RM logo

&

Cindy Chen logo

practicing in Association (not as Partners)

FAMILY LAW - Divorce, Separation, Custody, Property, Support, Mediation,etc.

 

Dr. Montgomery has been doing Family Law since Nov. 2006, has done over 185 cases so far.
Litigation, Separation Agreements, Mediation, Simple and complex Divorces.

At a consultation Dr. Montgomery will explain in simple terms that you can understand:

LITIGATION: Dr. Montgomery has attended Family Court many times in Toronto (all three court houses), Oshawa (many times), also Brampton, Newmarket and Orangeville.

ALTERNATE DISPUTE RESOLUTION (ADR): Instead of expensive, time consuming and stressful litigation, meeting busy judges who are often impatient if not downright hostile, and have not had time to read your file, consider having the opposing lawyers try to negotiate a solution, or having us attempt to mediate a solution, or arbitrate it (like a private judge). You and your spouse or partner can go to mediation sessions and co-operate so that the mediator can come up with a "Memorandum of Understanding", or you can both have a lawyer to represent each of you at mediation sessions (five people in the room instead of three.) ADR is usually cheaper and faster, and unlike a judge's ruling you have direct input and veto power into the final outcome.

 If you hire Dr. Montgomery as a mediator or Collaborative Lawyer you cannot later retain him as your legal counsel. Ideally and normally for mediation you and your partner would both be present at our office and Dr. Montgomery would not see you individually. However if you want to hire him as your ordinary lawyer (not as a mediator or collaborative lawyer) every bit of information is "privileged" and will only be disclosed where required by law (e.g. financial disclosure). So if you plan to hire Dr. Montgomery as your family lawyer you must never bring your partner to our office. With a degree in Psychology and having worked at two mental hospitals, Dr. Montgomery can often provide insights into clients' motives that accelerate the mediation process. (We can also refer you to licenced psychologists and counsellors and family mediators.)

Here are two links to websites that explain the difference between regular litigation, mediation, and collaborative family law: Ont. Fed. Collaborative Law (has an excellent table comparing collaboration versus litigation) or see Mediation v Collaborative Law

Your final Separation Agreement (S.A.) can be filed at a court to become a court order if desired, especially if it involves collecting periodic payments (child or spousal support) that you think you need the Ontario government to collect for you from your partner. This only works if the S.A. sets out a specific monthly payment and uses certain phrases; if it talks about lump sums, percentages, annual revisions or omits the special sentences, the government won't enforce it. If instead you litigate, and want the gov't to collect for you, there is a Support Deduction Order (SDO) issued at the end of each case, with the specific monthly payments set out; in fact if you and your partner do NOT want the government involved in collecting, you must both sign a joint withdrawal form, otherwise the SDO goes to the Ontario government (Family Responsibilties Office or "FRO") who will arrange for collecting from the payor or his employer. FRO can also garnishee a person's Canada Pension payments, Old Age Security, EI, and will certainly grab any tax refund before the person can get it. If you are the support payor and are in substantial arrears with FRO and (if they win a Default Hearing at court) they can take away your driver's licence, your passport, place a lien on your real estate, jail you for 6 months etc. If FRO knows that you have assets (you must fill out a FRO financial form which is similar to the court financial form) such as a bank account, RRSP or TFSA, they can issue a Direction to you to take the money out and give it to them (towards support payments due or overdue). So if you are a payor and having "issues" with FRO, or a recipient not getting support owed to you, contact us. Even if the payor moves to another province or a US state, FRO has reciprocal arrangments with them, albeit it can take many months to finally get justice.

An S.A. paves the way for a simple divorce (joint or uncontested). The terms of the S.A. can be copied directly into the divorce, but usually are left as a separate contract; either way this allows the divorce to proceed quickly. Judges don't like to allow divorces until all the issues listed in the first paragraph above have been settled via an Agreement. So you usually need to do all the hard work first and then get the divorce. However for couples with no significant assets or child issues, or who already have a S.A. that will stand up to judicial scrutiny, a simple divorce can be started.

FAMILY LAW FEES (2020):

We try to keep fees low compared to the competition by using modern electronics and software.Many of our clients work for employers on the EAP program or to Legal Shield getting a 25% discount.

Consultations: Many clients are covered for a free half hour through their workplace Employee Assistance Plan (EAP). If not, you can either pay a flat $310 plus HST (total $350) and then IF you hire me that is a credit to your account, so it becomes free. (If you don't hire me I keep the $310 to cover my time in the consultation.) (Most initial family law consultations take 90 minutes to two hours.)

Separation Agreements: We charge by the hour but most simple and medium complexity ones cost $1,350 to $1,600. Other Separation Agreements are complex and can take months of negotiation and revising. (Beware of short Agreements such as sold in drug stores or stationery stores for about $15 - $20. These are only about 15 paragraphs long and mainly suitable for people with short marriages, little income or assets, no children etc. and they will not hold up if challenged in court years later. Rarely would our time for a Separation Agreement go above 12 hours but "rarely" does not mean "never". Sometimes one truculent party will haggle and hold things up for a long time. If no final agreement has been reached with the other party after 15 hours of my time the client and Dr. Montgomery discuss whether to stop work or continue and on what terms. Please note that cases involving spousal support and/or division of family property can take a lot of time and require use of special computer programs.

Above fees for Agreements do not include fee for "Certificate of Independent Legal Advice" if such is required. The lawyer's fee for such a certificate if he prepared the S.A. is free, if he did not draft most of the S.A. (you bring us one already prepared) it is $350.

Court: The lawyer's standard hourly rate for litigated cases is $350 (plus HST and disbursements). Please note that cases involving spousal support (alimony, maintenance) and division of family property can take a lot of time and require use of special computer programs by experienced lawyers.

Mediation: Clients have been very satisfied with Dr. Montgomery's mediations. It is usually cheaper and faster than litigation. For mediation the couple divide the hourly rate (e.g. 50-50 if they have about the same income, otherwise according to their incomes). Hourly rate is decided at the beginning via mediation among all three of us, depending on clients' incomes, complexity of case etc. Range is between $150 and $350 per hour (for both parties, not each). Usual fee where total gross family income is under $150,000 per annum is $150 per hour e.g. each person pays $75 per hour or if one has a good income and the other doesn't, pro rata per income e.g. one person pays $120 and the other $30 for each hour.

Uncontested divorce: In total, court fees are $632 to obtain a divorce in Ontario. The first payment of $212 is due when the application for divorce is filed which includes court fees of $202 and $10 that is collected for the federal Department of Justice. Additional court fees of $420 are paid before the divorce is reviewed by the court. These expenses do not include lawyer's fees. For simple divorces (Uncontested or Joint, no issue regarding custody, access, property division, support etc.) where there are no issues locating or serving the other party, and you have enough info for me about yourself and your spouse to fill out the form, my fee is a minimum of $850. (So the total is over $1600.) Any complications means my hourly rate gets charged on top of the $850 min. fee. e.g. seeking an order for substitute service, dispensing with service, will cost more. Beware of non-lawyers advertising "uncontested divorce" for a few hundred dollars. I investigated one that advertised "Divorce $200" using somone pretending to be a client and they charged her $200 just for a consultation to see if she "qualified" for a divorce. (Nearly everyone does.) It is impossible to provide a divorce certificate for $200 or $300 when the court fees are over $600. Also beware of paralegals saying they can get you a divorce "severed from all collateral relief issues". In fact judges are very reluctant to sign these, especially where there is no formal Agreement for child support, and they usually want to see that property division (property includes all financial assets) and possible spousal support issues have been fully and formally addressed before granting a divorce. Any paralegal who tells you to just not mention these or say they have been settled or tells you to lie about children, assets, income etc is commiting serious infractions and is liable to be suspended.

Discounts: Many clients are on employer discount plans so check with your Personnel (Human Resources) office to see if there is any "EAP" or "Law Assist" program at your workplace. That gets you a free half hour consultation and 25% off my regular hourly rate.

Justice Net cases: If you earn less than $60,000 per annum you may qualify for www.JusticeNet.ca deep discount rates. You must show Justice Net staff your last two years' Canada Revenue Notice of Assessment and also if it is between July 1st and Dec 31, evidence of your current year's income. Even if your income is low enough to qualify for Justice Net, we will not take the case if you have assets of $100,000 or more (e.g. savings, RRSPs, private pensions, own a house with $100k or more equity etc.) or if litigation will be involved and the Justice Net fee is below $150 per hour. Here is the link to the Justice Net fee table: https://www.justicenet.ca/fee-schedule-2/

Legal Aid:  We accept a very few family law cases per year, but not Childrens Aid Society (child protection) cases.

Family Law Disbursements are necessary expenses incurred for your case such as subcontracted services (e.g. process servers, pension or house appraisers, psychologists), court fees, translations, faxes, photocopies, etc. For litigation there may be a fee to rent the use of an Offical Examiner's Office and their official reporter.

ADR (Alternate Dispute resolution) fees:

Dr. Montgomery has had extensive training in MEDIATION (Law School, Ontario Crown Attorneys, Bar Admission Course) and founded Peoples' Mediation Centre Inc. in Burnaby (Vancouver) in 1986. He can mediate all types of disputes; e.g. landlord-tenant, commercial, as well as matrimonial. He is also qualified to perform ARBITRATION and MED-ARB (arbitration following unsuccessful mediation). (See certificate below re commercial arbitration). Mediation and arbitration fees are $180 per hour.

FREQUENTLY ASKED QUESTIONS that we can answer in a consultation or if you hire us.

FLA means “Family Law Act”, MH means Matrimonial Home, SA means “Separation Agreement”, “mtg” means “mortgage”, NFP means “Net Family Property”, ENFP means the Equalization of the NFP, V date means the valuation or separation date, HELOC is a Home Equity Line of Credit and SS is “Spousal Support” (formerly called "alimony" or "maintenance").

1. What is ADR?

2. What is difference between mediation and arbitration?

3. Is it better to negotiate an out of court settlement or to go to court and litigate?

4. What is a pre-nup?

5. Does one person have to move out to start a separation?

6.  So how does a court decide is a couple are separated if they are still at the same address? Is it based on having sexual intercourse?

7. What does "legally separated" mean?

8. How much does a Separation Agreement cost?

9. What is the V date that family lawyers keep talking about and is in the forms?

10. What if we tried getting back together and it did not work and we re-separated?
 

11. On separation, should I cancel joint accounts, joint credit cards, joint Lines of Credit, joint debts?

12. I have heard about occupancy rent. Is it true that after I left the matrimonial home I can force my spouse who is still there to pay me what I have been spending on rent?   

13. If I live with someone without marrying them, and then we separate, do we have to divide all our property and split the joint assets?

14. How does Spousal Support (also called Maintenance or Alimony) work? How is it calculated?

15. Where can I get an estimated figure for free without hiring a lawyer?

16. So I can rely on those figures and count on the court awarding that amount?

17. If I live with someone without marrying them, and then we separate, might I be liable to have to pay them spousal support/ maintenance/ alimony? 

18. Are there any time deadlines that apply to applying for spousal support? 

19. How long does a family court case usually take?

20. How much does it cost?

21. What is a "retainer"?
ANSWER: A deposit to your Trust Account at the lawyer’s bank. This is needed to start the case and it must be replenished when it gets low, so the lawyer has enough money to rely on to do the work and pay the expenses.

22. In the GTA, what is the typical retainer fee (deposit required) by a typical family lawyer to start a court case?
ANSWER: $3500  to $5000
 
23. How much an hour do experienced family lawyers in the GTA charge? 
ANSWER: $250 (or less in some situations) to $500 (or more) + HST + disbursements. The average seesm to be around $400 in 2020.

24. What are disbursements?
ANSWER: Expenses such as couriers, process servers, photocopies, fax charges,  translation, court fees etc.

25. Can I get a free lawyer thru Legal Aid? 
ANSWER: You have to apply to them. They have complex rules, depends on the legal issue and your income and dependents and whether you own real estate. Basically if you earn much over $25,000 you are too rich)  To apply for Legal Aid help in over 200 languages telephone 1-800-668-8258 toll-free (or 416-979-1446 in Toronto) Hours: Monday to Friday, 8:00 a.m. – 5:00 p.m. Best time to call: 9 to 10 a.m.

26. What if I go to court with no lawyer, will the court provide me one for free?
ANSWER: It depends on your income etc according to the Legal Aid rules. Yes, Duty Counsel will represent people who qualify for Legal Aid. If they are too rich for Legal Aid, you only get about 20 minutes of general information from the Duty Counsel or the FLIC. So some time will be spent at the beginning reviewing your finances to see if you qualify for Legal Aid or not.

27. What is the FLIC?
ANSWER: Family Law Information Counsel. They are located at Family courts to give free information to people who do not qualify for a Legal Aid lawyer or Duty Counsel. FLIC only gives 20-30 minutes of basic information and will not give advice on your case or enter the court room.

28. Do I have to pay child support if the mother is living with the child and I am not, even if I only lived with the mother a short time, or never?
ANSWER: Yes, if it is your child you must pay child support. Even if the birth was due to a so-called "one night stand”. No exceptions.

29. What if the child’s mother denies me access?
ANSWER: you must pay child support regardless of whether you ever see the child or not, but as a father you have a right to see the child unless your have a proven violence or sexual violence or  drug or alcohol problem.

30. Do I have to pay child support if the kid was not mine, was from a previous father?

31. How is child support calculated in Canada?

32. What is an NOA?

33. What if the payor spouse is self-employed and has no fixed salary? What if they work occasionally or seasonally? Can they avoid paying child support?

34. What if the payor spouse’s income bounces up and down due to being laid off, change of jobs, seasonal work, being a commissioned salesman?

 35. Does child support automatically cease when a child turns 18?

36. What is meant by “custodial parent” and ”access parent”?

37. What is split custody?

38. What does “custody” mean?

39. What is the usual access schedule of a non-custodial parent?

40. What is the FRO I keep hearing about?

41. Can FRO really put people in jail for 6 months for not paying child support?
ANSWER: Yes, I have had clients who spent six months in a provincial prison. FRO can also revoke your driver’s licence, pilot’s licence, hunting licence and passport.

42. How often does FRO remove the drivers licence from “Deadbeat Dads”?
ANSWER: Very often, if the arrears are substantial and the payor cannot convince FRO that he is going to start to pay it off or that he has started a motion to change the support order. 

43. What is a “refraining order”?
ANSWER:  This is a court order telling FRO not to revoke a driver’s licence or other type of Ontario licence or Canadian Passport.

44. What are "section 7 special and extraordinary expenses", how are they different from the child support amount you just explained?

45. What percent of section 7 special and extraordinary expenses does the access parent have to pay for?

46. How does the division of assets work? Do we divide all our assets in half?

47. Are there any time deadlines regarding the division of family assets?

48. Does “property” on the Ontario Form 13 and 13.1 financial forms mean real estate?

49. Do I have to get my private pension valued or assessed? If so, how do I do it?

50. Should I remove my spouse as the survivor from my private workplace pension plan?

51. How are RRSP (Registered Retirement Savings Plan) income tax aspects handled?

52. What is an RRSP rollover?

53. Does my spouse get half my Canada Pension Plan?

54. Can we contract out of the CPP split by a Separation Agreement?  

55. If my name is not in the deed or title to our matrimonial home and my spouse assaults me or threatens to kill me, can I get him kicked out of the house or condo and live there by myself?

56. If I have to leave the home to avoid the stress and arguments and risk of assaults, a) does this mean I have abandoned my right to my share of the value of the house, or b) have I abandoned my right to see my kids? And (c) if I have to leave and rent elsewhere, can I claim Occupancy (Occupation) Rent from the stay-at-home spouse?

57. I left the home over a year ago and the value of it has gone up a lot since then. My spouse who stayed in the home paid for the mortgage and insurance and property taxes after I left. When it comes to dividing the family assets, can I get half of the increased value of the home?

58. If I paid more into the house than my spouse do I get to keep more than 50%?

59. If my spouse gambled away a lot of our family income, can I get more than a 50% share of the net family property?

60. If my spouse never worked and I paid for all the mortgage, property tax, utilities and house insurance, does she still get to keep 50% of the value of the house?

61. What is equity?

62. Why does each spouse get half the increase in equity during the marriage if one paid more than half of the costs? That does not seem fair.

63. If I paid the down payment toward the house, can I get repaid that amount from my spouse or by deducting it from the equalization payment I may owe her?

64. When one is calculating division of net family property, are there any exceptions, any money or assets that do not need to be counted?

65. What is excluded property?

66. If we are not married just living together, will one of us be liable to pay the other spousal support?   

67. How much does a simple divorce cost?
ANSWER: In total, court fees are $632 to obtain a divorce in Ontario. The first payment of $212 is due when the application for divorce is filed which includes court fees of $202 and $10 that is collected for the federal Department of Justice. Additional court fees of $420 are paid before the divorce is reviewed by the court. lawyer's fees are extra. You must use a third party to serve your spouse and if you hire a process server this could cost anywhere from $40 to a hundred (more if they avoid service or they can’t be easily located, then you may need to get an Order for Substitute Service). Lawyer’s fees start at $850 + HST. So budget for a minimum of $1650. 

68. What is difference between an uncontested and a joint divorce?

69. What are the legal grounds for divorce? Do I have to prove that my spouse has been cheating on me or abusing me?

70. Do I have to provide photos or videos of my spouse having sex with their secret lover?

71. Do I have to have police proof that my spouse has been hitting me? 

72. How come judge won't give us a divorce up front and why must we fight over the custody and money before we can get the divorce?

73. Should I change my will if we separate?

74. Are there any time limits to applying for child support? How far back can one apply?

75. Should I change my life Insurance?

76. Are there any deadlines for equalization of net family property?
77. What is the difference between a Peace Bond and a Restraining Order?

78. I would like to buy my husband’s interest in the matrimonial home as part of the ENFP, but I can’t afford to pay a fair market price. What can I do?

79. What is a “hardship” claim?

80. Are there any legal obligations to support parents?

81. Where can I get some free online information about child support and custody and access that is simple and basic?

82. Where can I get some free online information about property division that is simple and basic?

83. Where can I find a family mediator?

84. What is Occupancy Rent? How is it calculated and how can I get it?

85. Can I get a court order forcing the sale of the MH?

86. Can I get the court to stop my spouse from selling the MH?

87. How to handle income tax aspects when calculating section 7 extras?

88: What do I put in Divorcemate Supportmate where it says “recipient’s age at separation” if there was no marriage or co-habitation and hence no separation? (Some couples only get together for a few hours at a party and a child is conceived.)