toronto divorce lawyer

A Brief Note on Family Arbitration Agreements in Ontario

Posted in: "All, "Brief Note" Series, Family Law by Admin | No Comments Thursday, July 29, 2010

Today I’d like to discuss the pertinent points of family arbitration agreement in Ontario.

Family arbitration is an alternative dispute resolution process involving a private third-party arbitrator to decide on the disputes between the parties under their consent. There may be more than one arbitrator in a proceeding.

The Ontario Family Law Act* expressly defines family arbitrations, agreements and awards. The decision and any award rendered by the arbitrator under a family arbitration agreement are binding and enforceable under the laws in Ontario, subject to certain limitations.

First and foremost, the agreement must be in writing and meet the formal requirements of the Arbitration Act# and its regulations. Failure to observe these conditions will render the agreement and any subsequent decision and award unenforceable.

Second, a family arbitration agreement is unenforceable unless the agreement is entered into after the dispute in question has arisen. In other words, parties are unable to agree to family arbitration in advance of the dispute in question.

Further, the family arbitration must be conducted exclusively in accordance with the laws of Ontario or of another Canadian jurisdiction. If it is not, then the process is not recognized as family arbitration and the decision is not a family arbitration award and has not legal effect.

The parties are not allowed to vary or exclude the restrictions imposed by law.

Any award made under the family arbitration may be enforced or set aside in the same way as a domestic contract. For example, if the parties did not receive independent legal advice, the award will become unenforceable and be set aside.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

*R.S.O. 1990, c. F.3.

#S.O. 1997, c. 17

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How Does a Lawyer’s Retainer Work?

Posted in: "All by Admin | No Comments Friday, June 4, 2010

When you hire a lawyer, he or she is likely going to ask for a retainer. Today’s blog explains how the retainer system works.

Think of the retainer as a deposit held by the lawyer. The retainer will be made “in trust” and deposited into a designated trust account as mandated by the Law Society.

The retainer will then be used for out-of-pocket expenses that the lawyer must pay on behalf of the client as a result of carrying of the file. Examples of such expenses include court filing fees and process server charges.

Depending on the law firm’s operating procedure, the lawyer will render accounts periodically or at the end of the service. The bill will include legal fees and disbursement charges. Disbursement charges may include many of the “soft costs” that are directly attributable to the file, such as photocopying, fax, courier, long distance calls, and so on.

Only after the bill has been rendered can the lawyer transfer the billed amount from the trust account to his general operating account. Any unused portion of the retainer will be returned to the client at the conclusion of the matter.

Items that are not directly attributable to the file,  such as office rent, are considered overhead, not disbursement charges. These should not be billed to the client.

If the retainer becomes exhausted during the carriage of the file, then the client may be asked to replenish it. He or she may be asked for a further retainer in the amount that the lawyer thinks appropriate.

Effective July 1, 2010, the Harmonized Sales Tax (HST) will be added to legal fees and certain disbursements. Prior to July 1, 2010, only the Goods and Services Tax (GST) is applicable.

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New Practice Direction in Family Law Cases in Toronto: Often Cited Family Cases Now Supplied to Family Law Judges

Posted in: "All, Family Law by Admin | No Comments Tuesday, May 25, 2010

On May 14, 2010, a new practice direction was issued by the Ontario Superior Court of Justice in the Central West, Central South, North West, South West, and Toronto Regions.

A list of Often Cited Family Cases for family matters containing cases frequently relied on is now supplied to the judges. Parties in family law proceedings in the Superior Court in the addressed regions need no longer include authorities on the list in the book of authorities.

However, specific extracts from those authorities which counsel intend to refer to the court must be included in the factum or book of authorities.

Let’s hope a few trees may be saved under this practice direction. To view the up-to-date list, visit the Superior Court of Justice website at www.ontariocourts.on.ca/scj/en.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

PSWLaw provides effective representation on your family law matters.

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Withdrawing Your Support Order from the Family Responsibility Office (FRO)

Posted in: "All, Administrative Law, Family Law by Admin | No Comments Friday, May 7, 2010

Orders issued by the family law courts in Ontario typically come with mandatory provision for the Family Responsibility Office (FRO) to enforce the support payments. The enforcement clause looks like this:

Support Deduction Order to Issue. Unless this order is withdrawn from the Family Responsibility Office, it shall be enforced by the Director and the amounts owing under the order shall be paid to the Director, who shall pay them to the recipient. Where sufficient deductions are not being made by support deduction order, payment may be remitted to the Director, Family Responsibility Office.

In some cases. the support payor and the recipient prefer to arrange for support payments to take place privately without the FRO’s involvement. This can be done by withdrawing the support order from the FRO.

  • If the support payments are up-to-date and there are no amounts owing in arrears, both parties must consent in writing to withdraw from the program by completing a Notice of Withdrawal. Once the Director is informed of the withdrawal, the FRO will stop all enforcement and close the file.
  • If there are amounts owing in arrears, the support recipient may withdraw from the program unilaterally by completing a Notice by Support Recipient of Unilateral Withdrawal. Once the Director receives the completed form, the FRO will stop all enforcement on the case.
  • If the support order is assigned to Ontario Works or the Ontario Disability Support Program, the appropriate social services provider must consent before the FRO can allow the parties’ withdrawal.

Re-registering a case

If the support payor and the support recipient decide to re-register a case with the FRO, a administrative fee will be charged to both parties. Either party may request to re-register the case.

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.

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