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Family law

Oct 28
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International Divorce Law under the Hague Convention

By Family law

Service is one of the important first steps in any legal matter and this is especially true in international divorce. When you commence a court proceeding, you are required to serve the opposing party to ensure that they receive the information about the case and have the opportunity to respond. Because of this, if you commence family court proceedings, your ex-spouse needs to be served. This applies even if you are only seeking a divorce and/or do not anticipate your ex-spouse to contest the proceedings.

So, how do you manage an international divorce if your ex-spouse lives in another country?

If the opposing party lives abroad, the manner of service will depend on a couple of factors.

For instance:
– What country does your ex-spouse live in?
– Do you know the address of your ex-spouse?

Depending on the country your ex-spouse lives in, they may have to be served through a special process outlined in the Hague Service Convention (the Convention). Countries that are party to the Convention must follow specific rules for service.

At present, there are 79 contracting countries to the Hague Convention in various countries all over the world, including:

  • Philippines
  • India
  • China
  • United States
  • Most of Europe
  • Others can be found here

Each contracting country designates a central authority to receive documents for service from other contracting countries. One of the requirements of the Convention is that a competent authority or judicial officer of that country forward the documents using special prescribed application forms. A lawyer is considered a competent authority for this process. As such, a non-lawyer cannot typically send these forms themselves.

What does the application include?

The application forms include a letter of request, a list and description of the documents to be served and a certificate of service for the foreign court to complete and return. Each country also has specific other requirements as well. For example, there may be a fee associated with the service or translation requirements. The Convention does not apply when the address of the person to be served is not known. However, there are other steps that a lawyer can assist you with, such as applying to the court for an order of subservice or the dispensing of the service requirement.

Once your court documents have been filed and served you can then proceed to finalize your family matter.

If you are looking to start a family proceeding against someone in another country; whether you have already filed your paperwork, and just need assistance with service, or are looking for a lawyer to help you complete the whole process, one of our family lawyers are here to help. Please contact us at 204-977-1706 to schedule a consult and learn more about the process and our fees or click here for more information.

 

Heidi Dyck is an associate at Wolseley Law LLP

May 15
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Unbundled Services – A New Approach to an Old Problem

By Family law, Unbundled

Unbundled Legal Services – A New Approach to an Old Problem

By Katie Brownell

 

Over the last decade, more and more Manitobans have started representing themselves in their legal disputes. While this has typically been the case for small claims matters, self-representation is now approaching the 50% mark for family law matters, according to statistics collected by the Department of Justice and legal unbundled services is something that people are turning to for help.

You might choose to represent yourself for a number of reasons: you feel that you cannot afford a lawyer or you do not qualify for legal aid; you cannot find a lawyer; you have been unhappy with previous experiences; you do not trust the legal system or you believe that you can do the work yourself.

The most common reason motivating people to self-represent is that hiring a lawyer is too expensive. This is something that lawyers can help fix by offering services that the majority of people can afford. Instead of the traditional billable-hour model, where legal fees are charged on an hourly rate and the lawyer handles all aspects of the case, we are starting to offer unbundled, or limited scope, services. This is where you and your legal team make an agreement to limit the scope of the lawyer’s work on the file to specific, pre-agreed tasks. It is an option that falls between no representation and full representation.

According to the National Self-Represented Litigants Project, many self-represented clients find the process of handling their own legal matter to be overwhelming and uncertain. The unbundled model gives you access to a lawyer who can help alleviate your concerns without requiring you to provide a large retainer up front.

While the unbundled services don’t make sense for all matters or all people, it can be particularly helpful when you are representing yourself in a civil or family matter where there are many specific procedures and court rules that must be followed. The big challenge for most people isn’t the actual law, it is the procedure involved. Having a good argument or a worthwhile claim doesn’t mean much if you are not able to put it into a form the courts will accept.

The impact of family litigation can be lifelong; it can affect what kind of a relationship you will have with your children and how much money you will have to support them and yourself. Making a mistake at an early stage in the process can be difficult to fix later and fixing it can cost much more than doing the right thing in the first place.

In February of 2019, the court implemented a new model for family law matters that has resulted in changes to court forms and procedure. Under the new model, there is an emphasis on exchanging materials and information at an early stage so that families can attempt to negotiate or settle as many issues as possible without the involvement of the court. Given these recent changes, it is important to make sure that the initial documents you submit to the court and exchange with the other person are in the proper form and set out the issues you are hoping to have resolved.

Hiring a lawyer on an unbundled basis is a great way to set yourself up for success. Instead of providing a lawyer with a retainer and having them control the entire file, you can seek the lawyer’s advice or assistance on particular tasks such as preparing, filing and serving a Petition for Divorce or a Statement of Claim. You can also get legal advice on one specific issue or have a lawyer look over materials you receive from the opposing party. You and your lawyer can decide on a plan that best suits your case and your budget. Once you’ve gone to a lawyer for unbundled services, you can make an appointment to go back and get further advice as problems or questions arise, which can be helpful because that lawyer is already familiar with your file.

Hiring a lawyer may not always be necessary and sometimes may not be possible. Unbundled services are an affordable and accessible alternative to help you navigate the legal system during what can be a tough or confusing time.

Dec 06
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Out of Court Family Resolution Certificates

By Family law

Manitoba Courts have recently expressed significant concern that the courts are being used to solve family law disputes involving child custody, support, and property division. As a way to encourage the resolution of family matters outside of court, Legal Aid Manitoba, also referred to as “LAM”, has created a certificate specifically for clients with out of court resolution in mind: “Out of Court Family Resolution Certificates”. To obtain one of these certificates, both parties must qualify for legal aid and they must commit to resolving their matter using a family resolution process such as collaborative law or four- way settlement meetings. Litigation is not permitted without authorization from Legal Aid Manitoba. If the parties do not work with their lawyers to achieve out of court settlements, and elect to go to court, they run the risk of having their LAM certificate cancelled. The intent of this approach is to focus on the best interests of the children and families as well as encouraging more effective ways to settle disputers.

In order to determine if one qualifies for a certificate, LAM reviews the applicant’s complete financial situation, including income, assets (including a house or RRSPs), debts, and whether or not money will be available to pay legal fees at the end of the case. The guidelines for income threshold to be eligible for legal aid are based on gross family income and family size. The typical guidelines are as follows:

Family Size Gross Family Income
1 $23,000
2 $27,000
3 $31,000
4 $34,000
5 $37,000
6 $40,000
7+ $43,000

 

Legal Aid Manitoba will also look closely at the legal matter to determine its appropriateness for this process. Whether one qualifies for assistance is solely at the discretion of LAM.

Alternatively, LAM also offers an Agreement to Pay (ATP) Program to help applicants pay for their legal services. If someone qualifies for this program, LAM requests an initial payment be made and then ongoing, interest-free monthly payments until the cost of the legal matter has been paid in full. This can often be significantly more affordable than hiring a private lawyer. [i]

Wolseley Law LLP is now accepting Out of Court Family Resolution Certificates through LAM, as we strongly support the initiative to resolve matters outside of Court when possible. If you think you qualify for legal aid and are interested in resolving your matter outside of Court or have already applied and been approved for this certificate, we may be able to assist you. If you do not know if you qualify for assistance, we would be happy to help you with your application at our office. You can contact us at al@wolseleylaw.ca, through our website www.wolseleylaw.ca or by telephone at 204-977-1706.

[i] Information taken from the Legal Aid Manitoba Website: https://www.legalaid.mb.ca/financial-rules/do-i-qualify-financially/

Dec 06
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The New Family Law Model in Manitoba

By Family law

By Leah Klassen

“The Only Constant in Life is Change”

We often hear from clients dealing with family law matters that the process is far too time consuming and costly, and we certainly can’t argue with this. Time and time again, we’ve seen how significant time and expense could have been avoided simply by the court system and lawyers alike handling the matter more effectively.

In February of 2019, a new model for the family law system was implemented in Manitoba. The intention behind this new model was to address these issues by placing significant emphasis on the proper steps being taken at the beginning of the process, encouraging timely disclosure of relevant information and, most importantly, encouraging settlement outside of court.

The majority of people seeking our assistance want their matter to be dealt with amicably, efficiently, and nowhere near a courtroom. The new model encourages this by requiring certain prerequisites to be completed before an initial court date can be scheduled. One of these prerequisites is confirmation that the parties have attempted to resolve the matter prior to going to court. These attempts can include mediation, four-way meetings between the parties and their lawyers, or even meetings between the parties themselves, (where parties don’t have lawyers themselves).

Additionally, separating parties will now have to prepare a new court-required prerequisite of a written parenting plan. This is not an official document, but rather a document that should set out, in detail, a plan for the children’s residence, schooling, contact with the both parents and family members, and any other concerns or special needs of the children. Both parents are also required to attend the “For the Sake of the Children” program, and although this is not a new requirement, it continues to be a valuable one. We find that almost every one of our clients who has attended the program has advised us how useful it has been. The combination of the new prerequisites with the former ones is meant to lead to the increase of early, out of court settlements.

Financial disclosure is often the cause of delays in the court process. Financial information provided is often late, incomplete or simply not provided at all. Income taxes, T4s and calculating your monthly expenses are all types of information that the Court requires. Anyone who has been through a family legal case, would probably agree that giving and receiving financial disclosure often poses a significant challenge. The new model has addressed the delays that often occur by requiring full financial disclosure as a prerequisite prior to an initial court date being scheduled for any matters involving support or property division. In most, if not all cases, you will be required to fill out a Form 70D Financial Statement, with income tax returns and proof of year-to-date income. Before going to see a lawyer or beginning your family legal process, it is useful to gather your last three years of income tax returns, or if that is not available, at least the last years’, as your lawyer is sure to ask for this and will be incredibly pleased if you have it ready to go!

The change to the family model applies to variations of Final Orders, Petitions and Petitions for Divorce that are contested, and property division issues. If you are interested in seeing if and how these changes apply to your circumstances, be sure to contact your lawyer to discuss. Should you be a self-represented individual, ensure that you are familiar with the new model and take note of changes to court forms, so as not to delay the resolution of your matter.

Leah Klassen is an associate at Wolseley Law LLP. The information presented in this article is not to be considered legal advice nor fit for any particular purpose. You should consult a lawyer with any questions specific to your situation.

Apr 06
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Travelling to the US or other countries with children

By Family law

The Canadian Bar Association has recently released, as a part of their “Legal Health Check” series, a new handout talking about what steps and paperwork should someone do if they are planning to travel internationally with a child. As a part of their handout they discuss document requirements and suggestions as well as a tips section on children travelling alone. Have a look at their PDF here: “CBA LEGAL HEALTH CHECK: TRAVELLING WITH A CHILD”

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