- Newmarket Family Law Services
- Family Law in Ontario: A Primer
- Differences Between Marriage and Common-Law
- Child Custody in Ontario
- Child Access in Ontario
- Federal Child Support Guidelines
- Spousal Support in Ontario
- Family Law and Domestic Violence
- How to Reduce Your Family Law Costs
- How Marriage Contracts, “Pre-nups” Work
- Family Law Trials are Expensive
- Family Mediation
- Child/Spousal Support
- Child Custody/Access
- Co-Habitation Agreements
- Divorce/Uncontested Divorce
- Family Responsibility Office (FRO) proceedings
- Marriage Contracts
- Marriage Contract Reviews
- Prenuptial Agreement
- Property Division/Equalization
- Restraining Orders
- Separation Agreements
- Support Termination
- Travel Consent Letters
- Variation Applications
Family law in Ontario is built on a number of over-arching principles:
- “The Best Interest of the Children” – This principle is reflected in Children's Law Reform Act, RSO 1990, c. C.12 - Ontario.ca. What this means for separating parents is that children of a marriage (or common-law relationship) must continue to be cared and provided for by their parents. The court looks at and considers emotional ties between parents and the child(ren) and a stable home environment, as well as the ability and willingness for a parent to care for the child.
The “best interest of the child” also means that family courts are inclined to maintain stability in the lives of children, post-separation and post-divorce.
Ontario family law is also set up to deal with practical issues such as parenting (child custody, child access), child support, spousal support, and division of net family property.
Child support can also be viewed this way: it is the right of the child to enjoy a similar standard of financial stability with each parent. Talk to a Shirtliff Hinds Law lawyer to determine the child support claim in your matter.
- Canada has had “no fault” divorce since 1968. What our family lawyers at Shirtliff Hinds Law tell our clients is that in Canada, we technically have three grounds for divorce: separation of more than one year, cruelty, and adultery.
Cruelty and adultery are rarely used in Canada because you must be able to prove either in court. To prove adultery and cruelty is a long legal road and the time involved would likely be more expensive than the one-year separation which permits divorce. A year of living separate and apart may be quicker.
In addition to being more expensive, cruelty, has a high legal threshold:it must be an “ongoing course of conduct” rather than an isolated incident;be of a “grave” and “weighty” nature;and “persistent harassment and abuse.” Lastly, cruelty can be either physical or mental. If you are able to show that the cruelty of your spouse was intolerable, then the Court may waive the one year of living separate and apart and grant you a divorce.
In the same vein as cruelty, adultery (having an affair) is not used by most Canadians as grounds for separation and divorce. While cheating on your spouse is reprehensible, the Canadian family law system is simply not set up to punish bad behaviour. Canadian courts have a high threshold to prove adultery.
Further, some Canadians believe that if their spouse had an affair, this entitles the non-cheating spouse to a bigger share of net family property. This, too, is incorrect as is explained in the next section, (3) below.
For all these reasons, living separate and apart, with no hope of reconciliation is the legal route that most couples choose to go to get a divorce. And equally important, Ontario family law deals with practical issues such as child custody, child access, child support, spousal support, and division of net family property.
Here is an excellent resource from the Ontario Ministry of the Attorney General, What you Should Know about Family Law in Ontario.
- Ontario family law presumes that both spouses contributed equally to the marriage, in terms of money, energy, effort, child-rearing responsibilities, and so on. Upon marriage breakdown, Canadian law is written to ensure that as both spouses go their separate ways, both spouses leave the marriage on an approximately equal financial footing. This is the principle of division of net family property, which is why each spouse must submit financial disclosure. Then, the spouse with the larger assets pays the other spouse one-half the difference. This is called the equalization payment.
Here’s an example of how equalization works, with real numbers.
- For married couples ending long-term marriages, one of the purposes of spousal support is for the spouse who has lost career opportunities as a result of the relationship to be able to transition back into the workforce through education and re-training. It works like this: if the duration of the marriage and the age of the recipient add to more than 65, spousal support will be indefinite. It’s called the Rule of 65. Canadian courts assume that it is not realistic for someone to retrain and re-enter the workforce at that point in life.
- Mandatory Information Program (MIP).
The Ontario Ministry of the Attorney General requires that all spouses and common-law partners undergoing family law proceedings attend a 2-hour Mandatory Information Program (MIP). These sessions are free and are available at family court locations across Ontario.
Importantly, you do not attend the same 2-hour session as your ex-spouse. You will be required to confirm that you have attended at the session.
The Mandatory Information Program is designed to provide you with:
- The effects of separation and divorce on adults and children
- Alternatives to litigation
- Family law issues
- The family court process
- Local legal and non-legal resources and programs for adults and children.
For most family law issues—for example, child custody, child access, and child support—it does not matter if you and your spouse were legally married or living common-law. But when it comes to the rules about how property is divided, there are some important differences. Married couples automatically share the value of their property if they separate or if one spouse dies. Inheritance depends on whether or not a couple is legally married. A Newmarket family lawyer at Shirtliff Hinds Law can give you specific advice as it applies to your case.
Property includes everything you own:
- Your home (principal residence) and any other real estate you own (cottage, investment property)
- Your car and other vehicles
- Personal items, such as clothing, jewellery, books, and collectables
- Household items, such as furniture, appliances, and electronic equipment
- Bank accounts, RRSPs, investments, insurance policies, pensions, and other financial assets
- Any businesses
Each common-law spouse generally keeps his or her own property upon the breakdown of the relationship but they may share an increase in value of assets.
Whether you are married or common law for major property, like a cottage or a lump sum you were given by your parents, you must be able to prove that it was a gift for you alone, and not to be shared with your spouse, by providing accurate Financial Statements on that gift that go back years or decades.
For married couples gifts of money (large lump sums) that were put toward a down payment, or a mortgage on the matrimonial home or payment of debts during the marriage do not count as exclusions. Under Ontario law, the matrimonial home has special status in a marriage: both spouses are entitled to inhabit the home and benefit from real estate appreciation.
When a married couple separates, usually each spouse keeps the property they each brought to the marriage, but they share any increase in the value of their property that accrued during their marriage. The Family Law Act is the Ontario law that deals with the division of property for legally married couples. For common-law spouses, there is no equalization payment.
Whereas married spouses have equal rights to possession of the matrimonial home, this right does not exist for common-law spouses. There is no “matrimonial home” for common law partners. However, if one common-law spouse contributed time or money for house improvements for a home owned by the other common-law spouse, you can make a claim for an interest in the family residence. (The claim is for “unjust enrichment”; “constructive trust” is the legal remedy.)
Common-law spouses can also make a claim for spousal support, provided that they have a child together and/or have lived together for three years or more.
Lastly, spouses with children from previous relationships may need to pay child support for those children from the other spouse. If you have been acting as a parent to those children—celebrating birthdays, holidays, and taking vacations together—the Court may compel you to pay child support for children who are not your biological children. It’s a legal principle called in loco parentis and you may be required to pay child support to your step-children (or, receive child support if your ex-spouse or ex common-law partner was acting as a parent to your biological children).
Given the differences in how the Courts treat married couples and common-law couples with regard to property division on separation, it is a good idea to contact a Newmarket family lawyer at Shirtliff Hinds Law, to make sure your legal entitlements are protected.
One of the biggest issues that separating spouses and common-law partners with children will need to decide is, which parent will have custody and which parent will have access? In a family law context, custody and access have very legal specific meanings. Child custody and child access are critical to a Separation Agreement in Ontario; a Newmarket family lawyer at Shirtliff Hinds Law in Newmarket can advise you on the best options for your particular situation.
Importantly, your marital status will determine which Act applies to you for the purpose of child custody:
- If you are legally married and in the process of getting a divorce or have already obtained one then the Divorce Act R.S.C. 1985, c.3 will apply.
- For situations where you and your former spouse/partner are living together as a common-law couple or are not living together but have a child together, the Children’s Law Reform Act R.S.O. 1990, c. C.12 will apply.
Child custody is the legal right to decide how to raise your child, including important decisions about your child’s education, religion, and health care.
Custody is not about which parent the child lives with or how much time a child spends with each parent. Rather, even if only one parent has custody, the child might spend equal time living with each parent. Or the child might live mainly with one parent, but both parents have custody and share the decision-making.
That said, there are a number of possible variations on child custody:
- Joint Legal Custody: Both parents have input into which major decisions affecting the children, including health and education. The residence and visitation arrangements for the children may vary widely. Joint legal custody requires a high degree of cooperation post-separation and divorce. Joint custody does not mean, however, that children reside equally with both parents
- Shared Custody: Both parents spend at least 40% of the time with their children.
Sole Custody: Only one parent has custody of the children. The children reside with the parent who has sole custody while the other parent may or may not have access and visitation rights. Major decisions affecting the children, including health and education are made by the parent with sole custody.
Split Custody: One parent has custody of some children, and the other parent has custody of other children. Separating younger children from their siblings is generally not a good idea, but pre-teens and teenagers may choose to live with different parents.
A family lawyer at Shirtliff Hinds Law in Newmarket can advise you on the best option for you, and equally important, the best option for your children.
If you do not have custody of your children, you will be the non-custodial parent. When a child lives mainly with one parent, the child and the other parent usually have the right to spend time together. This is called child access in Canada; it is called visitation in the United States. A Newmarket family lawyer at Shirtliff Hinds Law can provide you with wise advice for your particular situation.
Having child access means you have the right to: visit your child/ren as well as ask the custodial parent, your child’s teacher, dentist, doctor, and care-givers, for information about your child’s health, education, and well-being.
Typically, an access schedule is created, which outlines how much time and when a child will spend with the non-custodial parent. For example, an access schedule will say that the child will spend every other weekend and one (or two) nights per week with the access parent. As well, the access schedule will list time the child will spend with the access parent during such times as long weekends, summer holidays, school vacations, and March Break.
Importantly, while life’s emergencies are inevitable, if the custodial parent purposefully interferes with the child access schedule to the point where the access parent cannot see the child, this is ground for legal action. If you find that your child access is being restricted by your ex-spouse, speak to a Newmarket family lawyer at Shirtliff Hinds Law, to seek a legal remedy.
Children have the legal right to be financially supported by their parents. Federal Child Support Guidelines have existed since 1997 and have been updated periodically. Here are the basics: a parent must pay child support for a child who is a minor (under 18 years of age) and who remains in the care and control of the parents. The child support amounts are based on the annual income of the payor and are paid monthly. Child support is paid to the parent with whom a child resides, to help offset the child’s living expenses. In addition, the amounts are also dependent on how many children you have with your spouse. A family lawyer at Shirtliff Hinds Law in Newmarket can give you legal advice for your specific situation.
The federal child support guidelines are, in fact law, and not mere suggestions. Here is the 2017 Child Support Table.
As with many things in life, there are exceptions that may apply to the “table amounts”:
- The parents have split the custody of the children
- The payor parent resides with the child more than 40% of the time
- The payor is not the biological parent of the child
- The child is over the age of majority
- The payor earns over $150,000 annually
- The table amount would cause undue hardship to the payor
In addition, there may also be so-called special and extraordinary expenses such as: medical expenses not covered by extended heal plans, educational needs including post-secondary education, daycare to permit a parent to work and extra-curricular activities such as sports, dance special school trips and the like, that the parents will need to decide how to fund for their children. Private school fees may also count as special expenses.
Lastly, depending on your level of income, child support obligations can sometimes conflict with spousal support obligations. Those with lower income can find it challenging to pay both; this is not the case with higher income earners. A family law lawyer at Shirtliff Hinds Law in Newmarket can guide you through your particular child support obligations or entitlement.
Courts have the authority to order spousal support to be paid from one spouse with higher income to the spouse with lower income. The intent behind spousal support is to have both spouses or common-law partners leave the relationship on an approximately equal footing. As well, spousal support can be for the purpose of assistance if one spouse or common-law partner has been out of the workforce for years, usually due to child-rearing responsibilities, and may need re-training to re-enter the workforce. Contact a family lawyer at Shirtliff Hinds Law in Newmarket because there are many considerations that go into making a spousal support calculation as well as the term of the payments.
Married spouses can apply for spousal support under the Divorce Act, Section 15. Factors that the Courts weigh when considering spousal support include:
Married spouses and common-law spouses can apply for spousal support under the Family Law Act, Section 33. Spousal support eligibility is determined this way: 1) two common-law partners who are not married to each other and have lived together continuously for a period of not less than three years; or 2) two people who are not married to each other and have cohabited in a relationship of some permanence, if they are the natural or adoptive parents of a child.
Spousal support amounts are based on the Spousal Support Advisory Guidelines (SSAG). SSAG are not based on mandatory or legislated guidelines. However, courts are reluctant to deviate from guidelines. Our Newmarket family lawyers at Shirtliff Hinds Law input the spouses’ salaries and all relevant information, such as duration of the marriage and age of the spouses, to arrive at amounts indicating how much spousal support should be paid and for how long. The family lawyers at Shirtliff Hinds Law in Newmarket, and indeed all family law firms, need special software to make these spousal support calculations.
Here is the Government of Canada’s website on Spousal Support Advisory Guidelines.
The Court reviews the calculations for spousal support and decides what is a fair and reasonable amount. However, judges are not required to follow SSAG and there is room for discretion.
A family lawyer at Shirtliff Hinds Law in Newmarket can help you with spousal support, whether you are the support payor or the support recipient.
When married spouses and common-law partners are undergoing separation and divorce, heated argument and even domestic violence sometimes enter the picture. Someone calls 9-1-1. When the police arrive, they are compelled to act and take the accused into custody while things get sorted out at the police stations. Our Newmarket family law lawyers are not trying to downplay or minimize serious family violence issues. Intimate partner violence seems to be on the rise all across Canada, unfortunately. In 2016, Statistics Canada found that slayings committed by past or present intimate partners made up an average of 19% of all solved homicides over the past decade. That’s 72 homicides in 2016. In Ontario alone, 5 women were killed by their intimate partners in January 2018.
We are however, pointing out that when either spouse is in jail, Family Law becomes Criminal Law; contact any of our Criminal Defence Lawyers at Shirtliff Hinds Law in Newmarket.
When the police respond to a 9-1-1 call by either spouse, they are required by law to act. This means arresting the person who appears to be the perpetrator. Similarly, if a neighbor or another family member, contacts the police who come across a family dispute, the police have no choice but to make an arrest. This is the law in Ontario.
Most commonly, the accused will be taken away in handcuffs, and locked up until a bail hearing is arranged. That probably means at least one night in jail.
Once bail has been established—assuming the bail judge agrees and bail money can be raised—the accused may be permitted one visit home, accompanied by a police officer, to pick up some clothes and other personal items. That’s the last time the accused is permitted home until the spousal assault trial is completed.
While a spouse is in jail, he or she is unable to work and earn income. This is an important consideration, especially if the accused is a low income earner. Once bail is granted, depending on the line of line of work you’re in, you may or may not be able to work. And, a criminal record may negatively impact child custody and child access. There may be a temporary or permanent restraining order against you.
Our family lawyers at Shirtliff Hinds Law urge civil and considerate behaviour for all our family law clients. Like the saying goes: “Be kind. You don’t know what problems people are going through.”
Think of your children: it is never a good thing for them to see either parent in jail.
Here are some practical ways to help keep your legal costs down:
Find and organize all your documents. A family law lawyer will ask you for these and it is much more cost-effective for you to do this rather than pay the hourly rate of a law clerk or a family law lawyer.
You can start filling out your Financial Statement before you visit with your lawyer. (At Shirtliff Hinds Law, the Financial Statements are contained in our intake package.) Both spouses need to complete a Financial Statement. It will include your assets, your liabilities (debts), and any exclusions (for example, property, family heirlooms, or a lump sum you were gifted) and deductions for assets you brought into the marriage. The Law Society of Ontario (LSO) provides guidance on how to complete a Financial Statement.
You can also order tax documents from the Canada Revenue Agency online and your own marriage certificate. You will also need: titles and mortgage information on your house, vacation property, investment property; your investment statements and your bank statements, as well as line of credit and credit card statements.
- Provide complete and frank financial disclosure. Without a completed Financial Statement and all the supporting documents, which is exchanged with your spouse and his/her lawyer, family law proceedings cannot move forward. Negotiations will stall. A spouse can be compelled, via a court order, to provide financial disclosure; this can be time-consuming and expensive.
- Together with your spouse determine the way you would like to see your family law matters handled. If you are on reasonable terms with your spouse, writing a basic outline that includes child custody, child access, child support and spousal support and any decisions you might want to make about the family residence will be helpful to your family law lawyer. At least it is a place to start.
- Hire a therapist psychologist, social worker, or life coach to help you with emotional issues. Family lawyers are not trained to help sort out emotional and psychological problems of those undergoing separation. Hiring the right professional to help you will save you money, too.
- Hire a parenting coordinator. If you and your ex-spouse are fighting about child custody, child access, and childcare expenses, it may be a good idea to hire a Parenting Coordinator who is skilled at helping both parents work through these impasses.
Some couples elect to have a signed marriage contract in place—what Americans refer to as a “pre-nup” agreement—before and sometimes after the marriage. And, those who have been married two (or more times) and are now living in “blended families,” also choose to have marriage contracts drafted and signed. This is particularly true if one spouse owns a prosperous business, has an estate plan in place to transfer significant assets to adult children, or is looking after an elderly parent (who must continue to be cared for). If you find yourself living with a “significant other” and have significant assets that you wish to protect, it is never a bad idea to seek the advice of a family lawyer at Shirtliff Hinds Law in Newmarket who can help you draft a marriage contract that will hold up in court.
In Ontario, marriage contracts spell out the terms of separation or divorce, should the marriage break down. Marriage contracts can define:
- Ownership of property – List who owns what, how much it is worth
- Division of property – Property does not have to be equally divided
- Spousal support – Describe how spousal support payments will be made
- Educational, religious, and moral training of any children of the marriage
Importantly, marriage contracts cannot pre-determine child custody, child access, or child support. Nor can marriage contracts change the law that says each spouse has an equal right to live in the matrimonial home.
A marriage contract is valid when:
- It is written, signed, and witnessed
- Both spouses fully disclose all assets, debts, and liabilities
- Each spouse must obtain independent legal advice
- The parties must make their intent clear in the agreement
- There must be no fraud, undue influence, duress, or unconscionability (where the marriage contract is grossly one-sided)
If any of these requirements is not met, the marriage contract stands a good chance of being over-turned in court. Ontario recognizes marriage contracts from other provinces and countries if such contracts meet these same requirements and comply with Ontario law. If you would like to have a marriage contract drawn up, speak to a family lawyer at Shirtliff Hinds Law in Newmarket.
Only about 5% of all family law cases go to trial, but when they do, they are expensive for both spouses. All documents need to be double-checked, indexed, and printed out in huge binders for the Court. Witnesses need to be prepared. Opening and closing arguments need to be prepared. And all this needs to be done well before a family law trial begins. A family law trial can cost tens of thousands of dollars; it is not unusual to have a week-long trial that costs 6-figures. For these reasons, the family lawyers at Shirtliff-Hinds Law encourage our family law clients to settle their case through direct negotiation and avoid family law trials.