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Frequently Asked Questions

We have received many legal inquiries and questions over the years and to help others with the questions they may have concerning legal matters in Ontario, we have generated a list of the most common.

Family Law

How much will my family law matter cost?

This will depend on what type of matter must be dealt with, the number of issues in dispute, and the complexity of the matter. There are many different types of family matters, such as: a contested/uncontested divorce; the breakdown of a common-law relationship; Child Protection proceedings; where the Children’s/Catholic Aid Society are involved; division of matrimonial Net Family Property or common-law property/assets. We strive to resolve claims through direct negotiation or through various dispute resolution methods to reduce your costs. Contact us, we are happy to assist by assessing your case and providing you with a cost estimate.

Does either party have an automatic right to custody of our children?

No. As a matter of law both parties have an equal right to custody of their child(ren) until and or unless the parties agree, otherwise the court makes this determination. The court will review the facts and circumstances in each case but the most important consideration in making a determination will be what is in the best interests of the child(ren). A “Temporary Custody Order” relates to custody where the children will live in the interim (temporarily) until a final order has been determined. “Sole Custody Order” means that only one parent has exclusive decision-making control of all rights and responsibilities relating to the care of the child(ren). “Joint Custody Order” means that both parents have decision-making authority and share responsibilities in caring for the child(ren) when in their care but usually requires cooperation between both parents. “Shared Custody Order” does not affect the custodial arrangement, instead this relates to child support obligations where the access parent may pay less child support where the child(ren) spends at least 40% of their time with that parent. Generally speaking, the courts are reluctant to award sole custody to one parent, since the involvement of both parents in the lives of the children is considered extremely important, except in circumstances where this is not in the child(ren)’s best interests.  

Do I have the right to kick my spouse out of the house, change the locks, or obtain police assistance?

If you have reason to believe you or your children may be in any danger of violence or threats of violence, you should contact the police immediately. You cannot simply change the locks, or demand your spouse leaves the premises without an agreement or court order (even if you own the property). To obtain exclusive possession you must obtain a court order and demonstrate cohabitation is intolerable. Our lawyers will help you manage this situation as quickly as possible.  

Can I claim a higher amount than the Spousal Support Advisory Guidelines?

Yes, these guidelines are advisory only. The court may award a spouse an amount which exceeds the low, mid, or high range of the guidelines of financial support. For example, where the supporting spouse fails to provide full financial disclosure and there are questionable expenditures, bad faith, or dishonesty the court may take this into account and award an amount in its discretion above/below the guidelines.

In terms of child support to be paid by the supporting spouse, does the court follow the child support guidelines?

The amount of child support to be paid is always in the discretion of the court. The court does not take a strict guideline approach and each case turns on its own facts and circumstances. The court will assess the income of both parties to ascertain whether support should be paid on the low, mid, or high end of the spectrum or otherwise outside of the guidelines.

Will you ‘go after’ and help me ‘hurt’ my partner/spouse for doing this to me?

We are here to help but strong advise you do not act on emotion, instead focus on the best interests of the children and resolving the matter to avoid adverse cost consequences. We will provide robust professional representation in accordance with your instructions, acting within the limits of the law and rules of professional conduct, to obtain the most favourable results in your personal circumstances. A lawyer shall not abuse the legal process by initiating or supporting proceedings which are clearly motivated by malice on the part of the client or are brought solely for the purpose of injuring the other party (RoPC 5.1-2(a)). A lawyer shall represent the client resolutely and honourable within the limits of the law, and has a duty to raise fearlessly every issue, advance every argument and ask every question, however distasteful, that the lawyer thinks will help the client’s case and to endeavour to obtain for the client the benefit of every remedy and defence authorized by law. The lawyer must discharge this duty by fair and honourable means, without illegality. In civil proceedings, a lawyer should avoid and discourage the client from resorting to frivolous or vexatious objections, attempts to gain advantage from slips or oversights not going to the merits or tactics that will merely delay or harass the other side. Such practices can readily bring the administration of justice and the legal profession into disrepute. (Abbreviated from the Rules of Professional Conduct,  Rule 5.1-1)     

Can you help me avoid disclosing my financials in family proceedings?

No. A lawyer must explain the necessity of making full disclosure of all documents relating to any matter in issue. Parties must comply with their disclosure and discovery obligations pursuant to the Family Law Rules. Additionally, a lawyer shall not knowingly assist or participate in the concealment, destruction or alteration of incriminating physical evidence or attempt to obstruct the course of justice, and cannot encourage any dishonesty or instruct a client or any other person to violate the law to avoid punishment (RoPc 3.2-7, 5.1-2A). Furthermore, a lawyer shall not make frivolous requests for the production of documents or frivolous requests for information at the examination for discovery.

My ex lives in another city/jurisdiction, where does a case start and where is it to be heard?

As per Rule 5 of the Family Law Rules, ordinarily a case shall be started,

  1. in the municipality where a party resides;
  2. if the case deals with custody of or access to a child, in the municipality where the child ordinarily resides, except for cases described in,
    1. section 22 (jurisdiction of an Ontario court) of the Children’s Law Reform Act, and
    2. subsection 48(2) (place for child protection hearing) and subsection 150(1) (place for adoption proceeding) of the Child and Family Services Act; or
  3. in a municipality chosen by all parties, but only with the court’s permission given in advance in that municipality.  O. Reg. 114/99, r. 5 (1).

Starting a case where DANGER TO A CHILD OR PARTY: 

If there is immediate danger that a child may be removed from Ontario or immediate danger to a child’s or party’s health or safety, a party may start a case in any municipality and a motion may be heard in that municipality, but the case shall be transferred to a municipality referred to in subrule(1) immediately after the motion is heard, unless the court orders otherwise.  O. Reg. 114/99, r. 5 (2).

Am I entitled to costs?

There is a presumption that a successful party is entitled to the costs of a motion, enforcement, case or appeal. The court has absolute discretion in awarding costs (Rule 24(1)). Contact us and we will advise you how costs will be determined in your case. We understand how stressful and expensive family proceedings can be and want to ensure you have a thorough understanding how costs are assessed. 

If my ex is being completely unreasonable, how does the court decide costs?

Despite the presumption the successful party is entitled to costs, a party who has behaved unreasonably during a case may be deprived of all or part of the party’s own costs or ordered to pay all or part of the unsuccessful party’s costs.  O. Reg. 114/99, r. 24 (4). As per the Family Law Rules, the court will consider a variety of important costs considerations including (but not limited to):

DECISION ON REASONABLENESS

In deciding whether a party has behaved reasonably or unreasonably, the court shall examine,

  1. the party’s behaviour in relation to the issues from the time they arose, including whether the party made an offer to settle;
  2. the reasonableness of any offer the party made; and
  3. any offer the party withdrew or failed to accept.  O. Reg. 114/99,r. 24 (5).

DIVIDED SUCCESS

If success in a step in a case is divided, the court may apportion costs as appropriate.  O. Reg. 114/99, r. 24 (6).

ABSENT OR UNPREPARED PARTY

If a party does not appear at a step in the case, or appears but is not properly prepared to deal with the issues at that step or otherwise contributes to that step being unproductive, the court shall award costs against the party unless the court orders otherwise in the interests of justice.  O. Reg. 114/99, r. 24 (7); O. Reg. 235/16, s. 4 (1).

BAD FAITH

If a party has acted in bad faith, the court shall decide costs on a full recovery basis and shall order the party to pay them immediately.  O. Reg. 114/99, r. 24 (8).

DECIDING COSTS

Promptly after dealing with a step in the case, the court shall,

(a) make a decision on costs in relation to that step; or

(b) reserve the decision on costs for determination at a later stage in the case. O. Reg. 235/16, s. 4 (2).

In making a decision on costs in relation to a step in a case, the court shall decide in a summary manner whether anyone is entitled to costs and, if so, determine who is entitled and set the amount of the costs. O. Reg. 235/16, s. 4 (2).

FACTORS IN COSTS

In setting the amount of costs, the court shall consider,

  1. the importance, complexity or difficulty of the issues;
  2. the reasonableness or unreasonableness of each party’s behaviour in the case;
  3. the lawyer’s rates;
  4. the time properly spent on the case, including conversations between the lawyer and the party or witnesses, drafting documents and correspondence, attempts to settle, preparation, hearing, argument, and preparation and signature of the order;
  5. expenses properly paid or payable; and
  6. any other relevant matter.  O. Reg. 114/99, r. 24 (11); O. Reg. 235/16, s. 4 (3).

PAYMENT OF EXPENSES

The court may make an order that a party pay an amount of money to another party to cover part or all of the expenses of carrying on the case, including a lawyer’s fees.  O. Reg. 114/99,r. 24 (12).

How do I Secure Costs or protect my equity in the proceedings?

This is called a motion for Security for Costs as per Rule 24(13) of the Family Law Rules, (see main factors below). We are happy to assess your case to advise you whether you may be able to secure costs. In the right circumstances, you may be able to secure costs for the matter to proceed. This may alleviate some of your concerns in relation to costs of going to court, where one or both parties must pay monies into court or otherwise provide security for the matter to move forward.

ORDER FOR SECURITY FOR COSTS

A judge may, on motion, make an order for security for costs that is just, based on one or more of the following factors:

  1. A party ordinarily resides outside Ontario.
  2. A party has an order against the other party for costs that remains unpaid, in the same case or another case.
  3. A party is a corporation and there is good reason to believe it does not have enough assets in Ontario to pay costs.
  4. There is good reason to believe that the case is a waste of time or a nuisance and that the party does not have enough assets in Ontario to pay costs.
  5. A statute entitles the party to security for costs.  O. Reg. 114/99, r. 24 (13).

What are the cost implications if I don’t accept a reasonable offer?

Awards of costs are always at the discretion of the court. The Family Law Rules are designed to ensure parties act fairly and reasonably in family proceedings. As a result, where one of the parties acts unreasonably there may be significant cost consequences. This means where a reasonable offer to settle is made but unreasonably refused, where the refusing party obtains the same result or worse at trial, the costs regarding that issue are likely to be awarded (on a full/substantial indemnity basis) against the party for refusing a reasonable offer. It is always best to try to resolve and narrow as many issues as possible in order to save time and money. Where possible, it is better for the parties to settle on any outstanding issue, even on the last day of trial. Our team wants to help you achieve the best possible result, especially in relation to costs.

COSTS CONSEQUENCES OF FAILURE TO ACCEPT OFFER

A party who makes an offer is, unless the court orders otherwise, entitled to costs to the date the offer was served and full recovery of costs from that date, if the following conditions are met:

  1. If the offer relates to a motion, it is made at least one day before the motion date.
  2. If the offer relates to a trial or the hearing of a step other than a motion, it is made at least seven days before the trial or hearing date.
  3. The offer does not expire and is not withdrawn before the hearing starts.
  4. The offer is not accepted.
  5. The party who made the offer obtains an order that is as favourable as or more favourable than the offer.  O. Reg. 114/99, r. 18 (14).

COSTS CONSEQUENCES — BURDEN OF PROOF

The burden of proving that the order is as favourable as or more favourable than the offer to settle is on the party who claims the benefit of subrule(14).  O. Reg. 114/99, r. 18 (15).

COSTS — DISCRETION OF COURT

When the court exercises its discretion over costs, it may take into account any written offer to settle, the date it was made and its terms, even if subrule(14) does not apply.  O. Reg. 114/99, r. 18 (16).

I have been served, what do I do now?

If you have been served with any legal document(s) it is crucial that you take legal advice immediately or as soon as possible in order to protect yourself and or your children. There are special rules regarding service of documents, bring us what you have and we will advise you what to do next.

Can you help me take immediate steps?

Absolutely. We understand how critical it is to protect your children as well as your own financial security, legal rights, and interests. Contact us to make sure you are taking the   appropriate and necessary steps. Emergency motions can be brought if you qualify in certain circumstances. For example, circumstances giving rise to urgency/hardship or for some other reason in the interests of justice. Pursuant to the Family Law Rules, a motion may be made without notice, where:

  1. the nature or circumstances of the motion make notice unnecessary or not reasonably possible;
  2. there is an immediate danger of a child’s removal from Ontario, and the delay involved in serving a notice of motion would probably have serious consequences;
  3. there is an immediate danger to the health or safety of a child or of the party making the motion, and the delay involved in serving a notice of motion would probably have serious consequences; or
  4. service of a notice of motion would probably have serious consequences.  O. Reg. 114/99, r. 14 (12).

Landlord/Tenant law

How long must I wait before filing an application with the Board for Non-payment of Rent?

A Landlord can serve a Notice for Eviction for non-payment of Rent the day after the rent becomes due.

How long does the eviction process take?

Depending on the circumstances and the jurisdiction of the rental unit, an eviction order can be obtained in as little as 3 weeks.

Can I increase the rent amount that my tenant pays?

The Residential Tenancies Act dictates the maximum allowable increase in one year, however there are special circumstances that allow for rent increases above those guidelines.

What can I do if my Tenant is not paying rent?

We always encourage that you speak with your tenant to try to resolve any issues you may have. If you are unable to resolve rent payment issues with your tenant, the Landlord and Tenant Board has certain rules and protocols that must be followed in order to get your to pay.

My tenant is always late with the rent payment. What can I do?

The Residential Tenancies Act provides options for Landlords who wish to evict based on persistently late paying tenants.

Can Landlords enter a rental unit whenever they want?

No. The Residential Tenancies Act stipulates the conditions under which a Landlord can enter a rental unit.

Is the landlord responsible for repairs to the unit?

The Residential Tenancies Act says “A landlord is responsible for providing and maintaining a residential complex, including the rental units in it, in a good state of repair and fit for habitation and for complying with health, safety, housing and maintenance standards.” However, there are some instances where the tenant is responsible for the repairs.

Can I stop paying the rent if the Landlord is not maintaining the unit/complex?

A Tenant should never stop paying their rent. The tenant should advise the Landlord of any maintenance or repair issues with the rental unit or complex and if the Landlord does not correct the issues, the tenant can apply for an abatement of rent.

Do I have to move out at the end of my lease?

You do not have to move out when your lease expires. Your tenancy will continue on a month-to-month basis but the terms of the original lease will be continue to be in effect.

Can I break the lease?

Normally a lease cannot be broken if there has not been a breach. If you wish to break the lease agreement you must file the appropriate application with the Landlord and Tenant Board. A hearing will be held to determine if the lease has been breached and the tenancy terminated.

Can the Landlord cut off my heat/hydro?

A Landlord cannot interfere with any vital services such as heat and hydro. However there are certain times throughout the year that Landlord does not have to provide heat.

Can I sublet or assign someone else to my rental unit?

You can sublet or Assign someone else to the unit. The Landlord’s consent is required in most instances.

Can I represent myself at the LTB?

Parties may be self-represented, represented by a person licensed by the Law Society of Upper Canada or by an unlicensed person where permitted by the Law Society Act and its regulations and by-laws. However, the proper Notices and Applications must be drafted without error and filed within certain timelines. Failing to do so will result in delays and other repercussions which can be costly.

I have been served with an eviction notice. What should I do?

• Talk to the landlord about the notice and correct any problems, if possible.
• Leave the unit.
• Stay in the unit and see if the landlord files an application with the LTB. You will have a chance to explain the situation at a hearing. You have the right to stay in your unit until the LTB issues an eviction order.

Small Claims

Can I sue someone based on a verbal agreement?

A verbal agreement is just as binding as a written one. However, it may be harder to prove the terms and details of a verbal agreement.

How do I get my money after receiving judgment against an individual or company in Small Claims Court?

The typical enforcement remedies available through the Small Claims Court are:
• Writ of Seizure and Sale of Property
• Wage Garnishment
• Bank Garnishment

Can I sue the owner of a company that breached a contract?

The simple answer is, no. However, there are circumstances under which the Corporate Veil can be pierced and the owner can become liable.

Can I take someone to Small Claims Court if they owe MORE than $25,000.00?

If you think you have a claim for an amount greater than $25,000.00 you must bring the action in Superior Court not Small Claims Court. However, you may be willing to forego the amount above $25,000.00 in order to save on legal costs.

Can I take someone to Small Claims Court for LESS than $2,500.00?

Yes, but you cannot appeal the final decision/judgment on a claim for less than $2,500.00.

I have been served with a Plaintiff’s Claim. Do I have to respond?

Yes. You must file a Defence within 20 days or the Plaintiff may be able to note you in Default and receive Default Judgment against you for the total amount of the claim.

Can I represent myself in Small Claims Court?

The Access to Justice Act, 2006, S.O. 2006, c. 21 - Bill 14 allows individuals to represent themselves in court proceedings. However, there are a number of risks involved in doing so. Being unfamiliar with the Rules of the Small Claims Court and any other applicable legislation can put you at a significant disadvantage and could be detrimental to your case.

Can I get my legal fees back if I win?

If you are successful and receive judgment in your favour, you may request that your legal fees be paid by the unsuccessful party. In most instances, costs are awarded to the successful party based on 15% of the amount claimed. There are special circumstances that permit a Deputy Judge to order costs above 15%.

What types of matters are heard in small claims court?

Unpaid accounts for goods or services, unpaid loans, property damage, personal injuries, breach of contract.

Is there a time limit on how long I can wait to sue?

Typically, a claim cannot be issued if more than 2 years have passed since the incident. Be aware that there are shorter limitation periods and you should seek legal advice now to determine if shorter limitation periods apply to your specific case.

What do I need in order to start a claim?

It is very important that you have a summary of the events that took place and the reasons to validate your claim. Copies of all documentation is required such as contracts, payment records, returned cheques or photographic evidence.

The materials contained in this website are intended to provide general information and comment only and should not be relied on or construed as legal advice or opinion. We endeavor to keep the information on this website up to date, accurate and complete as reasonably possible. But we do not warrant the completeness, timeliness or accuracy of any information on this web site. The application and impact of laws vary widely, based on the specific facts involved. For any particular fact situation, we urge you to consult an experienced lawyer or paralegal with any specific legal questions you may have. Your use of this website does not constitute or create a lawyer-client relationship. Should you wish to retain our firm, kindly contact our office to set up a meeting with a lawyer or paralegal.
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Located just north of Toronto, we assist clients throughout Ontario including Toronto & All of GTA, Mississauga, Oakville, Hamilton, Burlington, Brampton, Vaughan, Markham, Woodbridge, Richmond Hill, Newmarket, Scarborough, Oshawa, Pickering, Ajax.

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3550 Rutherford Road, Unit 84
Vaughan, Ontario, Canada
L4H 3T8

Phone: (905) 553-2572
Fax: 1 (888) 412-3521

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Mon - Fri: 8:00am - 5:00pm
Evening and weekends by appointment

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Our Law Practice includes lawyers and paralegals that specialize in different areas of law, some of which include:
  • Real Estate Law
  • Wills & Estate Administration
  • Litigation & Appeals
  • Landlord & Tenant
  • Small Claims Litigation
  • Notary Services
  • Family Law

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