ADDITIONAL Information by Topic
This page contains information on the main topics in family law including:
custody and access
Scroll through to find out more information. Helpful links on each topic are also provided.
When you have been living with someone for a significant period of time, whether married or not, there are often property issues to be dealt with. Property can include real property like a home or cottage, the contents of the home like furniture, vehicles and boats, investments, pensions, and personal property.
For married spouses, the law says accumulated assets and debts need to be shared. Equalization is the process of valuing and dividing the net family property equally. Net family property is calculated by considering the net worth of each party at the beginning of the relationship and the value of the property (assets less debts) on the date of separation. Any value accumulated or changed during the marriage is shared equally, leaving each party with half of the value of the property. Prior to division net worth at the date of marriage is taken into account. For example, if you had more money coming into the relationship, you will be given credit for that and have more money coming out of the relationship.
Sharing equally does not mean half of each asset belongs to each spouse. For example, one person could keep the matrimonial home and one person could keep all the RRSP's, assuming the equity in the home is equal to the RRSP values.
How property is divided can also be creative taking into account the needs of each party, support obligations, and the needs of any children.
These links will provide you with further information about property division:
Community Legal Education Ontario ("CLEO") website page contains a booklet with respect to property
Unmarried Partners ("Common law")
Where the parties were not married, despite what many believe, there is no legal obligation to equalize property. Property in two people's names will be assumed to be shared equally. However, if you paid into property such as a home held in the name of your former partner, you may have a trust interest in that property and may be entitled to significant value of it. Similarly if you are not married but there are children and one of you accumulated assets such as RRSPs or pension while the other cared for children, there may be a claim to share that asset.
Each situation is unique you should seek legal advice for your personal situation.
Here are a few interesting articles on property issues related to common-law or non-married persons:
9 frequently asked questions about common-law unions, Financial Post, March 8, 2013
'Love and trust won't cut it': Couples need to clear up common-law confusion, Financial Post, March 9, 2013
the CLEO book mentioned above for married spouses includes some information for unmarried partners as well
Custody and ACCESS
Parenting is often a very emotional issue for separating partners.
Custody relates to parents making decisions impacting a child's life, including their education, religious upbringing, and medical treatment. A sole custody term or order is when one parent has the final say in these decisions. Joint custody means the parents have to consult and agree on the major decisions for a child. Some agreements and court orders have a consultation term, but give final say to one parent. This authority most often goes with the parent who has the child living with them the majority of the time.
Many agreements avoid the use of the word "custody" because it can be a loaded term. Instead parenting plans are developed that discuss how decisions are made for a child and the basic terms parents agree to follow in making those decisions.
The term "access" general refers to the time a child spends with the parent they do not have primary residence with. In some cases, it will be supervised (either by agreement or court order). In other cases, it will be a shared parenting and residence schedule, with a child spending equal time with each parent.
Everyone's situation is unique. You will either need to come to an agreement about where the child lives and how much time they spend with each of you, or you will have to argue that issue before a judge. Putting the decision in the hands of a judge who does not know your family can lead to outcomes neither parent wants. Negotiated resolutions are almost always better than court imposed solutions. However, if agreement cannot be reached, the court process is available.
To discuss the situation further, and receive an opinion as to what may be best for your situation, contact us for an appointment.
It is recommend you discuss your personal situation with a lawyer before applying the guidelines below to your situation.
A Custody, Access and Parenting Plan guide is provided by CLEO
The Ministry of the Attorney General has a terrific website with summary information, court procedures guides, and explanations of the different areas of family law. I encourage you to review this information: http://www.attorneygeneral.jus.gov.on.ca/english/justice-ont/family_law.php.
The Department of Justice offers information on Making plans: A guide to parenting arrangements after separation or divorce.
There is also a publication called "Where do I Stand? A Child's Legal Guide to Separation and Divorce"which can be helpful depending on the age and maturity of your child.
If you have younger children, the book "Two Homes" by by Claire Masurel and Kady Macdonald Dentonis an excellent book to help your child adjust to having two different places to call home. It is a child focused and simple rendition of having two places for everything, including where to sleep. Many book stores carry it. I have found it on amazon.ca . I have no connection to this book or the authors, I have just found it a well written and useful tool for younger children in this situation.
Child support is payable monthly by the parent who does not live primarily with the child so long as that child is entitled to support. The main criteria for child support to be payment is usually that the child is 18 years of age or younger, and/or is in a program of full-time education, often to the completion of the first degree or diploma of post-secondary education. In some cases support may continue beyond that time, although currently that is rare.
Child support is based on the payor's gross income (line 150 of the income tax return). If you know this amount, you can easily calculate child support by using the Child Support Guidelines. Click here to access the Government of Canada federal Guideline calculator.
Child support one of the most direct areas of the law because of the Guidelines and because of the case law that is rigorous in applying those Guidelines. You determine gross income, apply the guideline table amount, and determine a monthly amount payable.
In some cases it may be necessary to go beyond gross income including:
determining the actual or real amount or potential of someone's income who owns and operates a business or is self-employed
determine what gross should be (imputed income) where someone is intentionally under-employed or unemployed
whether or not there should be an off-set of child support based on a shared parenting schedule
if someone's income is over $150,000.00, whether the table amount should still be applied.
Only in extreme and unique circumstances will any variation be made from the Child Support Guidelines.
Community Legal Education publishes a helpful guide on child support and the child support guidelines. Click here if you wish to review this document.
Off-set Child Support in Shared or Split Parenting
When a child spends over 40% with the non-residential parent, a Court may off-set the child support amounts or order an amount less than the table amount to reflect the costs of shared parenting. This also may occur where there is split custody (when one or more children reside with one parent and one or more children reside with the other parent).
In off-set calculations, you determine each person's gross income, figure out what each would owe the other in child support, and one person will pay the other the difference. For example, if the mother owes $400 per month and the father owes $300 per month, the mother would pay the father $100 per month. Off-setting child support can be negotiated into separation agreements and ordered by the court. Exploring if this would work in your particular situation should be discussed with a lawyer in great detail. Shared parenting, and the corresponding child support adjustment, is not a certainty.
Section 7 and Other Child Expenses
In addition to monthly support amounts, a parent may be obligated to pay for "special or extraordinary expenses" as set out in section 7 of both the Federal and the Ontario Provincial Child Support Guidelines. These expenses are often called "section 7 expenses". These types of expenses are generally shared between the parents in proportion to their income. Expenses would include items like braces or health and dental care amounts beyond the scope of insurance, and for "extraordinary extracurricular" activities. What qualifies as a special or extraordinary expense can be dependant upon the lifestyle of the parties during the marriage or relationship and their incomes. In almost all cases, daycare and child care expenses are a section 7 expense.
If you have questions about section 7 expenses it is recommended that you consult with a lawyer to discuss your personal situation further.
Parents are often concerned about the ability to enforce a child support agreement they reach or court order they receive. The Family Responsibility Office ("FRO") is an administrative government body which enforces child and spousal support orders. If you have a support order, the FRO is the only enforcement agency available to be used. They are governed by the Family Responsibility and Support Arrears Enforcement Act, 1996 and the Interjurisdictional Support Orders Act, 2002. The FRO has the ability to garnish pay cheques and enforce consequences for non-payment, including incarceration and loss of license in more severe cases. If you have questions regarding your existing order and its enforcement you may contact the FRO directly.
This area of law is not as clear as child support. Spousal support needs to be first looked at in terms of entitlement and need. Factors of entitlement come from the wording of the legislation and some important cases. Factors include duration of the relationship, if there were economic disadvantages from the relationship suffered by one party, the ability of someone to be self-supporting, differences in income, and whether or not there were children. Spousal support could be time-fixed or indefinite, possibly with review. Two important case law influences that review this issue are Moge and Bracklow. There have been other cases which have reviewed this issue since
Due to the many potential outcomes, the Spousal Support Advisory Guidelines ("SSAGs") have been developed to give a general framework and suggest a range of support that would be appropriate. Spousal support can be dealt with in monthly support, a lump sum, or a combination of both. The amount one spouse might pay to the other will fluctuate. Married and unmarried partners have equal claims to spousal support. For a more detailed look which explains the origins and philosophy of spousal support, review the Spousal Support Guidelines themselves, along with the Revised Spousal Support Guidelines User’s Guide.
Spousal support is enforced through the FRO. You will find details above in the Child Support section.
More Information and Helpful Links
The Ministry of the Attorney General has a helpful website that explains the basic principles of spousal support.
There is also an online tool that you can use to calculate your potential support amount to be received or paid. This website applies the basic principles of the SSAGs but there are many inputs and strategies to using the spousal support calculations and lawyer assistance is recommended.
A User's Guide to the SSAGs can be found by clicking here
In particular, entitlement is discussed as an update to the SSAGs here
CLEO also publishes a booklet on spousal support
How can we help?
We can review your specific situation to provide you with a legal opinion as to your entitlement to receive, or obligation to pay, spousal support. If money is payable or will be received, we can strategize and get creative to discuss various options related to lump sum, monthly, or a blend of payments to ensure your needs are met and/or obligations fulfilled. This will help you make decisions about your future.
To discuss what level of spousal support is possible in your situation, please book an appointment.