-open the issue of paternity can be made where there is fresh or new evidence that was not available at the time of the original hearing.

To speak with a Toronto paternity lawyer, please call (416) 972-0404

Toronto Child Custody Lawyers

Generally, custody deals with who has the right and responsibility to make decisions concerning the care and upbringing of the child.

When two people have a child, both of them have equal rights and equal responsibility to raise the child and make decisions concerning the child’s care and upbringing. However, when parents do not live together, they must determine how these parenting rights and obligations could be shared between them. They have to decide who has the right and responsibility to make decisions regarding the child, or who the child resides with.

Custody is a parent’s right to make important decisions concerning the child’s care and upbringing. Such important decisions include the child’s religion, education, and medical treatment. Custody also includes the physical care, control, and upbringing of the child. When the parents of the child disagree on the child’s care and upbringing, the custodial parent makes the final decision.

Custodial arrangements can be by court order, a separation agreement signed by the parties, or by “de facto” custody i.e. there is no court order or agreement but the child, in fact, resides with this parent most of the time. The parent who lives with the child most of the time can apply for custody and support any time after separation or even while living separately under the same roof after the relationship has ended between the other parent.

Matters relating to custody of or access to the child are determined solely on the basis of what is in the best interests of the child. That is the basic principle and that is the only test. It is not determined based on what a parent wants or is entitled to.

 TYPES OF CUSTODIAL ARRANGEMENT

Sole custody

One parent has sole custody of the child and the other parent has access to the child. The custodial parent lives with the child most of the time and has the main responsibility to raise the child and make important decisions concerning the child’s care and upbringing.

The custodial parent has full parental control and responsibility for the care, upbringing, and education of the child.

 Joint custody

Joint custody is a parenting arrangement where both parents share responsibility in the making of major decisions concerning the child’s welfare.

Parents who cooperate and can work together to raise their children could have joint custody. Both parents share the right and responsibilities of custody even though they live separate and apart. They both have the right to make important decisions concerning their child.

Joint custody is generally not granted where the parents are unable or unwilling to cooperate in decision-making concerning the care, development, and upbringing of their children.

 Shared or divided custody

In this parenting arrangement the parents jointly exercise normal parenting responsibility and the child divides his/her time between the two parents, often on a rotating basis.

Legal custody is given to both parents, with care and control alternating at stated intervals (e.g. weekly, bi-weekly, bi-monthly basis, etc.) and liberal access in the period of alternation when the child is in the care and control of the other parent.

This custodial model requires continuous interaction and cooperation between both parents.

In determining child support payable, the term “shared custody” is used to determine the amount of time a child spends with a non-custodial parent for the purpose of determining how much support should be paid.

Where one parent has sole custody but the “access parent” spends at least 40% of the time with the child, the custodial parent might receive less child support payment.

Split Custody

In this parenting arrangement, one parent has custody of the child in terms of being the parent with full parental control and responsibility for the care, upbringing, and education of the child. The other parent has care and control of the child in terms of having physical possession and reasonable access is given to the parent having custody without physical possession. If a couple has three children, one parent could have custody of two children, and the other parent would have custody of one child.

 Parallel Parenting

In this arrangement, each parent has equal right to make decisions regarding the child when the child is with him or her, and decision making on major issues such as health care, education, and religious instruction is often divided e.g. one parent may have full control and responsibility for the child’s education while the other parent has full control and responsibility regarding the child’s religious upbringing.

This form of joint custody does not depend on a cooperative working relationship or good communication between the parents. However, it maximizes contact between the child and each parent while minimizing interaction between the parents.

CHILD ACCESS

Access is the right of the child to spend time with the child's non-custodial parent. The law says a child should see each parent as much as is consistent with the child’s best interests. The law assumes it is in the child’s best interest to have a good relationship and maximum contact with each parent. For this reason, the law grants the non-custodial parent, access to the child so he/she could spend time together with the child.

Access also includes the right of the non-custodial parent to request and obtain information from third parties concerning the child’s health, education, and welfare. The “access parent” does not have the right to make a decision about how the child should be raised

Access could be denied or restricted only if the non-custodial parent engages in a behavior that is likely to harm the child.

The right to access does not depend on payment of support. The court does not refuse access to a parent because he does not pay support. The custodial parent also cannot deny access for this reason. There are other ways to get support for an access parent.

Types of Access

Reasonable Access:  The access arrangements are open and flexible. There are no specifics about when or how often the “access parent” can spend time with the child. It allows parents to work out an access arrangement that is convenient to them and can be changed when circumstances change.
Fixed or Limited Access:  The terms of access are fixed, including where or how often the access will take place, how long they would last, and the exact times for the visit.
Supervised Access:  The court can order that a third party must be there when the access parent and the child are together e.g. a relative, CAS worker, a worker at a supervised access center.  Supervised access is usually ordered where the court has concerns that the access parent's behavior during access might be harmful to the child.
Refusal of Access:  In the most extreme cases, a court can deny access to a parent

To speak with a Toronto child custody lawyer, please call (416) 972-0404.

Toronto Child Support Lawyers

Every dependent child has a legal right to be financially supported by his/her parents. A “ dependent child” means any child under the age of 18, unless the child is married, or the child is 16 years of age or over and has voluntarily withdrawn from parental control. A parent can be a biological, adoptive, or stepfather/mother.
When parents separate or divorce, there is a legal responsibility on the non-custodial parent to pay child support to the extent that he/she can. The custodial parent is entitled to child support even if she remarries or starts cohabiting with someone else.

Child Support Payors
The following persons have a legal obligation to pay child support:
a) a person who is the biological or adoptive parent of a child;
b) a person who is not the biological or adoptive parent of a child but stands in the place of a parent to the child or a person who has demonstrated a settled intention to treat a child as his/her own.

Quantum of Child Support
The child support payable depends on the gross income of the payor parent and the number of children for whom support is to be paid.
The custodial arrangement between the parents of a child also has an impact on the amount of child support payable eg

⦁ Sole custody: The guideline amount applies where the custodial parent has custody of the child most of the time.

⦁ Shared custody: This is where the support payor has custody of the child at least 60% of the time. In that case, the support payable might be less than the guideline amount. The court might allow the support payor to pay 60% of the child support otherwise payable.

⦁ Split custody: This is where one or more children live with each parent on separation. In that case, the support payable depends on the income of both parents. The amount of child support each parent would pay for any children living with the other parent is determined according to the guidelines. The parent who owes the higher amount must pay the difference between the two amounts to the other parent.

Imputing Income
Under certain circumstances, the court may refuse a payor’s statement of income and may attribute to the payor an amount of income that is reasonable based on the payor’s work history, past income, or education. The judge will then apply the Guideline amount based on his/her “imputed income”. The circumstances include where the payor fails to provide the required income or financial disclosure, is deliberately unemployed or underemployed, or is self-employed or working “under the table” and there is a reason to believe he/she does not report all the income.

Duration of Child Support
Child support payment must continue as long as:
a)     the child is under 18 years of age and is still under the care of a parent or,
b)     the child is older than 18 years of age and under the care of one of his/her parents but unable by reason of illness, disability, or other cause to withdraw from their charge or obtain the necessaries of life or,
c)     the child is over the age of majority and pursuing full-time post-secondary education.

A party can seek an order varying a support order (terminating, suspending, increasing, or decreasing) if there has been a material change in circumstances that has occurred since the making of the last support order.

Payments by the Support Payor
The general rule is that the court determines the basic child support amount by using the Child Support Guidelines. However, the court can order an amount that is not according to the Guidelines in certain circumstances.

Special expenses
In addition to the basic guidelines child support amount, the court can order additional payments. The support payor may be required to contribute towards certain additional expenses relating to the child including:

⦁ Cost of child care needed for the custodial parent to go to work or school or because of the parent’s health needs
⦁ Medical and dental insurance premium for the child.
⦁ Health-related expenses for the child e.g. orthodontic, prescription drug, therapy, or hearing aid and cost.
⦁ Special expenses for a school or educational program to meet the child’s particular needs.
⦁ Expenses for post-secondary education for the child, and.
⦁ In some cases, special expenses for the child’s extra-curricular activities, if the court considers the expenses necessary and reasonable.
The parents are required to share the special expenses in proportion to their gross incomes. The child’s contribution towards his/her expenses would be deducted before the expense is divided between the parents.

Age of the child
The guideline amount applies to a child under 18 years. For a child over 18 years, the court has the discretion to order the guideline amount or a different amount it deems reasonable and suitable under the circumstances.

Income over $150,000
When the support payer makes more than $150,000 a year, the table amount is paid on the first $150,000. For the extra income, the court may also order the table amount or in some circumstances, a lower amount based on the financial ability of each parent and the means, needs, and circumstances of the children.

Step-parents
As a general rule, the court must consider the guideline when determining support payable by a step-parent. However, where the child has another parent who is obligated to pay support e.g birth parent, adoptive parent, or another step-parent, the court may order the step-parent to pay an amount that is different from the amount set out in the guidelines.

Medical and dental insurance
Where medical or dental coverage is available to the support payor through work or at a reasonable rate, the court may order the parent to obtain or continue medical and dental coverage for the child, in addition to the support payments.

Undue hardship
In some circumstances, the court may order a child support amount that is higher or lower than the considerable amount, if following the guidelines amount would cause undue hardship to one of the parents or to the child. Circumstances that could cause undue hardship include:
⦁ Travel or other costs that make it unusually expensive for the non-custodial parent to see his/her child
⦁ Payor parent has unusually high level of debt related to supporting the family before separation, and.
⦁ The amount of support determined according to the Guideline would make it difficult for a payor to fulfill his/her legal obligation to support other dependents.
Even if the court determines that the Guideline amount would cause undue hardship to the payor, the court will not change the amount unless it would cause the payor’s household to have a lower standard of living than the support recipient’s household.

Child Support Recipients on Social Assistance
As a general rule, parents on social assistance are legally obligated to make reasonable efforts to seek support payment from the other parent, failing which their social assistance benefits could be terminated or reduced. However, they are not expected to go after the non-custodial parent for child support under the following circumstances:
⦁ He/she cannot be located.
⦁ there is a history of violence between the parents or their child or
⦁ the other parent is not working and cannot afford to pay support.
(However, you can obtain a support order as soon as he starts working.)
At this time, the Guidelines do not require child support payments from a parent who makes less than $10,820 a year.

The amount of any child support received by a parent on social assistance is deducted from his/her social assistance benefits. When there is a history of non-payment, the child support payment can be assigned to Ontario Works (OW) or Ontario Disability Support Plan (ODSP). These government agencies can then go after the defaulting payors to recover the support payment.

To speak with a Toronto child support lawyer, please call (416) 972-0404.

Toronto Spousal Support Lawyers

Every spouse has an obligation to support him or herself i.e. each spouse has a duty to be self-supporting or self-sufficient. However, under certain circumstances, the court may order a spouse to pay spousal support to the other spouse.

Entitlement to Spousal Support

The following persons are entitled to spousal support:

a)     a spouse or former spouse. This includes persons who are married to each other or who have entered into a marriage that is void or voidable, in good faith, on the part of the person seeking to assert a legal right; or persons that have entered into a polygamous marriage in a jurisdiction that allows it.

b)     Unmarried persons who have cohabited continuously for a period of not less than three years.

c)     Unmarried persons who are in a relationship of some permanence and are the natural or adoptive parents of a child.

Factors considered:

In making a determination as to whether to order spousal support, the court takes into consideration the condition, means, needs, and other circumstances of each spouse. Whether the court would order one spouse to financially support the other after the relationship breakdown, how much the court would require for spousal support, or for how long the support payments would last, depends on many factors including the following:

Length of time the parties have cohabited
Whether one spouse was financially disadvantaged by the relationship
Whether either spouse has other dependents
The ability of each spouse to be financially independent or self-supporting:
functions performed by the spouse during the cohabitation;
any order, agreement, or arrangement relating to support of either spouse.

The spouses are entitled to be compensated for contributions made during the marriage and economic disadvantages, advantages or losses sustained as a result of the marriage breakdown e.g.:

a)     one spouse sacrificing his/her career for the sake of the family by staying at home, looking after the children, the other spouse, and the home.

b)     ongoing childcare responsibilities affecting a spouse’s capacity to earn reasonable income;

c)     physical or psychological problems of the dependent spouse.

The party seeking support must establish he/she has a need and that the other party has the ability to pay spousal support. If the need is established but the proposed payor does not have the ability to pay, no support will be payable e.g. proposed payor is on social assistance.

The need may not be established in a situation where both parties were economically independent during the marriage.

Quantum of Support

The court determines the appropriate amount of spousal support having regard to the conditions, means, needs, and other circumstances of the parties.

In determining the quantum or amount of spousal support payable, one of the factors considered is the length of time the parties have cohabited. For marriages of short duration, support may not be granted or it may be granted on a limited-time basis.

Spousal support orders could be in a lump sum or periodic payments.

Duration of Spousal Support

Where the marriage is of short duration or there are no children and both parties are young, healthy, and can work and meet their needs, the duration of spousal support can be time-limited i.e. support is paid for a specific period of time.

However, if the marriage is of long duration, with children and one spouse staying at home to raise the children at the expense of furthering his/her career, the duration of spousal support may be indefinite.

To speak with a Toronto spousal support lawyer, please call (416) 972-0404.

Toronto Property Division Lawyers

Marriage is considered an equal financial partnership. When a marriage breaks down, the value of all property or wealth that accumulated during the marriage is shared equally between the spouses.

A spouse, a former spouse, or a deceased spouse’s personal representative may apply to the court for an equalization of the net family property. Only married persons can apply for equalization. Common-law spouses cannot do so.

MARRIED PERSONS INCLUDE:

a)     persons that are married to each other;

b)     persons that have entered into a marriage that is potentially void or voidable, as long as the person asserting a right under the marriage had acted in good faith;

c)     persons that have entered into a marriage that is potentially polygamous, as long as the marriage was performed in a jurisdiction that recognizes polygamy as valid.

AN APPLICATION FOR EQUALIZATION MAY BE BROUGHT UNDER THE FOLLOWING CIRCUMSTANCES:

a)     a divorce is granted;

b)     a marriage is declared null and void;

c)     spouses are separated with no reasonable prospect of reconciliation;

d)     a spouse dies;

e)     spouses are cohabiting and there is a serious danger that one spouse may improvidently deplete his or her net family property.

There are time limits for applying for the division of marital property.

EXCLUSIVE POSSESSION OF MATRIMONIAL HOME AND/OR CONTENTS

The matrimonial home is defined as any property in which a person has an interest and which, if the spouses weren’t separated, was ordinarily occupied by the person and his or her spouse as their family residence. It is possible to have more than one matrimonial home.

What is required is that the person has an ‘interest’ in the property. He/she does not need to have ownership of the property. An interest in a leased apartment is sufficient to constitute a matrimonial home.

Notwithstanding who has legal title to the matrimonial home, both spouses have equal right to reside in it. Married spouses who separate have equal rights to reside in the matrimonial home until it is sold, even if the title is in the name of only one of the spouses.

However, under certain circumstances, either spouse can obtain an order granting him/her exclusive possession of the matrimonial home and/or its contents.

To speak with a Toronto property division lawyer, please call (416) 972-0404.

When a support order is made (spousal or child support), a support payee could choose to collect the support payable directly from the payor. He or she could choose to file a Support Deduction Order with the Director of the Family Responsibility Office (FRO). If the latter option is chosen, FRO collects the amount payable from the payor and pays it to the payee.

The Director of FRO employs different mechanisms to enforce the support orders filed in his/her office including:

commencing and conducting proceedings in the Director’s name for the benefit of the recipient;
requiring any person or public agency to disclose the name of the employer, place of employment, wages, salary or other income, assets, address or location of the support payor;
requires the Federal Department of Justice to provide certain information used to locate defaulting payors;
garnishee debts owed to a support payor;
issue and file a Writ of Seizure and Sale with the Sheriff in any county in which the payor may have assets. The payor’s assets may be seized and sold, subject to certain exemptions;
register the support order in the Land Registry Office against property owned by the payor and thereby create a charge or encumbrance on the property which would be enforced by the sale of the property;
register the arrears of support debt as a lien or charge against any interest in all of the personal property owned by the payor anywhere in Ontario, both at the time of registration and thereafter;
intercept lottery winnings of a support payor where the payor wins the lottery in excess of$1000.00;
obtain an order restraining the payor from depleting his/her assets which may defeat the enforcement of the support order;
obtain a warrant for the arrest of a payor where the payor is about to leave Ontario in order to evade his/her support obligations;
file information concerning the arrears of support to a credit reporting agency;
suspend the payor’s driver’s license.

Support orders have priority over all other debts of the support payor.

Once a separation agreement or a support order is filed with FRO, it is the FRO, not the custodial parent/support recipient, who can take action to enforce the support order.

The Director of FRO could compel a support payor who owes arrears to file a financial statement and attend court to explain his default.

At default hearings, the jurisdiction of the court is limited to enforcing a valid outstanding support order and has no authority to rescind any arrears owing or vary the terms of the order i.e. this is not a variation hearing.

The only defenses available to a payor in a default hearing is to establish that:

no arrears are owing or
the payor is unable to pay for valid reasons.

A valid reason is a situation over which the payor has no control and which renders him without assets or income with which to meet his/her obligations e.g. disabling illness or involuntary unemployment.

Inability to pay as a result of the payor’s willful conduct does not constitute valid reasons e.g. circumstances which he/she willfully brought about or might reasonably have prevented, unemployed by choice, committing voluntary acts in place of employment which led to dismissal from employment, being intermittently underemployed, inability to work as a result of loss of driver’s license due to impaired driving conviction.

The court can enforce compliance with the support order by ordering immediate imprisonment or by making imprisonment conditional upon default of any payment. This is usually a remedy of last resort.

FRO cannot change the amount of support payable or terminate the support payment. If there is a material change that justifies the reduction/increase change or termination of support payable, a new court order must be obtained from the court that made the original order and filed with FRO.

 If you are interested in having our firm assist you with issues with Family Responsibility Office (FRO), please contact Toronto Family lawyers at (416) 972-0404.

A custody or access order can be varied where there is a material change in circumstances that affect or is likely to affect the best interests of a child.

A spousal support order can be varied if there is a material change in circumstances of the parties which occurred after the making of the last support order.

 Factors Considered in Variation of a Custody Order

Some of the factors considered in determining whether a material change in circumstances has occurred are as follows:

a)     Problems with remarriage or common-law relationship of the custodial parent.

b)     Custodial parent suffering from mental health problems which impact on his/her parenting ability.

c)     Misconduct of the custodial parent.

d)     Custodial parent unable to provide proper care and guidance to the child.

e)     Custodial parent moving to another jurisdiction.

f)      Custodial parent putting own needs ahead of those of the child.

g)     Custodial parents frequently changing residences.

h)     Conflict between the parents.

i)      Wishes and preferences of the child.

j)      Material changes in the circumstances of the non-custodial parent.

 Factors Considered in Variation of Access Order

The following factors are considered in making a determination as to whether an access order would be varied:

a)     Failure of non-custodial parent to exercise access.

b)     Access parent poses a risk to the child.

c)     Change in residence of custodial or access parent.

d)     Conflict between the parents.

e)     Specify terms of access.

f)      Wishes and preferences of the child.

g)     Material change in circumstances of the custodial/access parent.

h)     Misconduct of the access parent.

 Factors Considered in a variation of Child Support Order

If there is a material change that justifies the reduction/increase change or termination of support payable, a new court order must be obtained from the court that made the original order.

The court can change the original child support order only if there is a material change in circumstances e.g.:

The payor income has increased or decreased significantly
The child has withdrawn from parental control
The child has moved from one parent to another parent
The child has medical expenses

If you need to change existing access, child support, or spousal support order please contact a Toronto Family Lawyer at (416) 972-0404.

Fertility Family Law

Family law is constantly evolving. It changes as society changes. The definition of family has significantly changed over the years and the law of parentage has changed as well.

A child can now have many parents as opposed to the traditional two parents. Modern medical technological advances have led to special techniques for bringing about the reproduction of children through means other than sexual intercourse. This has given rise to complex issues in family law.

FERTILITY FAMILY LAW SCENARIOS

Two Female same-sex partners: one of them supplied her own eggs, gestated, and gave birth to the child, using the sperm of a known donor (friend, acquaintance)

Key players: 3 adults

Two male same-sex partners: one of them supplied the sperm. A conventional surrogate supplied her eggs and gave birth to the child

Key players: 3 adults

Female same-sex partners. One of them supplied the egg but a gestational surrogate gave birth to the child.

Key players: 3 adults

Two male same-sex partners. One of them donated his sperm. One woman donated her eggs. Another woman gave birth to the child.

Key players: 4 adults

Heterosexual couple ( married/unmarried). A woman donated her eggs to the couple. A man donated his sperm. A gestational surrogate gave birth to the child. The surrogate is married and resides with her husband at the time of the birth of the child.

Key players: 6 adults

A married couple, A and B, used in vitro fertilization to produce 7 embryos using the woman’s eggs and the man’s sperm. They had 3 children and had 4 embryos left over. They do not want any more children so they decided to donate the remaining embryos for the use of another known childless couple, ( C and D) who “adopted” the remaining embryos. A surrogate gestated and gave birth to a child for C and D. Surrogate had a live-in partner at the time of the child’s birth.

Key players: 6 adults

As can be seen from the above scenarios, 6 or even more adults could play a role in the making of a child and this has important implications on child custody, access, child support, and parentage determinations in family law.

ARTIFICIAL INSEMINATION

This is the impregnation of a woman with the semen of a donor through means other than sexual intercourse. The woman may expect to raise the child as her own or she may be a surrogate, in which case, she carries and gives birth to a child but will not raise the child as her own. This poses the following family law issues: what is the status of the child and the rights and obligations of the adults that played a role in the making of the child? Assuming that the donor’s identity is known, can the sperm donor be treated as the child’s parent, for the purposes of granting him custody or access rights? Can the child’s mother sue the donor for child support? Assuming again that the mother of the child was married at the time of the child’s birth, can the mother’s husband be forced to pay child support for a child that is not genetically his?

Let’s change the scenario a little bit: the husband and wife divorced two years after the birth of the child. The child’s mother remarries. The new husband seeks to adopt the child. Can the mother’s ex-husband veto the adoption by the mother’s new husband (eg by refusing to consent to the adoption)?

What if the mother was unmarried at the time of insemination and at the time of the child’s birth, would the sperm donor be treated as the child’s legal father?

SURROGACY

There are two types of surrogate motherhood: Conventional and Gestational Surrogacy. In most surrogacy arrangements, things go as planned. Occasionally, the surrogate changes her mind and this raises a lot of issues to be dealt with by the family law court.

Conventional Surrogacy: In conventional surrogacy, the surrogate contributed her egg and also gestated the baby. The surrogate is the genetic as well as the birth mother of the child.

For example, a married couple who cannot have children naturally agrees with another woman, (a surrogate) to have the surrogate inseminated with the husband’s sperm on the understanding that the surrogate would waive all parental rights to the child. The parties signed a surrogacy agreement. What if the surrogate changes her mind and decides to not relinquish the child? In a custody battle between the man and the surrogate, how would the family court determine who would have custody of the child? What is the status of the man’s wife (who was originally intended to be the child’s mother) vis a vis the child? Does she have any parental rights in this case? How about the surrogacy agreement? Can the couple sue the surrogate to demand a specific performance of their contract? Should the court enforce the surrogacy agreement? Can the surrogate veto the adoption of the child by the man’s wife by refusing to consent to the adoption?

Gestational Surrogacy: In gestational surrogacy, the surrogate supplies only the gestation. Her eggs are not used. This is usually used with the medical technique of in vitro fertilization where the sperm and the egg are fertilized in a test tube. Example: a married to have children. The wife is capable of supplying her eggs but for medical reasons, she could not carry the child through gestation. Her eggs are surgically removed and fertilized with the husband’s sperm in a laboratory. The resulting embryo is then implanted into the womb of the gestational surrogate, who carries it to term and gives birth to it. There is a surrogacy contract

In this case, the birth mother is not the child’s genetic mother and the genetic mother is not the birth mother. She was originally intended, by all parties, to be the child’s mother.

If the surrogate refuses to relinquish the child, we have a conflict between the ‘ genetic mother” and the “ birth mother”. Who is the “legal mother”? How would the court resolve the conflict between the woman who supplied her eggs and the woman who gave birth to the child? Should the parties’ intentions, as manifested by the surrogacy agreement be given effect? Would the surrogate have been given the opportunity to gestate or deliver the child, if she had, prior to the implantation of the embryos, manifested any intention to keep the child? Should the person who intended to bring about the birth of the child that she intended to raise be declared the “ legal mother”?

EGG DONATION

Consider this scenario: a woman donates her eggs to be implanted into the womb of another woman, the intended mother. The eggs were fertilized in vitro with the sperm of the intended father. The egg donor’s contribution is to supply her genetic material and not to gestate or give birth to the child. Is the egg donor the child’s mother? Does she have any rights to the resulting child?

“ OWNERSHIP’ OF EMBRYO

When a couple uses in-vitro fertilization to create test-tube embryos, which are stored in a fertility clinic for future use, upon the breakdown of the relationship, which party “owns” the embryos? Can the woman have the embryos implanted in herself without the consent of the man? Can either party donate the embryos to a third party for gestational surrogacy without the consent of the other party?

For example, a married couple used in-vitro fertilization to produce 5 embryos which are frozen and stored in a fertility clinic. The parties divorced and each remarried, while the embryos remained at the fertility clinic. The woman sought “custody” of the embryos so she could donate them to for the use of childless couples. The man refused to consent to this, saying he did not want to become a father under these circumstances. How will the court decide?

POSTHUMOUS CONCEPTION

Medical technological advances have also made it possible for a man to father a child posthumously. Posthumous conception has also raised new issues for the family court to grapple with.

The following are some scenarios in posthumous conception:

Scenario 1: Jim was diagnosed with cancer and stored his spermatozoa at a fertility clinic prior to chemotherapy or radiation treatment. He signed consent for his wife to use the sperm for conception if he died. He subsequently passed away. His wife was inseminated with his sperm and she has 2 children.

Scenario 2: Jake is an army officer about to be sent to a war zone. Prior to going into battle, he stored his sperm at a fertility clinic and signed a consent allowing his girlfriend to be inseminated with his frozen sperm if he died in battle. He was killed in the battlefield. His girlfriend was inseminated with his genetic material and she has a child for the deceased soldier.

Scenario 3: The married couple has 5 frozen embryos at Fertility Clinic consisting of both parties’ genetic material. The wife dies. Husband uses the services of a surrogate and has 2 children, using the frozen embryos.

Scenario 4: Wealthy couple has an only child, a young man of 25 years, who was killed in a car accident. Prior to his death, he had signed a consent allowing postmortem sperm retrieval for his parents to use to produce a child. This was done and stored at a fertility clinic. Medical literature recommends that post mortem sperm retrieval be done within 24 hours of the person’s death to enable recovery of viable sperm. The parents of the deceased young man had a surrogate inseminated with his sperm. The surrogate gave birth to two children.

These are the kinds of hot emerging issues arising from the intersection of Fertility Law and Family Law, which we have decided to name “ Fertility Family Law”. Manafa Law Office is at the forefront of these emerging trends in Family Law practice.

At Manafa Law Office, we can assist with a declaration of parentage for a posthumously conceived child. We can also assist with Dependant Support Application for the posthumously conceived child against the estate of the deceased parent.

Our services include:

Application to family Court for Declaration of Parentage
Parentage/Paternity Disputes
A non-genetic parent seeking access to child or co-parenting
Known donor seeking custody or co-parenting
Known donor seeking access or co-parenting
Disputes involving child support obligations against the known donors.
Step-parent Adoption Applications
Disposition of frozen embryos on separation or divorce.
Preparation of Co-parenting agreements.
Preparation of Fertility Law Agreements eg Surrogacy Agreements, Egg Donation Agreements, Sperm Donation Agreements, etc.
Providing Independent Legal Advice
Attacking or Defending Fertility Family Law Agreement eg. Surrogacy Agreements, Egg Donation Agreements or Sperm Donation Agreements

You need a lawyer who understands the ins and outs of this rapidly developing area of family law. If you need a Toronto Fertility Family Lawyer, contact us today.

Grey Divorce

(Golden year divorce, grandma and grandpa divorce, elder law divorce)

Divorce is not the exclusive preserve of the younger generation. The reality is that older couples, including grandma and grandpa can get a divorce just like the younger couples. Grey divorce refers to people over the age of 60 going through a divorce. Divorce is daunting at any age, especially at old age.

In Grey Divorces, custody and access are usually not issues as many divorcing older couples have independent adult children. The minor children, if any, are old enough to decide which parent they want to live with and how much access they would have with the other parent.

Divorce for older people over 60 facing retirement or already retired, creates a unique set of challenges and can be quite complicated. The parties have spent years building their lives together, acquiring assets or debts. One spouse may be a stay at home spouse throughout a marriage of long duration and the other spouse may be the bread winner.

Grey Divorce raises complex and unique challenges and issues that significantly impact the parties’ financial stability as they go through their retirement years.

The financial security of the divorcing older couples is often compromised. Grey divorces are significantly different from divorces for younger couples. Unlike younger couples, they have less time to recover from the adverse financial consequences arising from the divorce. They face the prospect of reduced earnings on retirement. Their careers are winding down and they would have to survive on fixed income. They face significant lifestyle changes. One or both spouses may be obligated to work past the retirement age in order to maintain a certain lifestyle. The retirement plans for the parties become unworkable as each party has less assets to survive on after divorce and may be forced to continue working after the age of 65.

Division of assets on marriage breakdown can be quite complicated and challenging. One of these challenging problems is how to deal with the matrimonial home that both parties have resided in for years. It can be a very traumatic experience for them. One party may want to hang onto the matrimonial home but may be unable to obtain or carry a mortgage. There is the issue of who gets to stay in the matrimonial home, sale of the matrimonial home, how to properly house both parties after the sale, difficulty for a retiree to obtain a mortgage to purchase a new home after the sale of the matrimonial home etc.

The financial implications of a grey divorce can be quite significant. All properties acquired during the marriage are subject to division. This includes the family home, registered retirement savings plans, pensions, investments, bank accounts, stocks, rental property and any investment in business. One of the most challenging issues is the division of the pension eg how to effect a fair division of the pension under the circumstances.

The divorcing older couple could have maintained a comfortable lifestyle on retirement with the assets they accumulated over the years, but on divorce, it is difficult to do so. The daily living expenses increase significantly as there are now two homes to maintain from one income.

With respect to spousal support, the longer the marriage, the more likely that the spousal support payment could last for the lifetime of the recipient spouse. The payor spouse cannot retire early and expect that spousal support could be reduced or cancelled on this basis alone. Even the remarriage of the recipient spouse may not automatically end the payment of spousal support.

A dependent spouse is entitled to a lifestyle that is commensurate with the accustomed lifestyle, subject to the payor spouse’s ability to pay.

Determining the quantum of spousal support payable and effecting a fair and equitable division of the matrimonial assets, including retirement funds, can be quite challenging. Dividing the assets and debts accumulated during a long marriage is can also be quite complicated.

Recently divorced seniors find it difficult to sustain a previous lifestyle with a much reduced retirement income. There are also significant lifestyle changes post-separation. Many couples who divorce later in life are often poor as a result of the adverse financial consequences of a grey divorce.

Divorcing older couples also face unique health challenges. One of the issues in grey divorces is the declining health of one or both of the parties. One of the divorcing parties may have serious health issues that may seriously impact his or her mental capacity eg Alzheimer or Dementia and may not be able to fully understand the divorce process. This could affect how the divorce would proceed. The spouse with this kind of health issue may lack the necessary legal capacity to proceed with a divorce.

Grey Divorce is particularly challenging when there are medical or mental capacity issues involved. A guardian may be appointed for the mentally incapable spouse to assist with the divorce process. This ensures the rights of the mentally incapable spouse are protected when he or she cannot make decisions on his or her own.

At Manafa Law Office, we have significant experience with grandma and grandpa divorces and can assist with the following services:

Divorce
Spousal Support
Division of Matrimonial Assets
Appointment of Guardian for the mentally incapable spouse

In Grey Divorces, we try as much as possible to resolve the issues through alternative means of dispute resolution.

HIGH NET WORTH DIVORCE

In high net worth divorce cases, complex and challenging family law issues are involved. They involve wealthy individuals and entrepreneurs with significant assets, companies, and businesses across the world. The couple’s personal expenses also require a significant amount of money. The stakes are often high: a large amount of money, assets, businesses or properties are at stake. The financial relationship between the parties may be complicated eg shared business assets, pension entitlements, or business partnerships. One or both of the parties may have business interests including shareholding.

In these marriages, one spouse could be a high income and primary income earner during the marriage and he or she is in control of the finances. The other spouse could be a full time stay at home parent, attending to the home and the children, with the assistance of their staff, which often includes nannies, housekeepers, gardeners etc. The stay at home spouse usually depends on the income earning spouse for financial support. The parties usually live a luxurious lifestyle including extensive travels or vacations, the children attending expensive private schools etc. An expensive mansion could be the matrimonial home.

A wealthy person may marry a not so wealthy individual and the relationship may create a wealthy lifestyle for him or her.

One of the factors taken into consideration by the family court, in determining the quantum of spousal support is the standard of living enjoyed by the parties during the marriage. The emphasis is on the continuation of a lifestyle both parties have become accustomed. If there has been a lifestyle of spending spree during the marriage, if the private jets were used to travel, if the parties had several domestic staff, if the parties had several vacation homes in different parts of the world, the courts would expect this lifestyle to continue, on marriage breakdown. The emphasis is on the continuation of a lifestyle both parties have become accustomed to. This has important implications on the quantum of child and spousal support payable.

But, what is the parties were living beyond their means during the marriage and were racking up debts to support their lifestyle? Should the court allow the expensive lifestyle to continue after separation? Should the wife ( or stay at home spouse) be allowed to continue to reside in the expensive mansion and refuse to have it sold? Can the recipient spouse increase her financial needs for spousal support by squandering her share of the matrimonial assets? Can the payor spouse intentionally reduce his ability to pay spousal support through a reckless dissipation of his own share of the matrimonial assets or irresponsible spending?

Income for child and/or spousal purposes include base income ( salary or periodic draws) bonus, profit distributing, value of car allowance, expense allowances, interest from investment accounts, stocks and bonds, passive income from rental income etc.

Properties subject to equalization may include primary residence which may be worth millions of dollars, residential properties, rental or commercial properties or land; vehicles, boats, actively operated businesses and passive investments, pensions, life insurance policies ( term and life); intellectual property including patents, trademarks and copyright; investment opportunities that have not yet crystallized. There may also be shared business assets or business partnerships.

Some of the issues involved in High net Worth Divorces include:

Location of all the assets
Determining matrimonial and non-matrimonial assets
Determining properties owned prior to marriage, during the marriage and after separation
Determining which assets are excludable eg gifts or inheritances
Where the parties owned shareholding interests in a company, determining whether the companies were formed before or after the marriage
Determining proper valuation of the assets
Determining to what extent all assets should be shared and in what proportions ( 50/50? 60/40? 70/30? ).
Whether the court should disregard the Child Support Guidelines and Spousal Support Advisory guidelines.

Our services include:

Divorce
Common Law Relationships
Parentage/Paternity
Child Custody/ Access
Child/Spousal Support
Property Division/Equalization
Freezing Injunctions to prevent removal of property from jurisdiction
Challenging or Enforcing marriage or cohabitation contracts

At Manafa Law Office, we serve the upscale divorcing community. You need an experienced lawyer to help guide you through the financial and legal minefields in high net worth divorce and family law. If you are looking for a Toronto High Net Worth Divorce & Family Lawyer, please contact us today.

INTERNATIONAL DIVORCE
AND FAMILY LAW

International Family Law is a rapidly developing area of Family Law. Globalization is transforming family law practice. There is a lot of international travel or mobility. People are travelling to other countries for commercial or educational reasons. More and more people are seeking work in other countries. In the course of these international travels, they form personal relationships. They marry, have children or acquire properties or own businesses in the countries where they reside or work. The parties may be residents of one country but citizens of another. They may be of different nationalities. They may own properties or businesses located in more than one country.

When these relationships break down, it raises a lot of complex legal issues for the family courts.
When parents of different nationalities divorce, each party wants to raise his or her children according to his or own culture. How would a child, with parents of different nationalities be raised? How is a marriage contracted in one country be recognized in another country? Which court has jurisdiction to determine issues dealing with custody, access, property division, divorce etc?; How is foreign support order enforced in another jurisdiction? How should the court deal with child abduction or the removal of children to another country during access visits? These family law issues extend beyond Canada and involve the laws of another country. It also means the laws of more than one country may be taken into consideration.

The extraterritorial aspects of family law pose new challenges and involves a mastery of applicable principles of private international law as well as public international law, both of which play an increasingly important role in international family law.

Private international law deals with rules regarding conflicts of law in disputes involving private legal persons. This includes conflicts of law principles and conventions by the Hague Conference on Private Law. Some of the applicable private international law conventions include:

The Hague Convention on International Child Abduction
The Hague Convention on Intercountry Adoption
The Convention on the law Applicable to Maintenance Obligations Toward Children
Convention on Celebration and Recognition of the Validity of Marriages.

These treaties are binding on member states and may be enforceable in national courts, with or without implementing legislation, as long as the member state has ratified it.

Public international law deals with norms and rules governing disputes among nation states. States enter into treaties addressing some of the transnational issues of family law eg enforcement of child support judgements. It also includes the application of international human rights law to international family law proceedings.

Some International Family Law scenarios

Scenario 1: Recognition of International Marriages

With respect to the recognition of foreign marriages, the general rule is that a marriage which is valid in one country ( eg country A) can be recognized as valid in another country ( eg country B). But what if the marriage is void as a matter of public policy in country B? Should polygamy in country A be recognized as valid marriage in country B where bigamy is against the law? Should same sex marriage in one country be recognized as valid in another country that bans such marriages or less enlightened legal regimes? What if was a marriage entered into with an underage child?

Scenario 2: International Divorce, Support, Property Division

Musa is a rich man from Egypt. He is married to two wives. Both wives have minor children for him. He moved to Canada with his two wives and children. One year after, he brought his new girlfriend to live with them. The two wives want a divorce. Is the second wife eligible to obtain a divorce? Does she need a divorce? Can she get property settlement? Child Support? Spousal Support? Assuming the first wife was able to obtain a divorce, support and property division, can the Canadian order be enforced in Egypt?

Jack and Jackie are both nationals France. They got married in the UK where they resided and worked for many years. In 2015, Jack relocated to Canada to set up a new business, while Jackie continued to reside and work in the UK. The marriage has broken down and the parties are seeking a divorce. Which country has jurisdiction over the divorce proceeding? France? the UK? Canada? Can a divorce judgment obtained in one country be enforceable in another country?

Scenario 3: International Access visits

Rosa has a 5 year old son, Bruce, as a result of a relationship she had with Jim, while residing in Kenya. Both Jim and Rosa never lived together but Jim visited his son regularly, even after Rosa ended the relationship when Bruce was 2 years old.

Rosa married Joe, when Bruce was 3 years old and they moved to London where they resided together. Joe had a very good relationship with Bruce and treated him as his son. During the marriage, Jim maintained contact with Bruce via phone and skype and visited him in London 3 times per year.

Jim’s mother, Alice, ( Bruce’s paternal grandmother) resides in Switzerland. She maintained contact with the child via skype and visited him once a year, during the Christmas holiday.

Rosa and Joe got divorced when Bruce was 7 years old. Rosa moved to Canada with Bruce a year ago.

Jim, Joe and Alice are seeking access to Bruce. Each of them wants access to the child.

On what basis are these people seeking access to the child? Which laws apply to this case? There are 4 countries involved: Canada, Switzerland, UK, and Kenya. Which country has jurisdiction to decide the case? Of all the requests for access, which one is the most problematic? What if Joe decides to keep his son after access visit and Kenya is not signatory to the Hague Convention?. What if Kenya is signatory to the Hague Convention, would that make the enforcement of the Convention any easier?

These scenarios are just examples of the kinds of issues that arise in international family law.

At Manafa Law Office, we have substantial experience representing clients with international family law issues. We appear in Ontario Courts on behalf of clients living in another country. We assist a parent to obtain a court order allowing him or her to relocate to another country with the children. We can also obtain a court order, based on the Hague Convention, to return a child abducted into Ontario or wrongfully removed from Ontario to a foreign country. We work closely with lawyers in different countries in order to present the client’s case in a manner that is likely to lead to the client’s desired outcome or the best possible outcome for the client.

Our services include:

International Marriages
Opinion letters Regarding Foreign Divorces
Challenging the Validity of International Marriage Agreements
International Divorce
Enforcement of Foreign Divorce Judgment or orders in Ontario
Enforcement of an Ontario Judgement Overseas
Recognition of Foreign Marriages and Divorces
International Custody Disputes
International Child Visitation
International Child Relocation
International Child Abduction ( Hague and Non-Hague)
Domestic Violence Victims in International Child Abduction
International Child or Spousal Support
Property Division/Equalization
Freezing of Assets / International Injunctions
Same Sex and Cohabitation Relationships
Choice of Forum/Jurisdiction (Conflict of Laws/Choice of Law)
Service of Legal Documents Across International Borders

If you are going through a divorce with transnational issues contact a Toronto International Divorce and Family Lawyer at Manafa Law Office.

MATRIMONIAL TORTS

Toronto Matrimonial Tort Lawyer

A tort is an accidental or intentional wrongful act that injures a person. A marital or matrimonial Tort is a wrongful act inflicted by one spouse upon the other during the marriage. Spousal partners are quite capable of obnoxious conduct towards one another, both during and after the breakdown of a relationship.

Historically, a spouse could not sue his or her spouse for personal injury. The spouses were considered to have one single identity. Since they did not have separate identity, they could not sue each other. A tortfeasor enjoyed liability because of his or her marital relationship to the victim or the injured party.

There is now an emerging trend in family law, where a spouse can sue the other in domestic or matrimonial tort and obtain financial compensation. A married woman can make a tort claim against her husband and vice versa. Interspousal immunity is no longer a bar to a matrimonial tort claim.

Claims for abuse suffered during the marital relationship is an emerging or developing area of family law.

Domestic torts committed during the marriage constitute an independent cause of action, separate and apart from the usual relief in a divorce proceeding. A tort claim for damages against a spouse may be included in a divorce application. All tort claims must be resolved at the same time the family law claims are resolved.

The limitation period for these claims is 2 years from the date the claim was discovered. If you believe that your spouse may be liable to you for his or her past and present actions, don’t wait until the divorce is over. The marital tort must be joined with the divorce application or you could lose your right to bring the tort claim. The evidence in the divorce case can also be used in the tort claim.

Damages for torts have been awarded by the Courts in addition to claims made under the Family Law Act or the Divorce Act. There are now remedies available for litigants whose spouses have intentionally subjected them to emotional, physical and financial harm.
Unless the tortfeasor in matrimonial proceeding, has insurance to pay for the damages awarded, the financial compensation usually comes out of his share of the property division.

Some examples of matrimonial tort claims that could be brought include:

a) Physical Assault and Battery/Domestic Abuse
b) Intentional Infliction of Mental and Emotional Distress ( negligent and/or intentional)
c) Marital Rape
d) False Imprisonment
e) Fraudulent Misrepresentation ( eg fraudulent inducement to marry; or false representation by one spouse induces the other to take some contractual or commercial action that resulted in financial loss)
f) Malicious Prosecution ( one party set in motion false criminal charges that led to unsuccessful criminal prosecution that was commenced without reasonable cause eg a wife’s false allegation that the husband had sexually assaulted his daughters led to unfounded prosecution of the husband)
g) Defamation
h) Intimidation ( eg threats made by one spouse to prevent the other spouse from proceeding with case; threat to disclose some despicable act from one’s past etc)
i) Negligent Infection with Sexually Transmitted Disease by one spouse
j) Invasion of Privacy ( eg wiretapping, illegal interception of communications eg. Telephone wiretaps, eavesdropping on telephone communications, downloading spouse’s emails, obtaining spouse’s conversations in internet chat rooms, surveillance etc)

Most divorces are settled by the parties signing a separation agreement or minutes of settlement, which usually has a waiver. By signing a settlement agreement with a waiver, the victim of the alleged tort could be signing away his or her right to proceed with a tort claim arising out the marriage.

At Manafa Law Office, we practice at the cutting edge of Family Law and we are at the forefront of emerging tort claims in Matrimonial litigation. If you are going through a divorce and you believe you have a tort claim against your spouse, please contact us for consultation. We represent either the wife or the husband. We can defend or challenge a matrimonial tort claim. At Manafa Law Office, we will help you navigate the current matrimonial torts landscape.

TRANSGENDER FAMILY LAW

Transgender Family Law is a specialized area of the general LGBT Family Law.

Transgender Family Law deals with family law issues from the perspective of transgender individuals

Although Transgender people face the same challenges as the general LGBT Community, they face additional more complicated and unique challenges due to societal bias and ignorance.

Biological sex refers to male or female classification at birth based on the anatomy and genitalia.

Gender identity is a personal characteristic and refers to a person’s internal or intrinsic sense of being a man or woman. A person’s gender identity may or may not conform to the person’s birth assigned sex.

Gender expression refers to the external manifestation of gender identity and includes behavior such as hairstyle, voice, clothing etc.

Gender identity and gender expression are therefore quite different from biological sex.

It is important to note that the fact that a person is gender non-conforming does not necessarily mean that the person is gay, lesbian or bisexual. Gender identity is distinct from sexual orientation.

Transgender is an umbrella term used to describe a person whose sense of being a male or female is different from societal expectations based on their birth assigned sex and includes transsexuals, cross dressers and intersex individuals.

Transgender people like to express themselves in a way that is consistent with their gender identity rather than their biological anatomy at birth. Their gender identity and expression do not conform to societal expectations associated with their biological sex eg. someone who is anatomically female-identifying with the male gender or someone who is designated male at birth but has a female gender identity.

They may live their lives as opposite gender by undergoing sex re-assignment surgery or they may simply gender identify as the opposite gender without undergoing sex change.

Transgender people include those who have transitioned from one sex to the other as well as those who gender identify but prefer not to undergo sex re-assignment for personal reasons eg medical or financial reasons.

Although significant progress has been made to protect their legal rights, the law is moving very slowly in this area. In Ontario, Trans people can now change the gender on their birth certificates without first undergoing surgery for sex re-assignment. This is a big step for Trans people in having their gender identity legally recognized without being subjected to the surgical requirement. Ontario is the first Province in Canada to drop the requirement of a sex change surgery in order to change gender identity.

However, Transgender people still face many barriers and discrimination. We need laws that keep up with societal changes and which reflect the reality in our Society.

Transgender people continue to be stigmatized by the system and face big hurdles in their fight for equality and are yet to be fully recognized as equal under the law. Their freedom to work and live safely in the Society is threatened on a regular basis because of their trans status or gender expression. Legal family relationships are often tied to a person’s gender and this can create legal problems for Trans people as their relationships become more challenging. They are a vulnerable and underserved segment of the population and face legal minefields on a day to day basis eg:

a)     constant harassment from the general population based on their gender non-conforming behaviour;

b)    placement of Transgender person in places inappropriate for their gender identity ( eg homeless shelters, prisons, long term care facilities etc) and subjecting them to increased risk of assault or rape

c)     discrimination based on gender identity and gender expression in the workplace, housing, public accommodation, etc.

d)    problems with their identity documents not matching their gender expression/presentation

e)     their gender identity is used against them in custody battles in an attempt to deprive them of their parental rights

It is unfair to violate Trans people’s civil rights not because they did anything wrong but simply because they do not meet Society’s expectations of how a man or a woman should behave.

 Our areas of practice under Transgender Family Law include the following:

a)   Relationship Recognition and Protection

b) Protection of Parental Rights:

where the child is adopted by a transgender parent
where the child is born to unmarried parents and not biologically related to transgender parent
where the child is biologically related to a transgender parent
where the child is born of the marriage and not biologically related to transgender parent

c)     Parenting Agreement for a transgender or gender non-conforming child

d)     Separation

e)    Divorce / Relationship Dissolution

f)     Parental Rights after Divorce/ Relationship Dissolution

g)    Custody, Support, Access Disputes

h)    Representation in Children’s Aid Society ( CAS) proceedings involving transgender parents or transgender youth

i)     Child custody, Support and Access Disputes involving Transgender Parents, Transgender Child or Gender Non-Conforming Child

j) Custody disputes between parents who disagree about the transgender status of their child(ren).

k)     Spousal Support

l)    Division of Property / Trust Claims

m)      Living Together Agreements

Cohabitation Agreements
Marriage Agreements
Separation Agreements
Parenting Agreements

n)      Transgender Family Violence Issues

 Manafa Law Office is Transgender friendly and non-judgmental. We advocate for Transgender parents, children, or spouses. We help them create the type of families that is right for them.

If you are a Transgender, with legal issues in our area of practice, please contact a Toronto Transgender Family Lawyer at (416) 972-0404 to help you navigate through the unique challenges facing Transgender people in the Ontario family law courts.

LGBT FAMILY LAW

“ There is no place for the State in the bedrooms of the nation” – Canadian Prime Minister Pierre Elliot Trudeau, 1967

LGBT Family Law is an evolving area of family law involving the LGBT community, including the challenges they face at the family court. LGBT refers to Lesbian, Gay, Bisexual, or Transgender. Many same-sex couples face unique challenges and struggle on a daily basis to live a normal life and care for their loved ones.

Canadian Constitution guarantees equal protection of everyone under the law. We believe there cannot be any compromise or negotiations on the issue of equal protection under the law. The State must recognize and protect all its citizens equally. We are passionate about protecting the rights of a minority group against the prejudices or the discrimination of the majority. The law should apply equally to everyone.
We believe that LGBT persons should be treated no differently than their heterosexual counterparts. When same sex couples and transgender persons are denied equal protection under the law, that is fundamentally unfair and offends the principle of equal protection under the law. We cannot live in a world that treats you differently simply because of who you are, who you love or who you are attracted to. The composition of a family varies from household to household. The law must recognize the changing nature of the Canadian family. What matters is the quality of the family relationship not its structure or form.

In all the fights undertaken by the LGBT community for equality, the Supreme Court of Canada has been their greatest ally and has been instrumental in protecting and advancing their rights. The Canadian Charter of Rights and Freedoms, the Canadian Human Rights Act and the Ontario Human Rights Code, have been powerful ammunition in the arsenal of the LGBT community.
Today, same-sex couples are free to marry under the principle of equality under the law.

However, the law has not been able to keep up with societal changes. Change has been very slow to come but significant progress has been made over the years.

For those seeking to start a family using the non-traditional means, the Canadian Law dealing with assisted reproduction or surrogacy is a minefield to navigate. Gay couples generally tend towards adoption of a child or having a surrogate carry their child to term. Lesbian couples may share their eggs or embryos. They may opt for surrogacy or adoption. For those who opt for in vitro fertilization using shared eggs or embryos, the use of sperm from a known donor could pose unique challenges, especially with respect to parental rights or the legal paternity of the known sperm donor.

LGBT Family Law is an exciting and emerging area of law that requires a lot of creativity on the part of the lawyer. There are significant challenges in representing people in these new emerging areas of the law but we enjoy the satisfaction of assisting people who face tremendous obstacles in their lives. We enjoy the opportunity to be creative, make new law or expand the application of existing laws to novel situations. The legal issues could create a case of first impression for the court. We believe the court should be able to carve out new interpretations of the existing law to novel issues dealing with non-traditional families.

Our LGBT Family Law practice include the following:

a) Parenting/ Parenthood Issues involving step parents, fathers, co-mothers

b) Application to the Family Court for Declaration of Parentage or Guardianship

c) Adoption Applications ( eg for same sex couples, fathers through sperm donation, step parents and adoption of unrelated child(ren)

d) Domestic Violence Issues

e) Separation

f) Divorce / Relationship Dissolution

g) Child custody, Support and Access Disputes

h) Spousal Support

i) Division of Property / Trust Claims

j) Legal Proceedings involving the Children’s Aid Society and same sex couples

k) Living Together Agreements

i) Cohabitation Agreements

ii) Marriage Agreements

iii) Separation Agreements

iv) Parenting Agreements

Manafa Law Office is LGBT friendly and non-judgmental. We are committed to advancing the rights of LGBT people through advocacy and litigation. We offer full service that meets the unique needs of the LGBT community. We have extensive experience fighting for fairness and justice and we are committed to working towards equal rights for the LGBT community.

If you are from the LGBT community and have Family Law issues, please contact a Toronto LGBT Family Lawyer at (416) 972-0404 to determine your rights, interests and the best methods for protecting them.

CHILD PROTECTION LAW

Toronto Child Abuse Lawyer

Child protection law is a specialized aspect of family law. The province of Ontario has laws that protect children from harm including abuse and neglect. Children who have been denied proper parental care can be apprehended by the State ( through its agency, the Children’s Aid Society (CAS) and brought to a place of safety ( usually foster care). The State has a legitimate interest in ensuring that children are not harmed in their parent’s care. The State, in its exercise of its parens patriae powers, can remove children from their families and permanently cut the children’s ties from their families.

Ontario child protection law is designed to prevent state intervention unless an independent judge is satisfied that such intervention is warranted.

Children have the right to be raised by their families but they also have the right to be protected from neglect, abuse, maltreatment, or other parental misconduct.

Lack of proper parental care includes neglect, abuse, abandonment, substance abuse/dependence, mental and/or physical incapacity to care for the child, failure to send a child to school or doctor, failure to provide necessities for the child. The CAS can also apprehend a child as a result of the death of a caregiver.

A parent may be charged criminally for assaulting or neglecting the child and also be subject to a child protection proceeding for termination of the parent’s rights on a temporary or permanent basis. Losing custody of a child to the State (government) as a result of lack of proper parental care is a serious issue.

At Manafa Law Office, we fully respect these values but we also believe in the parent’s right to a rigorous defense to prevent overreaching by CAS workers and to ensure that the procedures are fair.

For over 20 years, we have been staunch advocates for parents in the child welfare system. We have been providing quality legal representation to parents whose children have been taken away by the Children’s Aid Society ( CAS). In child protection proceedings, the CAS charges the parents with some form of inadequacy, misconduct or unfitness in raising their children.

Parents have the right to the care and custody of their children without the awesome and coercive power of the State. However, this right may be limited or lost when their level of child care falls below the minimum standard of care for child rearing. When the CAS seeks to remove the children from their families due to alleged parental unfitness, it must prove its case in a court of law.

Poverty is the leading cause of the intervention of the State in a child protection case. Most of the parents accused of abuse or neglect of their children are living in abject poverty and are also members of the minority groups.

It is possible for a CAS worker to make decisions based on stereotypes or unwarranted assumptions rather than on actual facts or the actual qualities and characteristics of the individual parent.

As lawyers for parents in child protection cases, we assist our clients in overcoming the stereotypes, assumptions, and false expectations that overwhelm them. We challenge these stereotypes and assumptions of the child protection system by bringing out the best in our clients: their admirable qualities, strengths, abilities, capabilities, talents etc. We emphasize the qualities, talents and the successes in their lives not their failures. We bring out the strength of each particular client. We assist our clients to tell their counter stories of happiness, successes, strength and achievements. We humanize them. We get to know each client and his or her needs.

We advocate for families threatened by State intervention ( through the CAS) with temporary or permanent loss of their parental rights. We will not advise our clients to accept a result that does not conform to his or her preferences when those preferences could be achieved through rigorous advocacy.

In most cases, the CAS simply seeks to assist the family in raising their children safely and will develop a plan of care that will allow children to remain with their families. We work with the families to ensure compliance of the terms of the plan of care. We also believe that a plan of care cannot be a “ one size fits all”. It must be crafted with a proper understanding of the parents’ needs and it must adequately address those needs.

Where children are temporarily removed to foster care, we assist our client to work with the CAS to overcome the problem that led to the apprehension of the children and ensure a safe and quick return of the children.

We assist the CAS in identifying the proper issues that should be addressed and ensure that the plan of care meets the parents’ needs. We ensure that parents complete the services designed to make them better parents.

We can assist the parents in negotiating a voluntary service agreement with the CAS so that they can work cooperatively with the family in addressing the issues without resort to the courts.

We also demand a careful investigation of the circumstances that led to the apprehension of the children. We are vigilant to prevent overreaching. Sometimes, the efforts of the CAS workers may be well-meaning but deeply flawed investigative efforts and unfair procedures are used. We believe that children should not be wrested from their families based on the flawed investigation or unfair procedures.

We believe that parents have the right to raise their children and that children have the right to be raised by their families, except when the conditions at home are such that the children deserve to be removed. We believe in the rights of poor and vulnerable families and their children to be protected by the rule of law. We are devoted to serving the parents’ interests. When parents have done nothing to justify State intervention in their family’s life, we fight to ensure their rights are upheld.

Our services include the following:

Representing Parents facing concurrent criminal law charges and child protection proceedings
Advocacy for Parents with Disabilities
Representing parents without immigration status
Medical Child Abuse
-Munchausen Syndrome by Proxy
-Osteogenesis Imperfecta (Brittle Bone Disease)

Physical Injury to the child
-Physical Abuse
-Corporal Punishment

Intentional or Accidental Injuries
-Head Trauma
-Bruises
-Fractures/ Unexplained Fractures
-Burns
Allegations of Child Exposure to Domestic Violence
Child Abandonment
Parents with Substance Abuse Issues (Drug or Alcohol Addiction)
Child Neglect Based on Mental Illness of Parent
Sexual abuse Allegations
Neglect Allegations based on Mental Illness of a Parent
Advocacy for the Aboriginal Parent
Negotiating Voluntary Care Agreements with the CAS
Parental Inability to Care for Special Needs Children (No abuse or neglect issues)
Parental Inability to Care due to Incarceration
Trials
Appeals

If you are looking for an experienced Toronto Child Abuse lawyer, Please do not hesitate to contact us today. We represent both mothers and fathers.

ABORIGINAL DIVORCE
& FAMILY LAW

Prior to colonization, Canada’s Aboriginal Peoples (status or non-status Indians, First Nations, Métis, or Inuit) governed themselves, had their customs and traditions, system of justice etc. Colonization led to laws, policies and practices that discriminated against the Aboriginal Peoples and disconnected them from their culture, heritage and identity. The emphasis was the assimilation of the Aboriginal Peoples into mainstream society.

This led to racism, poverty, loss of culture and identity, the erosion of their language, culture, traditions and way of life. Aboriginal children were uprooted from their communities and taken to the residential or boarding schoolsin an attempt at forced assimilation and many of them suffered severe abuse and neglect at the residential schools. Many of the social problems suffered by the Aboriginal Peoples eg. Suicide, substance abuse, addictions, poverty, high incarceration rates etc, can be traced to the trauma they suffered in the residential school system as well as the effects of colonization.

In or around 1952, the federal government gave the provinces jurisdiction over Aboriginal Child Protection matters. This led to large scale removal of Aboriginal children living on the reserve and placement of these children in non-Aboriginal homes, leading to further disconnection of the children from their aboriginal families, community, culture and tradition.

The Aboriginal Peoples face serious access to justice issues. They have difficulty accessing the benefits of the family law system. There are cultural and language barriers. The courts can be an intimidating environment. The experience of disadvantage and marginalization has also led to mistrust of the authority figures

In family law, many of the legal rules that apply to non-Aboriginal peoples, also apply to Aboriginal Peoples, but there are significant differences, because of the unique circumstances of the Aboriginal Peoples. In some aspects of family law, the Aboriginal Peoples may be subject to different rules depending on their status and where they reside.

The practice of Aboriginal Family Law is an emerging area of family law that requires a thorough mastery of the interplay between the Canadian Constitution and the relevant federal and provincial statutes.

In the Constitutional division of powers, Canada’s Constitution Act, 1867, section 91(24) gives the federal Government exclusive jurisdiction over “ Indians and lands reserved for Indians” .

Pursuant to this power, the federal government enacted the Indian Act in 1876. It defines who is an Indian and sets out the laws that apply to the Indians. The subject matters covered therein include Indian registration and band membership, reserve lands, wills and estates of Indians, taxation and exemption from seizure of property on reserve; election and bylaws of band Councils.

It is necessary to determine, in a family law case involving the First Nations, which of the spouses, and children, if any, have status under the indian Act, ie Band members. In some instances, membership does not confer status under the Indian Act.

The Inuit and the Metis do not fall under the jurisdiction of the Indian Act, but they fall under the jurisdiction of the federal government pursuant to the Constitution Act.

Section 92(13) gives the provinces exclusive jurisdiction over “property and civil rights in the province”. This includes matrimonial property issues, spousal and child support. Adoption, custody and access, paternity issues etc.

According to the principle of federal paramountcy, when the federal government (Parliament) passes laws under section 91(24), all provincial laws that are inconsistent with the federal law, cannot apply.

This means that some parts of the Provincial statute such as the Family Law Act, that are inconsistent with the provisions of the Indian Act may be inapplicable and the family court judge may not have jurisdiction to deal with these issues.

Section 88 of the Indian Act incorporates provincial laws of general application but also provides that the doctrine of federal paramountcy applies where the incorporated provincial law conflicts with a valid federal law, regulation or band bylaw.

Section 88 also makes it clear that a provincial law of general application may be displaced if it is inconsistent with a First Nation’s laws or by-laws. It is therefore necessary to determine whether the Band had passed bylaw affecting the family law issue in question; whether they have passed laws respecting marriage or property rights or whether the parties followed customary laws of the First Nations.

As a general rule, provincial laws of general application with respect to custody and access, also apply to First Nations people on reserve land. However, where the First nation people have taken steps to make laws relating to custody and access eg under a Self-Government Agreement, the First nations laws will supersede the provincial laws.

Canadian family law is based on the presumption of a nuclear family, the emphasis being on the role of the two parents in the children’s lives. Priority is given to parents over 3^rd parties eg grandparents in custody and access matters. However, in Aboriginal culture, their child rearing practices are significantly different from those of the non-Aboriginal counterparts and involve extended family members, band members and their community at large. Extended family members include the clan family, the elders and spiritual leaders. Children are the responsibility of the family members, the extended family and the community. Their cultural beliefs are based largely on Aboriginal spirituality and their special relationship with nature and mother Earth.They adopt the holistic approach to child rearing.

When the court makes a decision about custody, access or parenting regarding a child, it has to consider the best interests of the child. When dealing with the best interests of an Aboriginal child, the court must take into consideration, the child’s Aboriginal ancestry, identity and heritage as part of the best interest determination process. However, this is just one factor out of many factors to be considered and it does not outweigh the other factors. Besides, the “best interests of the child” legal standard is very vague and relies heavily on the subjective moral values of the decision maker which may be at odds with those of the Aboriginal Peoples. The standard actually applied may very well be those of the urban middle class society.

In a custody battle between an Aboriginal parent residing on the reserve land and a non-Aboriginal parent residing in the city, the living conditions in which the child could be raised on the reserve, could be considerably less than those offered by the non-Aboriginal parent, even though, by Aboriginal standards, they would be considered adequate.

What is in the best interests of an Aboriginal child? Should the emphasis be on materials comforts in raising the child or the spiritual and emotional wellbeing of being raised among his own people and according to his culture?

Under the Child Support Guidelines, the amount of child support payable is based on the gross income ( ie income before tax or deductions) of the payor parent. Section 87 of the Indian Act, provides that the personal property of an Indian situated on reserve is not subject to taxation. The income of the status Indian is, therefore, in some cases, tax exempt. The income of the status Indian payor parent is grossed up to arrive at an income that is comparable to a taxable income, for the purposes of determining the appropriate amount of support payable as well as the proportionate share of the section 7 expenses. The imputation or grossing up of income is authorized by section 19(1)(b) of the Guidelines.

In addition to the support provisions in the provincial law, there are also other support provisions available from the federal government, pursuant to section 68 of the Indian Act, under certain circumstances. When these payments are received, it may be taken into consideration in determining appropriate child or spousal support payable under the provincial legislation.

Parliament’s exclusive jurisdiction over “ Indians and lands reserved for Indians “ means that provincial laws dealing with the division of matrimonial property are inapplicable to property located on reserve but it does not affect the application of the provincial law to property owned by a status Indian when that property is located off reserve. Family court judges may lack jurisdiction to make orders dealing with matrimonial real property held on reserve.

In addition, where the First Nation has a Self-Governance Agreement or exercises or has taken steps to make laws dealing with matrimonial real property on reserve, the First nation’s laws or by-laws will supersede the provincial laws inconsistent with it.

The Family Law Act says that an award of damages is excludable from division on marriage breakdown. Many Aboriginal Peoples have received residential school awards which includes damages for the loss of their culture, language, family life, physical and sexual abuse. How do we characterize these payments for the purposes of property division, child and spousal support? Is the redress payment and award of damages that is excludable from division on marriage breakdown? The acquisition of the property bears no relationship to the marriage partnership

The same provincial and federal laws respecting marriage and divorce apply to both Aboriginals and non-aboriginal litigants. In addition to these provincial and federal laws, the courts recognize the Aboriginal customary marriages and divorces. Aboriginal customary laws have a significant influence in the lives of the Aboriginal Peoples.

In Ontario, the Family Responsibility Office ( FRO) enforces child and spousal support orders. It collects the payment from the payor or his or her employers and remits them to the payee spouse. FRO can take action against the payor to enforce payment and can garnishee or seize the amount owing from the payor’sincome or a government agency.

Under section 89 of the Indian Act, registered Indians are exempt from the garnishment or seizure of property located on reserve, by non-indians. Property includes bank accounts and incomes located on reserve. In other words, the property of an Indian located in a reserve, cannot be attached unless the garnishor is an Indian or a Band. In a dispute over the enforcement of child or spousal support between two registered Indians, the garnishment of property or income earned by the payor will be valid. However, where the recipient trying to enforce the support order is not registered Indian, the Indian payor would be exempt from garnishment of any property located on the reserve. The non-Aboriginal recipient would have to look for alternative means of enforcement of the order eg. where the payor has property that is located off reserve, it may be garnisheed.

At Manafa Law Office, we understand the unique legal status of the Aboriginal People. We understand the unique legal issues that affect the Aboriginal people in the family law courts. We are sensitive to the needs of the Aboriginal families and we tailor our family law services to meet their unique needs and circumstances.

Our services include:

Jurisdictional Issues ( Federal / Provincial)
Aboriginal Marriages/ Aboriginal Customary Marriages
Aboriginal Separation and Divorce
Aboriginal Child Custody and Access
Aboriginal Child or Spousal Support under the Family Law Act
Aboriginal Support under the Indian Act
Enforcement of Aboriginal Family law Orders ( on and off reserve)
Division of property between Aboriginal Common Law Spouses
Division of property upon Divorce – Matrimonial Home
Division of Property between Aboriginal spouses
Division of property where only one spouse is Aboriginal
Child Protection Proceedings involving an Aboriginal child
Aboriginal Customary Adoption
Aboriginal Domestic Violence
Restraining Orders
Alternate Dispute Resolutions

MILITARY DIVORCE
& FAMILY LAW

Family law is a complicated area of the law but it is even more complicated when a military spouse is involved. Family law cases involving the military can present a variety of unique and challenging issues that civilian litigants don’t face.

The circumstances and the needs of the military family are unique. They make sacrifices not expected of civilians. They risk their lives to protect the rights and freedoms of Canadians. They also receive benefits not available for civilians. Members of the Canadian Armed Forces have a duty to serve the country. They have an obligation to the Crown. They also have an obligation to care for their families. When duty calls, they set aside their own personal matters to answer the call to defend the country.

There are unique issues that a typical family lawyer can easily overlook. The issues of residency, jurisdiction, custody disputes, child or spousal support, or division of property can be quite tricky in military divorce and family law because of their unique situation.

Life in the military can be very demanding. Lack of geographic stability is a fact of life for military families. Military life entails multiple deployments, dangerous missions, multiple home- based assignments or reassignments, living away from spouses and children for long periods of time, risks of combat, remote assignments etc. Overseas deployments are also a fact of life for
the military parent. The frequent transfers can wreak havoc on the families of military members. The military parent is often away on training or work commitments for lengthy periods of time. He or she may be stationed in a military location that restricts access to civilians. Military duties can significantly interfere with the parenting time of a military parent. Frequent and long
absences from home affects a military parent’s ability to parent his or her children. A military parent’s ability to act as a child primary caregiver can be materially affected by military assignments and deployments.

Serving court process on a deployed service member can be difficult. Imagine trying to serve court documents on a naval officer on board a ship in the middle of nowhere. A service member may reside in a remote or undisclosed location. He or she could be deployed to another country and service of process could be governed by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters.

Frequent deployments gives rise to a disproportionately high number of child relocation or mobility cases among military families because they move more frequently than their civilian counterparts. A move pursuant to military orders is in fact, a forced relocation by the military parent. The non-custodial parent’s role in the children’s lives would be significantly impacted by the move. The children may be temporarily or permanently separated from their other parent. Frequent deployments can be disruptive to the children or normal family life. It could be quite disruptive to a child’s stability, with constant change of residences, schools, friends etc. In some cases a move could be seen as a positive and beneficial to the child.

Mobility principles established in family law make no exception to military families, yet their circumstances are unique.

The law requires that children be placed in a situation that serves their best interests and to consider other factors in addition to the parent’s military status. However, the possibility of
frequent deployments may cause the courts to view a military parent as unsuitable primary caregiver. Should the Courts place the interests of the military parent ( ie prevent the military
parents from losing custody of their children because of their military status and the possibility of deployment) above a determination of what is in the child’s best interests? How should the family courts handle parenting issues involving a military parent with little or no geographic stability? Military life could involve irregular child care schedules, full time duties, frequent deployments etc. Courts prefer stability, structure, continuity, predictability and security for the child.

In some cases, child relocation could be in the child’s best interests. There could be high quality recreational facilities, daycare facilities, youth activities and schools on base. Relocating to another country could help broaden a child’s horizon. It can be a very great learning and enriching experience.

An array of jurisdictional issues can arise in a military divorce and family law matter. There are multi-jurisdictional cases involving interprovincial or international custody litigation. There is the issue of deployment and its impact in establishing domicile or jurisdiction for the purposes of divorce. Ontario court may exercise jurisdiction over a member of the military if the
province is his or her domicile. However, the member could be within the territorial jurisdiction of the Ontario court due to military assignment and because of a military order. Does the fact that a military spouse was deployed to Ontario on military duty or assignment, give Ontario courts jurisdiction over the service member for divorce purposes? The fact that a military member is stationed in Ontario does not automatically make him a resident of Ontario. It is possible for the military member to physically reside in Ontario without being a legal resident of Ontario. The requirement of domicile cannot be met by mere proof of residence imposed upon a soldier by the order of his military superiors and because of his or her obligations to the Crown. However, it is quite possible for a military spouse to acquire a domicile of choice at the place to which he or she was posted eg by continuing to reside there voluntarily after his military assignment has ended.

Military Service members could be deployed anywhere in the world. Sometimes they move with their families. Sometimes they marry the local women in the country of deployment. Sometimes they marry other military officers from foreign jurisdictions, who are also stationed in the same country of deployment. They could have children born abroad by a foreign national. On marriage or relationship breakdown, which country has jurisdiction over the divorce, custody, support, division of property etc? If the parties obtain a divorce in a foreign country, would this divorce be recognized in Ontario?

The family of the military spouse could accompany him in his postings in different parts of the world. Frequent inter-provincial or international deployments often results in the non-military spouse taking a number of menial low paying jobs to accommodate the military spouse’s military career and postings, spending considerable time at home caring for the children etc. His or her career, during the cohabitation would be made secondary to that of the military spouse and childcare or homemaker responsibilities. Child rearing responsibilities and spotty employment history could significantly affect the earning capacity of the non-military spouse. This has important implications on eligibility for spousal support, the quantum of support and its duration. There is also the issue of the impact of frequent deployment or overseas deployment on parenting time or custodial issues; the impact of active duty status in custody disputes, inter-provincial or international child relocation, and variation of child custody while a parent is deployed out of province or out of the country. Military deployments may impact custody and access determinations.

The working life of a military parent can be inflexible. Military duties can prevent an access parent from exercising court ordered access or parenting time. Should a deploying military parent be allowed to assign his parenting time to a family member eg step parent, the children’s grandparents or other relatives? Uncertainties regarding future deployments or military transfers can pose significant challenges in dealing with custody or access issues.

Where a military parent has custody of the children, who takes over as the child’s guardian and caregiver during periods of military deployment? Should the non-military parent have a right of first refusal? Should the military custodial parent, as the primary caregiver, delegate his or her parenting time to whoever he or she chooses, including the children’s step parent, their grandparents or other relatives? Can parenting time be assigned to third parties?

In military custody cases, courts have to grapple with protecting the military member from having his or her military status unfairly used against him or her, while protecting the best interests of the children involved.

Where a custodial military spouse allows the children’s non-military parent to temporarily care for the children during a long period of deployment overseas, can the military spouse seek a variation of the existing court order because a new status quo has been created by the long absence of the military spouse in the children’s lives?

There is the issue of the determination of the military parent’s income for child or spousal support purposes. Should all fringe benefits including allowance for combat duty, housing benefits be included in income for the purposes of determining the child or spousal support payable? Should military benefits or allowances that are not considered income for federal income tax purposes be considered income for the purposes of calculating child and/or spousal support?

Child Support is based on the non-custodial parent’s annual income and the number of children for whom he or she has responsibility. When military parent is deployed, there could be a change in his or her income. The income may increase or decrease and may give rise to a variation of the support order.

Deployment not only affects child custody, it may also significantly impact on child support as well. Members of the military often are unable to spend as much time with their children as the non-military spouse. Child support is based in part, on the number of days each parent spend with the children. According to the 60/40 rule, a non-custodial parent that spends more than 40% of the time with the children pays reduced child support. Military parents could end up paying more in child support because they spend less parenting time with their children.

The long absence of the military spouse from his or her family often leads to a disproportionate amount of paternity claims when children are born during deployment.

There are also assisted reproduction issues involved as well. Some military men store their sperm in a fertility clinic before going to a war zone with instructions for the wife or girlfriend to use the frozen sperm to conceive a child if he dies in battle. This raises issues with respect to recognition of parentage of and support obligations of the estate of the deceased military officer, to, the child conceived and born posthumously.

There is also the issue of the proper division of military pensions and entitlements on marriage breakdown. There is the issue of whether combat related special compensation is divisible on marriage or relationship breakdown.

There are no clear rules to guide the Courts in dealing with the unique family law issues involving the military family.

At Manafa Law office, we understand the unique and complex challenges military families face at the family law courts. We understand the family law needs of military families. Whether you are a service member or the spouse of a service member, you need the guidance of a Toronto Military Divorce and Family lawyer who is experienced in handling all aspects of a military divorce or separation and who will help you navigate the intricacies of a military divorce or relationship breakdown. Contact us today!

Our services include:

Military Divorce
Interprovincial or international jurisdictional issues
Interprovincial and International Relocation of Children involving a military parent
Division of Military Pensions
Military Child Support
Military Child Custody, Access or Parenting Time
Military Child Abduction/ International Child Abduction
Military Paternity Claims
Military Divorce
Military foreign divorce opinion
Same-Sex or Transgender couples in the Military
Common Law Relationships in the Military
Domestic Violence in the Military
Assisted Reproduction issues / Posthumous conception issues
Declaration of Parentage for a child born posthumously to a military service member
Dependant Support Application for a child born posthumously to a military service member
Grandparents Rights
Child protection proceedings involving a military parent Domestic Contracts ( marriage agreements, cohabitation agreements, separation agreements, parenting agreements)
Enforcement of a foreign military divorce, custody or support order

Practice Areas

Call or Email Us Today

Call Us

(416) 972 - 0404

Domestic Divorce
and Family Law

Fertility Family Law

Grey Divorce

(Golden year divorce, grandma and grandpa divorce, elder law divorce)

HIGH NET WORTH DIVORCE

INTERNATIONAL DIVORCE
AND FAMILY LAW

MATRIMONIAL TORTS

Toronto Matrimonial Tort Lawyer

TRANSGENDER FAMILY LAW

LGBT FAMILY LAW

CHILD PROTECTION LAW

Toronto Child Abuse Lawyer

ABORIGINAL DIVORCE
& FAMILY LAW

MILITARY DIVORCE
& FAMILY LAW

Call or Email Us Today

Call Us

(416) 972 - 0404

Follow Us On

Contact Detail

Main Menu

Practice Areas

Call or Email Us Today

Call Us

(416) 972 - 0404

Domestic Divorce and Family Law

Divorce

TORONTO DIVORCE LAWYERS

Common-Law Relationships

Parentage/Paternity

Child Custody/Access

Child Support

Spousal Support

Property Division/Equalization

Domestic Agreements (Marriage, Cohabitation, Separation, Parenting)

Default Hearings / Family Responsibility Office (FRO) issues

Variation of existing Access/Custody/ Support Orders

Fertility Family Law

Fertility Family Law

Grey Divorce

(Golden year divorce, grandma and grandpa divorce, elder law divorce)

Grey Divorce

HIGH NET WORTH DIVORCE

High Net Worth Divorce

INTERNATIONAL DIVORCE AND FAMILY LAW

INTERNATIONAL DIVORCE AND FAMILY LAW

MATRIMONIAL TORTS

Toronto Matrimonial Tort Lawyer

MATRIMONIAL TORTS

TRANSGENDER FAMILY LAW

TRANSGENDER FAMILY LAW

LGBT FAMILY LAW

LGBT FAMILY LAW

CHILD PROTECTION LAW

Toronto Child Abuse Lawyer

CHILD PROTECTION LAW

ABORIGINAL DIVORCE & FAMILY LAW

ABORIGINAL DIVORCE & FAMILY LAW

MILITARY DIVORCE & FAMILY LAW

MILITARY DIVORCE AND FAMILY LAW

Call or Email Us Today

Call Us

(416) 972 - 0404

Follow Us On

Contact Detail

Main Menu

Domestic Divorce
and Family Law

INTERNATIONAL DIVORCE
AND FAMILY LAW

ABORIGINAL DIVORCE
& FAMILY LAW

MILITARY DIVORCE
& FAMILY LAW