Years of Experience
Guiding You Through Difficult Family Disputes
Our firm represents clients involved in family law court cases, whether the issues involve parenting, child support, spousal support, or the division of property. Most family disputes can be resolved through negotiation or mediation. Family court is often the best option when there is an urgent issue, a safety concern, or an inability to agree on the terms of a domestic contract.
Berry Family Law provides strategic and effective emergency legal representation to address relocation, domestic abuse, or urgent financial issues such as an asset freeze or the sale of the matrimonial home. We can assist with mobility and relocation matters, child support, spousal support, equalization of net family property, divorce, and fair property division following separation for unmarried couples.
A Practical Approach to Court Proceedings
When negotiation or mediation has failed, and a stalemate is reached, court is sometimes the only way forward. If a judge is making decisions about your children, finances, and property, you need a family lawyer who understands both the law and the realities of modern-day life.
In Ontario, a court case involves many steps, including conferences, motions, and ultimately, a trial. To succeed in family court, you need both the facts and the law on your side, while also following the procedural requirements that ensure your case is properly heard. At Berry Family Law, we have years of experience handling cases in courthouses across Ontario.
Our goal is not to take every court matter to trial. Our goal is to advance your case at every stage and help you achieve the best possible outcome. We empower you with the information and strategic analysis needed to make important decisions, whether that means making or accepting an offer to settle or receiving passionate and effective advocacy at trial.
Frequently Asked Questions
Separation & Divorce
The separation process starts when one partner makes it clear, either in words or actions, that there is no possibility of reconciliation. This might mean telling your partner in a family meeting, writing them a letter or having a lawyer write them a letter, or just moving out. When a separation happens, the issues around parenting, child support, spousal support and property need to be worked out through negotiation, mediation or family court. In general, once the issues are resolved, an application to the court can be made for a divorce, unless the court permits the divorce to proceed while the other issues are dealt with in court. If you want to separate, but have not yet told your partner, it is a good idea to consult with a family lawyer in advance. If you are separated and need to start working towards a resolution, trying mediation or negotiation before starting a family court action is advisable except in emergencies.
If you and your spouse have agreed on everything, you should still have a family lawyer prepare a Separation Agreement, so that the agreements are legal and binding. If you are legally married and want to apply to court for a divorce, the Separation Agreement is proof that you have resolved the child support issues, which is the number one reason the Ontario Court rejects an application for divorce. Much of the cost of separation and divorce arises when there is no agreement on fundamental issues like parenting or division of property. If you and your spouse have agreed on everything, a simple Separation Agreement is a very good idea.
Separation applies to both common-law and married couples and starts when there is no possibility of reconciliation. The separation marks the end of the relationship and, whether you are married or not, you will need to resolve parenting, support and property issues. All of these issues can be resolved without the involvement of a family court. If you are married, you need to apply to the court for a formal Divorce Order. The difference between being separated with a Separation Agreement and fully divorced is that you will be in a position to marry again.
The time that it takes to negotiate the resolution of parenting, child support, spousal support and property issues are very different for different people. The complexity of the family situation and amount of conflict impacts the amount of time. Once these issues are resolved, which can take a few months to many years, the uncontested divorce process is relatively quick and simple. You can apply for a divorce after one year of separation, and the application proceed is usually 3 – 6 months from start to finish.
If your spouse will not negotiate the terms of a Separation Agreement and refuses to sign any paperwork to permit a divorce to proceed, you will need to start a case in family court. As we have no-fault divorce, both spouses to not have to agree on a separation or divorce, and no one need to prove a reason like adultery or cruelty in order to obtain a divorce.
No, you can be living separate and apart while continuing to reside in the same home. The key point is that it has been communicated that the relationship is over and that there is no possibility of reconciliation.
Your entitlements at the time of separation depend greatly on your family’s circumstances.
Both spouses are entitled to continue living in the matrimonial home after separation, even if your name is not on the title to the home. A court can order “exclusive possession of the family home” if there are issues about domestic violence, ongoing conflict that is impacting the children, or one person is refusing to move forward with selling the home.
Married couples divide the property acquired during the marriage equally, with the exception that inheritances, life insurance and damages arising from personal injury are not divided if they are kept separate from family assets. The exception to this is the matrimonial home, which is divided equally even if one party owned the home at the time of marriage. There are also exceptions for very short marriages, if one spouse recklessly incurred depleted property or for couples who have a Marriage Contract.
In the process of dividing property for both married and common-law spouses, joint debts will be either paid off by both parties or one party will have to legally assume the debt. A good example is when one spouse keeps the matrimonial home. When the property is divided, the spouse keeping the house will have to assume the full mortgage and obtain a release or refinance. Joint credit cards need to be paid off, with the date of separation balance being equally shared regardless of who incurred the expenses. After the date of separation, each spouse is responsible for their own expenses even if incurred on a joint credit card or line of credit.
Quite simply, yes. First, because if you do not, there is no basis for negotiating an agreement and your spouse will be left with no option but to take you to family court. Second, because if you negotiate a Separation Agreement but did not make full and frank financial disclosure, that agreement can be set aside in the future.
Spousal Support
The answer to this is “It depends”. Common-law spouses have the right to seek spousal support after living together for three years. Married couples have the right to seek spousal support no matter the duration of the marriage. However, entitlement to spousal support is a complicated issue. There are two kinds of spousal support – compensatory spousal support and needs-based spousal support. Compensatory support is payable when one spouse sacrificed their own career for the benefit of the family, such as leaving the workforce to provide childcare. Needs based spousal support is determined based on the duration of the relationship, the income difference between the spouses and the needs of both spouses to enjoy a lifestyle similar to what the family enjoyed during the relationship.
The amount of spousal support you will pay is dependent on a number of factors, including the incomes of both parties, the child support arrangements, the roles and responsibilities of the spouses during and after the relationship and the obligation of the recipient to become as self-supporting as is practicable in a reasonable amount of time. The Spousal Support Advisory Guidelines calculate a low, mid or high range, and the spouses or a judge decided the range that is appropriate considering factors such as budget, health issues, and the recipient’s ability and plan to increase their post-separation income.
After a short relationship, less than 5 years, you can expect to pay relatively low, short-term support, in a relationship between 6-19 years, half a year to a year of spousal support for each year of marriage and in a 20 plus year relationship, the duration of support does not have a hard termination date but is reviewed when there is a change such as retirement. Spousal support is determined in accordance with the Spousal Support Advisory Guidelines and is one of the most complex issues in family law.
If a support payor or a support recipient refuses to work, a court can order support in accordance with “attributed income”. So even though a payor is not earning income, they can end up with a support obligation if they are intentionally under or unemployed.
At the time of retirement, if you have a spousal support obligation, a review of the income, needs and means of each party is done in order to determine if any further support should be paid after retirement. The support obligations are determined in accordance with the Spousal Support Advisory Guidelines. Another option is that the spouses may negotiate a lump sum spousal support amount to satisfy support obligations after both parties turn 65 and their respective retirement incomes and savings are know.
Spousal support may be paid in a lump sum or a periodic amount. A lump sum is a one-time non-taxable cash payment that represents the entire spousal support obligation. Once a lump sum payment is made, it cannot be changed at a later date, even if it turns out support was under-paid or over-paid. If periodic support is being paid, it may be changed in the future when a material change occurs, such as a change in income, a change in child support, retirement or cohabiting with a new spouse.
Child Support
Child support is calculated with the Child Support Guidelines, whether you are a common-law or married couple. There are two kinds of child support: table support and special expenses. Table child support covers the children’s basic expenses: housing, food, regular clothing, day-to-day expenses for school and activities. Child support is determined in accordance with the children’s schedule and the payor’s income. If the children live more than 60% of the time with one parent, the other parent will pay full table child support in accordance with their income. If the children live approximately equally with both parents, each parent pays the other table child support so that the end result is the higher income earner pays the “set-off amount”. In some circumstances of shared parenting, when one parent is covering the majority of the children’s basic expenses, the set-off amount may be varied.
Special expenses including medical and dental expenses including the cost of extended benefits plans (the children’s portion only), childcare expenses necessary for a parent to work, extraordinary school expenses such as private school tuition or tutoring, extraordinary extracurricular expenses such as rep sports and post-secondary expenses. Special expenses are shared on a proportionate basis, on a net cost basis. As an example, orthodontics are shared after the reimbursement from a benefits plan, and after any medical tax credits are factored in. If one spouse has income of $55,000 and the other has income of $45,000, they will share the expenses 55% to 45%. Spousal support is considered the income of the support recipient. Special expenses can be particularly difficult to manage in a high conflict separation because of the amount of agreement, accounting and review required on a regular basis as the children’s needs and interests change.
If the children live approximately equally with both parents, each parent pays the other table child support so that the end result is the higher income earner pays the “set-off amount”. In some circumstances of shared parenting, when one parent is covering the majority of the children’s basic expenses, the set-off amount may be varied. The review to determine if the set-off amount is correct involves analysis each parent’s “Children’s Budget” or the amount of their household income spend on the children’s needs. Generally, for ease, most parents agree on the set-off amount, but it is important to also share the children’s basic expenses such as clothing, regular school expenses such as pizza days and field trips, back to school supplies, and regular activity expenses such as birthday parties more or less equally. Otherwise the set off amount can be an unfair disadvantage to the parent who takes on these day to day financial responsibilities.
If your ex will not disclosure their income, you will likely need to start a court application. In the absence of income disclosure, a court will made an “adverse inference”, meaning the judge will draw a conclusion that is not favourable to the person who failed to produce evidence. The court has the power to attribute income to a support payor when they have not disclosed their income, or if they are intentionally under or unemployed. If you are trying to prove your ex’s income in the absence of their own disclosure, there are a number of ways to do so including a lifestyle analysis, a review of past-income or by obtaining third party documentation from employers.
Child support is adjusted annually in accordance with current income, which in practise is last year’s income. In general, proof of income is exchanged in May after income taxes are filed. In June, parents review and agree on the new child support amounts and the new amount starts in July. However, if there is a material change such as a loss of employment mid-year, a full review of child support can be requested and a new amount of support ordered.
Parenting Time & Decision-Making Responsibility
Recently there were significant changes made to Canadian family law legislation which changed the terms custody and access to decision-making and parenting time.
Custody is now called decision-making, and decision-making means having the authority to make important decisions about the child’s health, education, culture and religion and extra-curricular activities. Decision-making authority may be shared, bifurcated (meaning one parent has final decision in certain areas like education or religion and the other parent has final decision in the other areas like education and extra-curriculars) or one parent has sole decision making.
Access is now called Parenting-time and is the residential schedule for the children. Parenting-time may be shared, primary with one parent or flexible.
Decision-making does not include the authority to change the parenting schedule or to relocate with the children.
Courts determine decision-making and parenting time in accordance with the children’s best interests. This includes considering the child’s views and preferences. A court may request the involvement of the Office of the Children’s Lawyer (OCL) to provide a report making recommendations about the parenting arrangements after having interview the parents, the children, done observational visits and contacted third parties like doctors, teachers and therapists. The OCL may also provide a Voice of the Child report to inform the court of the views of the children. If the OCL is not an option, the parents may hire a private professional to provide these services. This does not happen in every case. Each parent can present evidence supporting what they believe is in the best interests of the children. Only in rare circumstances does a judge meet with the children. After considering all the evidence, a judge will apply the Best Interests Test and make a decision about parenting time and decision-making authority.
It depends. Getting sole decision-making authority for your children is possible in the event there was no history of making joint decisions for the children, a current level of high conflict or the inability of one parent to prioritize the children’s best interests. An alternative to sole custody is “final decision-making after consultation”, so that there is a process of discussion and an attempt to reach a joint decision, and in the event there is no agreement, one parent makes the final decision.
If a parent will not take the children during their scheduled parenting time, there is no enforcement mechanism. The only outcome is that the parent with the child will be entitled to full table child support.
If a parent is withholding a child from scheduled parenting time, it is possible for the court to order compliance and in rare instances, reverse parenting time, impose a no contact period, order police enforcement of the parenting schedule or impose a penalty on the withholding parent at a contempt hearing.
Unless you have a court order granting you the authority to travel outside of Canada without a travel letter, you should not be crossing the border with your children when only one parent is travelling, whether you are married, separated or divorced.
If you cannot obtain a travel consent because you have lost contact with the other parent, you can obtain a court order waiving their consent to renew passports and travel across outside of Canada.
If you cannot obtain a court order because the other parent is unreasonable refusing to allow you to vacation with the children, you can obtain a court order permitting such travel.
If your child does not want to go to the other parent’s home, it is important to make best efforts to ensure that any court order or Separation Agreement is being followed. If the existing arrangement for the children are not working, there are several approaches that may resolve the problem.
First the issue of child abuse or neglect needs to be investigated and ruled out as the reason for the refusal for parenting time. If it is not a case of abuse, reunification therapy for the rejected parent and the child to improve their relationship is an option. If it is a case of abuse, it may be necessary to implement supervised parenting time or, in extreme cases, a no contact order.
It is important to recognize that unreasonable withholding a child from parenting time with your ex is not viewed favourably by family courts. If you do withhold a child without obtaining a new parenting plan or court order setting out a new parenting schedule, a court may determine you are intentionally undermining the other parent’s relationship with the child. The balance between protecting your children and fostering a good relationship with the other parent after separation is a very delicate balance. It is very advisable to consult a family law lawyer in this situation.
Mobility / Relocation
If you are planning to move to a new city, province or country and you have a parenting schedule that will be impacted by the move, you need to provide the other parenting with a Notice of Relocation 90 days in advance of the planned move. If the other parent consents or does not respond to the Notice, then you have the right to relocate.
If the other parent refuses to consent to a relocation, you will need to commence a court action to obtain leave from the court. In a mobility case, the court will permit the move if it is in the best interests of the children.
You must provide 90 days notice before relocating. If you do not, and you move without consent or a court order, it is likely that you will be ordered to return the children.
Domestic Violence & Safety
You can apply to the court for a restraining order if you fear for your safety or your children’s safety.
How the court decides:
The court will review the evidence you provide and decide whether an order is appropriate.
What the order can require:
If granted, the order may require the other person to stay away from you, your home, your workplace, or your children.
Domestic violence includes more than physical abuse. It can involve threats, harassment, sexual abuse, emotional or psychological abuse, financial control, stalking, intimidation, and other coercive or controlling behaviour that causes fear or harm.
If you or your children are at risk, leaving the home may be appropriate for safety reasons. However, because it can affect future parenting arrangements, you should seek legal advice as soon as possible after leaving.
Evidence may include:
• police reports;
• medical records;
• photographs of injuries or property damage;
• threatening texts, emails, or voicemails;
• witness statements; and
• records of previous incidents.
If you have limited evidence:
You may still be able to apply based on your sworn testimony.
Court Process & Dispute Resolution
Not necessarily, as many disputes are resolved through negotiation, mediation, or other forms of dispute resolution before reaching a courtroom. Whether court becomes necessary often depends on the nature of the disagreement and whether the parties can reach an agreement on their own. A lawyer can help you understand the options that may apply to your particular situation.
In simple terms, a case conference is a meeting with a judge at the court that helps the parties and the court identify the issues in dispute and explore whether some or all of them can be resolved. If issues cannot be resolved, then the focus becomes the exchange of information (disclosure) or expert reports that are necessary to decide an issue. A judge cannot make a decision at the conference, expect on consent or in urgent circumstances, and the conference is “off the record”, meaning the information and discussions are not to be used as evidence at motions or trial. The specifics can vary depending on the type of case and the court involved.
Mediation and litigation each have different features, and which is more suitable depends on the circumstances, the relationship between the parties, and the issues involved. Mediation is often less formal and can allow parties more control over the outcome, while court provides a binding decision from a judge. Discussing your circumstances with a legal professional can help you weigh the considerations.
Costs can vary widely depending on the complexity of the matter, the steps involved, and how the dispute is ultimately resolved. Some matters are settled relatively quickly, while others may involve more extensive steps that affect the overall cost. We’re happy to discuss how fees and costs are typically structured during a consultation.
The length of the matter depends on many factors, including its complexity, the cooperation of the parties, and court availability. Some disputes resolve in a matter of months, while others can take considerably longer. A consultation can give you a clearer sense of what to expect in your circumstances.