Family Law

Finding the best resolutions for your family

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Family Law

Finding the best resolutions for your family with an experienced family lawyer in Ottawa

If you’re looking for an Ottawa Family Lawyer, our team can help. We know that family law issues can come up when you least expect them, and that they are often combined with emotional concerns. With our knowledge and experience we strive to make the legal process as straightforward as possible for you, ensuring that your interests are protected. Out team members are at the forefront of developments in Family Law. We can help you address all of your family law issues using the best resolution process for your particular situation.

We can provide you with continuity of service by working as a cohesive unit. This means when you hire one of our family lawyers, you get the support of our entire team if and when it is needed. If your lawyer is away, another of our lawyers will be available to assist you. It also means that our legal services and fees will reflect the complexity of your issue. Members of our group have appeared before all levels of courts and tribunals, and have contributed to precedents that have helped Canadian family law evolve to meet today’s values.

The Virtual Family Law Project

Several of our Family Law lawyers are part of The Virtual Family Law Project. The Virtual Family Law Project is a group comprised Senior Ottawa Family Lawyers who bring their expertise in arbitration, mediation and court processes to permit families to continue to work towards resolution of their family law issues outside of the public court system, using remote technology.

Our services

Helping you through separation and divorce

You have decided to separate from your spouse, now what? When married or common-law spouses decide to separate, it is never easy and every situation is unique. Nelligan O’Brien Payne’s family lawyers can help you understand your legal rights and responsibilities, and provide you with advice and guidance on how to move forward based on your particular circumstances.

Separation

You and your spouse are considered to be separated as soon as one of you decides that the relationship is over, and that there is no ‘reasonable chance of reconciliation’. You can still physically live in the same house as long as you are living ‘separate and apart’, meaning that you are both living independent lives while sharing common accommodation, and there is no chance that you will ‘get back together’. In Ontario, there is no legal formality to go through to be ‘separated’ so long as the above threshold is met. Once you have separated, you and your spouse can negotiate and enter into a separation agreement to settle any issues arising from your separation. You can learn more about preparing separation agreements and resolving family law disputes.

Divorce

After ‘living separate and apart’ for one year, either party can apply to court for a divorce. The law in Ontario does not require the consent of both spouses to grant a divorce. There is only one necessary ground for divorce, which is marriage breakdown and being separated for one year. Before granting a divorce, a court will ensure that there is no possibility of reconciliation, and that reasonable arrangements have been made for the support of any children of the marriage. If no arrangements are in place, or if the arrangements are inadequate, the court may delay the granting of a divorce until such arrangements are made. Unless a divorce is contested by the other spouse, the court process is typically one that is limited to filing certain completed forms and paper work, and in most cases, there is no need for a hearing or actual attendance at court.

We can help you with any issues related to your separation or divorce

Our experience allows our lawyers to provide you with family law services that focus on finding solutions to issues related to your separation or divorce that work for you. Issues that we can help you resolve, regardless of how simple or complex, include:

Making sure family law is for everyone

Family law is for everyone, regardless of their gender identity or sexual orientation. Nelligan O’Brien Payne’s family lawyers understand the particular issues that are relevant to members of the LGBT community, including members of the community who are lesbian, gay, bisexual and trans-identified, in family law matters, and are experienced in resolving them.

Our lawyers provide our clients in the LGBT community with a full range of family law services to help you find the solutions you need and experience meaningful equality. These services are focused on your family needs as a member of the LGBT community, and include common-law and same sex marriagecohabitation and other agreementsadoption and reproductive technologies; as well as separation and divorce, including custody, access and parental recognition.

We are here to assist you with your family law matters, no matter who you are or who you love.

Adoption provides a legal means for another family to permanently take on the responsibility of caring for and raising a child.

In Canada, provincial legislation regulates adoption. There are several ways to adopt in Ontario, which are all governed by the Ministry of Children and Youth Services. These are adoption by a relative or family member, public adoption through the Children’s Aid Societies (CAS) of Ontario, private adoption through an adoption practitioner or agency, and international adoption.

Other service we provide to those hoping to adopt:

In Ontario, an applicant must be 18 years of age or older to adopt, unless special circumstances exist.  Where a child is placed by a society, agency or licensee, a home study report or assessment must be conducted, and the placement must be approved by a Director appointed under the Child and Family Services Act. Canadian law makes it an offence to give, receive, or agree to a payment or reward of any kind in connection with a child’s adoption. Legal fees are exempt from these requirements. The penalty for a violation can be up to a $25,000 fine and three years of imprisonment.

Written consents by various individuals affected by the adoption are required before an adoption can be made. Consent is generally required from a child’s parents or guardians, as well as the child if they are seven years of age or older. A parent cannot give consent for adoption before a child is seven days old. The spouse of the applicant must also consent to adoption. There is a 21 day statutory cooling period during which consent can be withdrawn. Where this period has passed, and a child has not yet been placed for adoption, parental consent can still be withdrawn with court approval where it is in the child’s best interests.

To finalize an adoption, a court will make an order for the adoption based on the best interests, protection and well-being of the child. An adoption order, once issued, is final and the applicant becomes the parent of the adopted child. Orders of access to the birth family are generally terminated upon placement, however access orders made prior to a relative or family adoption will survive an adoption order. An openness order can also be made by the court for the purpose of facilitating communication or maintaining a relationship between the child and a birth parent or another person with whom the child had a significant relationship or emotional tie.

In some cases, adopted children and birth parents may want to attempt contact after an adoption is completed. In Ontario, documents filed in support of an application for adoption are generally confidential, but identifying information may be disclosed if there are compelling reasons, or disclosure is necessary for the safety, health or wellbeing of a child. When an adopted child reaches 18 years of age or older, the child or the child’s birth parents may apply to receive a copy of the birth registration and other records. However, records may not be disclosed if a no-contact declaration has been filed by a birth parent or an adopted person who does not wish to be contacted.

Putting your family disputes to rest

Nelligan O’Brien Payne’s experienced family lawyers understand that legal disputes in family law are never easy for those involved, and are often heightened by stress and emotion. Many disputes can be resolved outside of court, but sometimes legal action is needed. We can help you choose the right option to put your family law dispute to rest so that you and your family can move forward with your lives.

Litigation and Appeals

When legal action is needed to resolve your dispute, you can be confident that our experienced lawyers are at the forefront of developments in family law. We have contributed to precedents that have helped Canadian family law evolve to meet today’s values. You can be assured that our family lawyers know the judicial system well, and are highly regarded advocates with a proven reputation of excellence. Our family lawyers handle a full range of litigation matters, including appeals to higher courts.

Members of our practice group have appeared before all levels of court, including the Ontario Superior Court of Justice, the Court of Appeal for Ontario, and the Supreme Court of Canada, to deal with issues involving all areas of family law to ensure that the law is applied in a fair and equitable manner. We pursue advocacy tenaciously in the courts, taking a practical and results-oriented approach to achieve the timely and cost-effective resolution of your dispute.

Alternatives to Court

There are four types of dispute resolution methods that are commonly used in family law, which can help you resolve your family law disputes outside of court. These include lawyer to lawyer negotiation, mediation, arbitration, and collaborative family law. Our family lawyers are skilled in using all of these methods of dispute resolution in support of our clients. You should feel free to ask your family lawyer about your options and discuss which alternative will be best for you.

Negotiation

Negotiation is probably the most flexible method of dispute resolution available to help resolve family law issues. While Ontario’s Family Law Act provides a default of people’s rights and obligations which arise out of a separation, there is nothing stopping separating couples from reaching their own agreement. This can be done directly with your former spouse or with the assistance of lawyers. Even if you find yourself in a court proceeding, you can still negotiate a settlement and resolve everything without the need to have your dispute resolved by a judge. It is always recommended that you get legal advice before agreeing to anything to ensure that your needs are being met.

Mediation

The mediation process can help resolve family disputes by having a third party Mediator assist and facilitate a negotiation between the parties involved. The goal is for the participants to reach an agreement with the Mediator’s help. The mediation process is normally confidential, and the mediator is impartial. A mediator cannot give either party legal advice or make a decision about your case. In other words, nothing in the process is binding on either person. Depending on the issue that needs to be resolved, mediators are most commonly lawyers, but can also be psychologists, social workers, or financial specialists.

Arbitration

Arbitration is a process used to resolve disputes by allowing a third party Arbitrator to make a final binding decision. The parties choose an Arbitrator and agree that they will follow the Arbitrator’s decision. Unlike a Judge, an Arbitrator is privately retained by both parties. The parties attend a hearing where they can call witnesses and provide documents to support their case. In many cases, arbitration may be less formal than a court proceeding and it may be much quicker as well. Some arbitrations are conducted entirely in writing. There are special rules surrounding the arbitration process, and you should always talk to a lawyer before agreeing to engage an Arbitrator.

Collaborative Family Law

In the collaborative family law approach, the parties and their lawyers attempt to problem solve together through a series of four-way meetings, with resolution of the dispute as the ultimate goal. The process is based on a contractual agreement that neither party will proceed to Court while in the collaborative process. It is interest based (as opposed to purely focused on legal rights) and solution oriented. The role of the lawyer in the collaborative family approach is to act as a legal advisor and coach to his or her client. You must engage family lawyers who are trained and certified to practice collaborative family law, such as Marta Siemiarczuk, a family law lawyer at Nelligan O’Brien Payne LLP. If an agreement cannot be reached, the parties will be required to retain new lawyers if the matter proceeds to Court. This encourages both parties to strive to resolve the issues.

Arbitration is an alternative to the traditional court process. At the end, separating couples will have a binding decision made by a third-party arbitrator, an impartial individual who has specific expertise in family law. This person sits in place of a judge.

How does family arbitration work?

How does family arbitration work? First, both parties must agree to the arbitration and sign a contract confirming their agreement. The actual arbitration process is similar to what happens in court. Evidence is given and witnesses may testify. The difference is: it is completely private, confidential and on your schedule. Lawyers are often part of the process, as many situations involve a significant understanding of the law. Some arbitrations may deal with less complex issues, where the parties can work directly with the arbitrator without lawyers. It’s up to you. Sometimes, Family Arbitration includes a process called Med-Arb or Mediation-Arbitration. In this process, you enter a contract to mediate your dispute first, and if no agreement is reached, you go straight to arbitration on the unresolved issues. Often the mediator becomes your arbitrator, however, sometimes (as is my practice) a separate mediator and arbitrator are used so that the person making the final binding decision is not privy to settlement discussions. I have teamed up with ASR Ottawa Family Law Mediators to provide Med-Arb services and you can check out who they are here.

Significant advantages of family arbitration include:

  1. Arbitration is private and confidential, unlike court proceedings which are on the public record;
  2. You can choose your arbitrator so you know she has the specific expertise your situation calls for;
  3. You will have input in formulating the process itself to suit not only your needs but the needs posed by your situation;
  4. Arbitration can be much less formal than court and arbitration can, in most cases, result in a decision within a much shorter period of time;
  5. You get a binding decision which can be enforced as a court order.

FAQ

For family law purposes, the separation of married or common law spouses occurs when at least one them knows for certain that the relationship has ended and there is no hope of reconciliation. It is not necessary that both spouses feel the same way, or that the spouse for whom the relationship is over explicitly informs the other spouse of his or her feelings. It is important, however, that the spouse for whom the relationship has ended behave consistently with this new reality, in case the date of separation becomes a contested point in resolving any property issues arising from the breakdown of the relationship.

Divorce for married spouses consists of a court Order dissolving their marriage. Most spouses resolve the parenting, property and support issues arising from their separation before obtaining a Divorce Order and, as a result, the ability to remarry is the most significant effect of divorce. As polygamous marriage is illegal in Canada, a newlywed who has been previously married must provide proof of his or her divorce by way of a Certificate of Divorce before a new marriage certificate can been issued.

If you have questions about divorce or separation, contact one of our experienced Family Law lawyers.

It is possible to be separated for family law purposes in Ontario while continuing to live under the same roof as your spouse.

Whether spouses have separated depends on whether at least one of them knows for certain that the relationship has ended and there is no hope of reconciliation. It is unnecessary for both spouses to feel the same way and, where they disagree, a court will consider several contextual factors to determine whether they were, in fact, separated at a given point in time. For example, the court will consider how the spouses behaved towards each other within and outside of the home; whether they participated together or separately in community activities; how they portrayed themselves to members of their families and their friends; how they arranged their finances; and how they conducted themselves towards their children, if any. Although living and sleeping arrangements are relevant in this analysis, they are not necessarily determinative. The spouses’ conduct towards each other both inside and outside of their home is often a stronger indication of whether they were separated on the contested date.

If you have questions about habitation and separation, contact one of our experienced Family Law lawyers.

Canada has a no-fault divorce system. The only ground for divorce is the breakdown of a marriage, which is normally established by showing that the spouses have lived separate and apart for at least one year. Either spouse can apply to the court for a divorce; the law does not require the consent of both spouses to grant a divorce. Spouses can also bring a joint application for divorce. Before granting a divorce, the court will ensure that there is no possibility of reconciliation between the spouses and that reasonable arrangements have been made for the support of any children of the marriage. If no arrangements are in place, or if the arrangements are inadequate, the court may delay the granting of a divorce until such arrangements are made. If the application before the court is only for a divorce, meaning there are no other claims being made, and the other spouse is not contesting the divorce, the process is usually paper-based. In most cases, there is no need for a hearing or actual attendance at court. If you have questions about obtaining a divorce, contact one of our experienced Family Law Lawyers.

The amount of child support payable is determined by looking at the Child Support Guidelines for the province in which the payor parent resides, or, if the payor parent resides outside of Canada, the province where the recipient parent resides. Child support is based on the number of children and the income of the payor parent.

Who a child lives with governs who pays support. Normally, the parent with whom the child lives with less than 40% of the time will pay support to the parent with whom the child lives with more than 60% of the time (regardless of who has a higher income). However, if the child spends approximately equal time with both parents, the support payable by each parent is calculated based on their respective incomes, and whoever has to pay the higher amount usually pays the other parent the difference.

In addition to regular monthly child support, section 7 of the Guidelines gives the court discretion to award extra payments for special and extraordinary expenses. These expenses are shared proportionally based on each parent’s income. Examples of these expenses include daycare, uncovered medical and dental expenses, and post-secondary education.

If you have any questions about the calculation of child support, contact one of our experienced Family Law lawyers.

Not necessarily. Child support is payable until a child reaches 18 years of age, but this obligation may continue if the child attends school on a full-time basis (usually until the end of their first post-secondary degree) or is unable for medical or other similar reasons to become financially independent. The question is one of dependency and is not strictly based on the age of the child.

The child support obligation may be interrupted if the child decides to temporarily interrupt his or her studies. The child support obligation will also be reduced in accordance with the child’s ability to contribute to his or her own needs by earning income from employment or by other means (such as scholarships) once he or she is over 18 years of age but still in full-time attendance at school.

In addition to regular monthly child support, section 7 of the Child Support Guidelines gives the court discretion to award extra payments on account of special and extraordinary expenses, which include post-secondary education. These expenses are shared proportionally based on each parent’s income, but an adult child will be expected to contribute to their section 7 expenses.

If you have questions about child support, contact one of our experienced Family Law lawyers.

Have Questions?

Our Team

Leader

Marta Siemiarczuk
613-231-8281
Partner
613-231-8240
Partner
613-231-8323
Lawyer
613-231-8335
Lawyer
613-231-8249
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613-231-8209
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613-231-8250
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613-231-8207
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613-231-8228
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613-231-8201

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