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Summary LSO Licensing Exam Hack - Self Study notes - Family law - 36 pages CA$34.96   Add to cart

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Summary LSO Licensing Exam Hack - Self Study notes - Family law - 36 pages

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Welcome to the first of the two-part LSO Licensing Exam hack. The LSO Licensing Exam Hack (Barrister) series is a self-created, comprehensive, well-organised and neat summary and study notes containing all five subjects: - Professional Responsibility - Civil Litigation - Criminal Law -...

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  • September 25, 2022
  • 36
  • 2022/2023
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LSO - Barrister & Solicitor – Family law LSO - Barrister & Solicitor – Family law


Table of Contents 50 Procedure and the Family Law Rules
50 Procedure and the Family Law Rules 2 58 Enforcement of support orders 38
 1. Consultation
51 The law of divorce 15 59 The tax principles of family law 40
 2. Negotiation
60 Alternative dispute resolution in
52 Parenting orders 18 50  2.1 Introduction
family law
53 Matrimonial property 22 61 Domestic contracts 54  2.2 Effective negotiation
62 Representing a victim of domestic  3.The litigation process
54 Child support 26 56
abuse  Assuming negotiation does not produce an agreement and ADR is not pursued, one party may
commence a court case to change the status quo.
55 Spousal support 30 63 Child protection law in Ontario 59
 3.1 Important changes to terminology
56 Cohabitation 34 64 Aboriginal law in a family law context 67  Custody --> decision-making responsibility
57 Financial disclosure in family law matters 35 65 The Change of Name Act 67
 Access --> parenting time
 3.2 Jurisdiction
Glossary
 In ON, three courts deal w/ family law matters:
The Law Society of Ontario / Law Society of the ♕: ♕ Canada / Canadian: CA  the Family Court of SCJ
Ontario: LSO year: yr alternative dispute resolution: ADR  SCJ; and
Chief Executive Officer: CEO Witnesses: Wes maximum: max
the Rules of Civil Procedure: RCP Witness: W minimum: min  OCJ.
Lawyer / Licensee: L Corporation: corp person: 人  The Family Court of SCJ is a specialized court that deals w/ all aspects of family law. This
Client: C the Judge: J' Common law: CL court can be found throughout ON and provides specialized judges and additional
By-Law / By law: BL Plaintiff: P> the Federal Court: FC services.
Government: gov Claimant: C> the administrative decision maker: ADM
people: ppl Defendant: >D administrative law: AL  In areas of ON that do not have a Family Court of SCJ, SCJ is the court of superior
Organization: org' Ontario: ON
Information: info
Minister of: M of jurisdiction.
examination: exam' Beyond a reasonable doubt: BaRD
third party: 3P Respondent: >R United States: The U.S.
 In the family law context, this court deals w/ the issues of property, divorce, parenting
business: biz ,000,000 m orders, and support. It does not deal w/ child protection or adoption proceedings.
Dispute resolution: DR
between: b/w ,000: k
with: w/ days: d'
Family Law Act: FLA  OCJ deals w/ the issues of parenting orders, support, child protection, and adoption. It
Divorce Act: DA
without: w/o documentation / documentary / document: Department of Justice: DoJ does not deal w/ divorce or property issues.
Criminal Code / "The Code": CC doc
the Ontario Court of Justice: OCJ
Principle of Natural Justice: PNJ  3.3 The primary objective
Evidence Act: EA Charter of Rights and Freedoms: Charter
the Superior Court of Justice: SCJ preliminary: prelim common law: CL
 At each step in the case, the court is required to promote the primary objective, which is
the Supreme Court of Canada: SCC the Small Claims Court: SmallCC to enable the court to deal w/ cases “justly”
Principles of natural justice : PNJ
the Attorney General: AG juridical review: JR CJA: CJA  3.4 The application
judicial review: JR ON: Ontario balance of probabilities: BoP
Divisional Court: DC British Columbia: BC  Unless a party asks the court to change an order or an agreement for support filed under s.
the Court of Appeal: CoA United Nations: UN
the Trial Judge: TJ
35 of the FLA (FLA) (which requests are commenced by notice of motion and affidavit and
Youth Criminal Justice Act
are governed by R. 15), a 人 starting a case files a doc called an “application” and, if required,
A step-by-step guide to hacking the licensing exams a summary of court cases.
 There are six different application forms, depending on the case.
1. Read this thoroughly, understand this material fully  In the event an applicant seeks property, spousal support, or child support (unless the
2. Try practice questions (timed!) with the LSO materials, not this one.: I used this one: applicant is only seeking child support in the Table amount specified in the Child Support
https://accessbarprep.com/ pretty good but I'm sure others are fine too; make sure you try a full-length sample Guidelines), the application must be accompanied by a financial statement
exam, at least one for each exam  If an applicant seeks a parenting order, the application must be accompanied by an affidavit
3. Go over wrong questions and understand them fully. pursuant to R. 35.1. In the Form 35.1 affidavit, the applicant must set out a detailed plan for
4. LSO website also have a couple of sample questions you should try: https://lso.ca/becoming-licensed/lawyer- caring for the child as well as provide the names of the ppl w/ whom the applicant plans to
licensing-process/licensing-examinations/sample-examination-questions live, whether the applicant has ever been criminally charged, and whether the applicant has
5. I didn't create my own TOC and solely relied on Law Society materials for the exam, they are detailed enough been involved in any other family law litigation, including child protection litigation.
for exam purposes. DO NOT bring this material to the exam site except for illustration purposes. You need  If the applicant is under a disability and unable to provide instructions, the court may
proper a DTOC!
authorize a 人 to represent that “special party”; the 人 must be appropriate for the task and
6. If you do all of the above, I am 100% sure you'll pass.
willing to act as a representative (r. 4(2)). If there is no appropriate 人 willing to act as a
special party’s representative, the court may authorize the Office of the Children’s L or the
Office of the Public Guardian and Trustee to act as the representative, but only w/ that
office’s consent


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,LSO - Barrister & Solicitor – Family law LSO - Barrister & Solicitor – Family law


 If an applicant wishes to retain a L but cannot afford one, that applicant may be entitled to  1) f the applicant does not know where >R lives or works or knows where >R lives or
legal aid. The applicant must first apply to LAO. works but is unable to effect special service for other reasons (e.g., because >R is
 3.5 Service requirements evading service), the L can apply for an order for substituted service. Substituted
 3.5.1 Special service service is effected when the court orders that the docs may be served on a 人 other
 Once filed and successfully issued, the application must be served immediately on every
than >R in the expectation the 人 will bring them to >R’s attention
other party by “special service” unless otherwise provided (r. 8(5)).
 Special service is carried out by:  2) If all efforts to serve >R by special service have failed and there is no reasonable
 leaving a copy w/ the opposing party, called >R (but note rr. 6(3)(a)(i)–(v) for service expectation that an order for substituted service would bring the docs to >R’s
on mentally incompetent ppl, children, corps, and children’s aid societies); attention, an order that service is not required (i.e., dispensing w/ service) should be
applied for
 leaving a copy w/ >R’s L of record or w/ a L who accepts service in writing on the
doc (r. 6(3)(b));  3) When a doc has been served by a manner not approved of in the Rules but the
court is convinced the docs still came to the attention of >R or would have had >R
 mailing a copy to >R and having >R send back a signed “acknowledgment of service”
not evaded service, the court can make an order approving “irregular” service (i.e., an
(r. 6(3)(c) and Form 6); or
order validating service)
 leaving a copy at >R’s residence w/ anyone who appears to be an adult and mailing
another copy to the same address that day or the next day (r. 6(3)(d)).
 3.6 Automatic order
 Under R. 8.0.1, w/ every new case filed on or after February 1, 2022, that contains a claim for
 3.5.2 Regular service
decision-making responsibility, parenting time, equalization, a matrimonial home, or support, the
 After a case has been properly commenced and >R has been served w/ the originating
court automatically issues, along w/ the application (or motion to change as the case may be), an
process (be it an application or a motion to change), service of further court docs may be
“automatic order,” which must be served on the other party.
carried out by “regular service.”
 Automatic order provides:
 Regular service is carried out by:
 After the initial pleadings have been served, all docs may be served by regular service, which
 mailing a copy to the 人’s L or, if none, to the 人 (service is “effective” in such case on
includes email unless special service is required by the Rules.
the fifth day after it was mailed) (rr. 6(2)(a) and (7));  Each party who has email shall include an up-to- date email address on all docs filed w/ the
 sending a copy by same- or next-day courier to the 人’s L or, if none, to the 人 court.
(effective in cases of same-day courier the day after the courier picks it up and, in  Each party shall attend a mandatory info program session w/in 45 days of the automatic
the case of next-day courier, two days after the pickup) (rr. 6(2)(b), 6(8)(a), and (b)); order, subject to an exception in R. 8.1.
 depositing a copy at a doc exchange to which the 人’s L or, if none, the 人 belongs  If an application, answer, motion to change, or response to motion to change contains a
claim for child and/or spousal support, a property claim, or a claim for exclusive possession
(effective the day after the day the docs are “date-stamped”) (rr. 6(2)(c) and (9));
of the matrimonial home and its contents, the responding party shall serve and file a
 if the 人 consents or the court orders, using an electronic doc exchange (effective financial statement subject to any exception in R. 13.
the date shown on the “record of service” or the day after if the record of service  Where a claim for support has been made, the responding party shall also serve certain
shows the docs were served after 4 p.m.) (rr. 6(2)(c.1) and (10)); listed docs along w/ the financial statement, including tax returns and notices of assessment
 faxing a copy to the 人’s L or, if none, to the 人 (effective on the date shown on the for the past three most recent yrs; proof of total earnings in the yr to date where the party is
an employee; and where the party is self-employed, biz financial statements and a statement
first page of the fax unless served after 4 p.m., in which case service is effective the
showing a breakdown of all salaries, wages, management fees or other payments or benefits
following day) (rr. 6(2)(d) and (11)(a)); or
paid to or on behalf of 人 s or corps w/ whom the parent or spouse does not deal at arm’s
 if the 人 consents or the court orders, emailing a copy to the 人’s L or, if none, to the
length.
人 (as w/ fax, effective on the date shown on the first page of the email unless
 A certificate of financial disclosure shall be served w/ the financial statement and docs and
served after 4 p.m., in which case service is effective the following day) (rr. 6(2)(e) filed in court six days prior to the case conference in the case of the applicant or moving
and (11)(b)). party and four days in the case of the other party.
 Ls should note that service by email is only effective for regular service, not special service,  3.7 The continuing record
and only after receiving confirmation in writing that the 人 being served consents or the  The continuing record contains all of the docs filed in a particular case. The 人 who starts the case
court orders it must file the record, serve it on the other party, and file it was served.
 3.5.3 Proof of service  The continuing record consists of two volumes: an endorsements volume and a docs volume.
 Service of a doc may be proved by an acceptance or “admission” of service, written  The endorsements volume contains a cumulative table of contents, an endorsements section, and
by the 人 to be served or the 人’s L; an affidavit of service as per Form 6B; the return an orders section. The docs volume contains all the docs filed in the case.
of a special postcard as per r. 6(3)(c); or the date stamp on a copy of the doc served by  Under the court clerk’s supervision, the parties are jointly responsible for adding to the record (r.
deposit at a doc exchange 9(11)) and must maintain it according to the requirements set out in the publication entitled
 3.5.4 Issues w/ service “Formal Requirements of the Continuing Record under the Family Law Rules,” published by the
 If >R cannot be served by special service, the applicant has three options. Family Law Rules Committee and available on the ON Court Forms website.
 3.8 The First Appearance Court and mandatory info program

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,LSO - Barrister & Solicitor – Family law LSO - Barrister & Solicitor – Family law


 In those areas in ON where the Family Court branch of SCJ does not exist, the jurisdiction over  If no answer has yet been filed, an applicant may amend the application w/out any permission
family law disputes is divided b/w SCJ and OCJ. from the court. If the answer has already been filed, consent from the other side must be
 Cases that have divorce or property claims are brought exclusively in SCJ, and child protection obtained, absent which an order from the court will be required
and adoption cases must be commenced solely in OCJ.  Courts will allow an amendment unless the amendment would disadvantage the other party in a
 In those places where the Family Court branch of SCJ has been established, there is no divided way for which costs or an adjournment would not compensate
jurisdiction in family law matters. It exercises a single, comprehensive jurisdiction over all legal  Once >R receives an amended application, >R has 14 days to serve on the other side and file w/
matters and disputes related to the family. the court an amended answer. If the application has not been amended and >R wishes to
 When an application is filed in SCJ or Family Court of SCJ, whether a court date is set depends on amend >R’s answer, this may be done provided the applicant consents
whether the case is “standard track” or “fast track.” Applications that contain a claim for divorce  3.12 Additional financial disclosure
or a property claim are standard track (r. 39(7)); all other cases are fast track.  In an effort to better ensure that prior to the case conference the parties are as fully prepared as
 In a standard track case, the clerk does not automatically set a court date when the application is possible, the Rules require a party to serve w/ the financial statement certain info, unless the
filed. The applicant waits until >R has been served and has filed an answer before the next step is court orders otherwise.
taken, namely, the booking of a case conference.  3.13 The case conference
 In OCJ, the first court date is always before a court clerk called the First Appearance Court (FAC).  W/ certain exceptions (see r. 14(6)), no motion may be heard and no notice of motion may be
The clerk’s role under r. 40(4) is to served until a case conference dealing w/ the substantive issues in the case has been completed,
 confirm that all the necessary docs have been served and filed; unless there is a situation of urgency or hardship or a case conference is not required for some
 refer the parties to sources of info about the court process, alternatives to court other reason in the interest of justice
(including mediation), the effects of separation and divorce on children, and  A case conference allows the litigants and their Ls to hear a judge’s views on the case at an early
community resources that may help the families; stage, before thousands of dollars are spent on motions and other expensive steps.
 if no answer has been filed, send the case to a judge for a final decision on the basis of  The party who seeks the case conference must serve and file a case conference notice
affidavit evidence or, on request, schedule a case conference; and  A judge must conduct at least one case conference in every case where an answer is filed
 if an answer has been filed, confirm that the case is ready for a hearing, case  In a child protection case, a case conference may be conducted if a party requests it or if the court
conference, or settlement conference and schedule it accordingly. considers it appropriate
 In practice, in almost every case where both parties are represented, upon completion and faxing  A case conference is even required for a motion to change an order or agreement under R. 15
of the appropriate form, the FAC is waived, and the parties are given leave to proceed straight to  A case conference is not required but may be held at a party’s request or on a judge’s direction in
a case conference. an enforcement case or in a request to enforce a family arbitration award under R. 32.1
 In most courts, if there are claims other than a divorce (and costs) or the incorp of the terms of an  Unless the court orders otherwise, the parties and their Ls must attend the case conference (r.
agreement or prior court order, litigants must attend a Family Info Session (FIS). Unless a party 17(15)). Failure to attend a conference could lead to costs or any other order the court may be
provides a certificate that the party has attended an FIS, the party may not take any further step inclined to make (r. 1(8)).
in the case  For each case conference, each party must serve and file a case conference brief in Form 17A or
 In some Superior Courts, including all Family Courts in the Greater Toronto Area, in any case 17B (r. 17(13)).
where a party seeks to change a final order on parenting or financial issues, the first step is called  The party requesting the conference must file the brief not later than six days before the date
a “DR Officer” hearing. This is a session presided over by a senior family law L who reads all of the scheduled for the conference, and the other party must do so not later than four days before that
materials and offers the parties an opinion on the likely outcome of the case and guidance on date
possible avenues of settlement.  the briefs are “filed” in the sense of being included w/ the court file J reads but not inserted into
 3.9 The answer the continuing record.
 >R must serve an answer on every other party named in the application and file it w/in 30 days  Not later than 2:00 p.m. three days before the conference date, each party is required to file a
after being served (r. 10(1)). If the application is served outside CA or U.S., the time for filing an Form 17F, confirming they have conferred or attempted to confer w/ the other party about the
answer is 60 days (r. 10(2)). issues in dispute and informing the court of the estimated time the conference will take and the
 A >R may include a claim against the applicant or any other 人, who then also becomes a >R in the key issues in dispute; Failure to file the Form 17F may lead to the conference not proceeding
case (r. 10(3)).  Under r. 17(8), at a case conference (or settlement conference or trial management conference), J
 As w/ an application that includes a claim for a parenting order, the answer to such an application may, if it is “appropriate” to do so,
must be accompanied by a Form 35.1 affidavit (rr. 10(4.1) and 35.1(2)).  make an order for doc disclosure (R. 19), questioning (R. 20), or filing of summaries of
 The consequences for >Rs who fail to file an answer are severe. They are not entitled to any argument on a motion, set the times for events in the case, or give directions for the
further notice of any steps in the case or to participate in the case in any way. The court may then next step(s) in the case (r. 17(8)(a));
deal w/ the case in their absence and set a date for an uncontested trial (r. 10(5)).  make an order respecting the use of expert W evidence at trial or the service and
 3.10 Reply filing of experts’ reports (r. 17(8)(a.0.1));
 After >R serves an answer, the applicant has 10 days in which to serve and file a reply (r. 10(6)  make an order requiring the parties to file a trial management endorsement or trial
and Form 10A). scheduling endorsement in a form determined by the court (r. 17(8)(a.1));
 Counsel need only respond to any issue in the reply not already fully canvassed in the application.  make an order requiring the parties or one of them to attend a mandatory info
 3.11 Amendments to pleadings program, a further conference including a conference before a DRO, an intake


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, LSO - Barrister & Solicitor – Family law LSO - Barrister & Solicitor – Family law


meeting w/ a court-affiliated mediation service, or a program offered through any  prior to bringing any motion before a case conference, the moving party should establish both of the
other available community service or resource (r. 17(8)(b)). following:
 In addition, under r. 17(8)(b.1), if notice has been served (which notice may be effected by  An early or urgent case conference could not be obtained from the case conference
indicating as such in the appropriate box in the conference brief), a court may make a final or coordinator.
temporary order at a case (or settlement or trial management) conference to facilitate the  The moving party has attempted to resolve the supposedly critical situation.
preservation of the rights of the parties until a further agreement or order is made  3.14.1 W/out-notice motions
 relating to the designation of beneficiaries under a policy of life insurance, RRSP,  W/out-notice motions are rare since their very nature is contrary to the fundamental principle that before
trust, pension, annuity, or similar instrument any order is made, any party affected by the order should have a full opportunity to know what is being sought
 preserving assets, either generally or particularly and to respond fully
 prohibiting the concealment or destruction of docs or property  sometimes certain facts give rise to one party bringing a w/out-notice motion. The Rules provide that such a
 requiring an accounting of funds under the control of one of the parties motion may be made in any of the following circumstances (r.
 preserving the health and medical insurance coverage for one of the parties and the  The nature or circumstances make notice unnecessary or not reasonably possible
children  There is an immediate danger of a child’s removal from ON, and the delay involved in serving a notice of
 continuing the payment of periodic amounts required to preserve an asset or a motion would probably have serious consequences
benefit to one of the parties and the children  There is an immediate danger to the health or safety of a child or of the party making the motion, and the
 At a case conference, J may also make an unopposed order or an order on consent (r. 17(8)(c)) delay involved in serving a notice of motion would probably have serious consequences
and, provided it is on consent, refer any issue for ADR  Serving the notice of motion would probably have serious consequences
 An important principle is that no brief prepared for a case (or settlement) conference nor any  A party seeking a w/out-notice order has an obligation to make full and frank disclosure of all material facts,
statement made at such a conference shall be disclosed to any other judge except in an even where some of those facts may not be helpful to the party’s position.
agreement reached at a settlement conference or an order  A w/out-notice order must be served immediately on all parties affected, together w/ all docs used to obtain it
 This rule is designed to ensure that all negotiations, suggestions, and guidance from the court at a  all w/out-notice orders shall require the matter to return to court, if possible to the same judge, w/in 14 days
conference are not recorded or admissible in future steps. By sheltering such communications, or on a date chosen by the court
the parties are free to discuss and exchange ideas and positions w/out having to worry that the  3.14.2 Form 14B motions
other side will use the communications against them at a further step in the case.  If a motion is limited to procedural, uncomplicated, or unopposed matters, the moving party may use what is
 Costs shall not be awarded at a conference unless a party was not prepared, did not serve a known as a Form 14B motion form, instead of a notice of motion and affidavit
required brief, did not make any required disclosure, or otherwise contributed to the conference  The kinds of cases where this form may be used include obtaining an adjournment or any temporary or final
being unproductive or otherwise failed to follow the rules orders on consent or changing an FAC into a case conference.
 3.13.1 Combining case and settlement conferences  The form is not to be used for substantive relief, and if it is, the motion will almost always be adjourned to
 A new rule introduced in July 2021 enables a judge at a case conference to order, at allow the other side to file material in response and/or for oral submissions.
any time, that part of or all of a case conference, settlement conference, or trial
 A response by the 人 served w/ a Form 14B motion shall be served and filed not later than four days after the
management conference be combined
Form 14B was served
 3.14 Motions
 Since these kinds of motions are designed for simple, often uncontested or administrative matters, a party
 Sometimes after a case conference has been held, a litigant may seek an order on motion. Motions
who uses a Form 14B and who is served w/ a response to it may not serve or file a reply
may be resolved prior to argument before a court if both parties agree
 In practice, if the court finds the issue warrants an in-人 appearance for submissions, the motion will be
 A 人 who wants
rejected and a date set for either a conference or motion
 a temporary order;
 3.14.3 Orders
 directions on how to carry on the case; or
 a “temporary order” is an order that is effective only for a limited time. (previously called interim orders)
 to make a change to an already existing temporary order
 A “final order” includes an order, other than a temporary order, that decides a claim in an application on a final
 may bring a motion provided a case conference has been completed or is not required (rr. 14(1) and
basis and includes an order made on a motion to change a final order (previously called judgments")
(4)). A case conference must be held before a motion unless there is urgency or hardship
 Whether it is made w/ or w/out notice, a motion requires two docs: a notice of motion (Form 14) and  A “contempt order” is an order finding a 人 in contempt of court for violating either a final or temporary order.
an affidavit (Form 14A) (r. 14(9)(a)). If support is sought, a Form 13 or 13.1 financial statement is also  A “payment order” means a temporary or final order requiring a 人 to pay money to another 人.
required.
 An order sent to the court for signature (or “execution” as it is formally known) must be accompanied by a
 The party bringing the motion shall serve the docs in r. 14(9) on all other parties not later than six
draft order that has been approved by the other side’s L or, if unrepresented, the actual party (r. 25(4)). If the
days before the motion date (r. 14(11)(a)). They must be filed in court not later than four days before
other side refuses to approve the form and content of the draft order w/in 10 days of receiving it for approval
the motion date (r. 14(11)(b)). Further, as w/ conferences, after conferring w/ the other party, a
by the party who prepared it, the court may sign the order w/out that party’s input (r. 25(8)). If neither party
confirmation form (Form 14C) must be filed by 2:00 p.m. three days before the motion dateA 人 has a L, the court clerk shall prepare the order for J to sign
served w/ a motion shall serve a response, which must be served and filed not later than four days  An order is effective from the date on which it is made, not signed or processed by the court office
before the motion date (r. 14(11.3)). The moving party may then serve a reply, which must be filed no  Court can make various orders to streamline a case
later than 2:00 p.m. three days before the motion date (r. 14(11.5)).  3.14.4 Summary judgment
 Motions before case conferences are strongly discouraged.

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