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Difference between revisions of "Interim Applications in Family Matters"
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Interim Applications in Family Matters (view source)
Revision as of 15:29, 2 March 2013
, 15:29, 2 March 2013→Common Interim Applications
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==Common Interim Applications== | ==Common Interim Applications== | ||
The following discussion reviews the basic facts that will usually need to be proven in support of the most common kinds of interim applications in family law matters. This is only a rough guide | The following discussion reviews the basic facts that will usually need to be proven in support of the most common kinds of interim applications in family law matters. This is only a rough guide; the particular facts that are important will change from case to case. | ||
===Care of Children=== | ===Care of Children=== | ||
When making the first application about custody and access, or parenting arrangements and contact, important facts will usually include: | When making the first application about custody and access under the ''Divorce Act'', or parenting arrangements and contact under the ''Family Law Act'', important facts will usually include: | ||
#the children's names, birthdates and ages; | #the children's names, birthdates and ages; | ||
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#a description of any actual problems with a parent's capacity to care for the children. | #a description of any actual problems with a parent's capacity to care for the children. | ||
If the application is to change an order | If the application is to change an ''order'' about the care of the children, important facts will include the facts which address the threshold legal test... | ||
#what | #what is the change in the child's needs or circumstances since the order was made; and, | ||
#how has this change has affected the best interests of the children. | #how has this change has affected the best interests of the children. | ||
...as well as other important facts such as: | ...as well as other important facts such as: | ||
#how has the order | #how the order had worked out; | ||
#did the parents follow the terms of the | #did the parents follow the terms of the order; and, | ||
#has the | #has the order met the children's needs and if not, why not. | ||
If the application is to set aside an ''agreement'' about the care of the children, important facts will include the facts which address the threshold legal test... | |||
#why the agreement is not in the best interests of the children. | |||
...as well as other important facts such as: | |||
#how the agreement has worked out; | |||
#did the parents follow the terms of the agreement; and, | |||
#has the agreement met the children's needs and if not, why not. | |||
===Child Support=== | ===Child Support=== | ||
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#whether some or all of the children are receiving child support from another parent; | #whether some or all of the children are receiving child support from another parent; | ||
#the nature of each parent's employment; and, | #the nature of each parent's employment; and, | ||
#each parent's employment | #each parent's income from their employment and and any other source. | ||
Applications about child support typically require that each parent cough up certain documents to establish his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are: | Applications about child support typically require that each parent cough up certain documents to establish his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are: | ||
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#corporate tax returns for the three most recent fiscal years; and, | #corporate tax returns for the three most recent fiscal years; and, | ||
#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses. | #a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses. | ||
If the application is to change an ''order'' about the child support, important facts will include the facts which address the threshold legal tests... | |||
#has there been a change that would cause a different amount of support to be paid under the Guidelines; | |||
#has there been a change in the needs and circumstances of the child; | |||
#have you discovered new evidence about income or a person's ability to earn income since the last hearing; or, | |||
#have you discovered proof that someone's financial disclosure was inadequate since the last order was made? | |||
...as well as other important facts such as: | |||
#each party's present income; | |||
#the child's continuing entitlement to receive child support; and, | |||
#updated information concerning any special expenses. | |||
If the application is to set aside an ''agreement'' about the child support, important facts will include the facts which address the threshold legal test... | |||
#should the court make a different order than what was agreed to? | |||
===Spousal Support=== | ===Spousal Support=== | ||
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#the arrangements that have been made for the care and control of any children. | #the arrangements that have been made for the care and control of any children. | ||
If the application is to change an order | If the application is to change an ''order'' about spousal support, important facts will include the facts necessary to address the threshold legal tests... | ||
# | #has there been a change in the means or needs of either spouse since the last order was made; | ||
#was | #have you discovered new evidence about income or a person's ability to earn income since the last hearing; or, | ||
#have you discovered proof that someone's financial disclosure was inadequate since the last order was made? | |||
...as well as other important facts such as: | ...as well as other important facts such as: | ||
#each party's income | #each party's present income; | ||
#each party's income at the time of the most | #each party's income at the time of the most last order; | ||
#the steps the recipient has taken to become financially self-sufficient; | #the steps the recipient has taken to become financially self-sufficient; | ||
#education or training taken by the recipient since the order | #education or training taken by the recipient since the order was made; | ||
#any employment taken by the recipient since the order or agreement was made; | #any employment taken by the recipient since the order or agreement was made; | ||
#any changes in the employment circumstances of the payor; | #any changes in the employment circumstances of the payor; | ||
#whether the recipient has remarried or is in a new | #whether the recipient has remarried or is in a new unmarried spousal relationship; and, | ||
#whether the payor has acquired new family support obligations since the order or agreement was | #whether the payor has acquired new family support obligations since the order was made. | ||
If the application is to set aside an ''agreement'' about spousal support, important facts will include the facts necessary to address the two threshold legal tests. Under the first test, you could include facts that show that there were problems when the agreement was negotiated: | |||
#a party failed to disclose relevant income, property or debt; | |||
#one party took advantage of the other party's vulnerability or ignorance; | |||
#a party didn't understand the nature of the agreement; | |||
#the agreement is unconscionable; or, | |||
#a party did not sign the agreement voluntarily. | |||
Under the second test, which you might use if you cannot show that there were problems when the agreement was negotiated, you could include facts that show the agreement is ''significantly unfair'' and talk about: | |||
#how long it has been since the agreement was signed; | |||
#any changes in the needs or circumstances of either party; | |||
#the parties' intention to have a final deal when the agreement was signed; | |||
#how important the agreement was to each party in planning their lives and arranging their affairs; and, | |||
#how closely the agreement meets the objectives that the court considers when it makes an order for spousal support. | |||
All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are: | All applications about spousal support typically require that each parent cough up certain documents to prove his or her income, in addition to a sworn Financial Statement. The most common of these documents for people who are employees are: | ||
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#a recent paystub or a letter from an employer confirming the terms of a party's income. | #a recent paystub or a letter from an employer confirming the terms of a party's income. | ||
People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or | People who have income from EI, WCB, CPP or social assistance, will also have to produce their three most recent statements or chequestubs from their payments. People who are self-employed in an unincorporated business will also have to produce: | ||
#statements of professional or business income; a | #statements of professional or business income; a | ||
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#a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses. | #a statement showing a breakdown of all payments to non-arm's-length parties like relatives, children or spouses. | ||
===Restraining Orders=== | ===Protection and Restraining Orders=== | ||
The court can make a number of orders where someone is in need of protection, depending on what the | The court can make a number of orders where someone is in need of protection, depending on what the circumstances are and which order makes the most sense. More information about these orders can be found in the _______ chapter. | ||
The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the chapter | The court can also make orders designed to protect assets from being sold, hidden or used as collateral for a loan. More information about these orders can be found in the _______ chapter. | ||
==Further Reading in this Chapter== | ==Further Reading in this Chapter== | ||
