About Lawyer On Request
If you’re starting your research into family lawyers and feel incredibly overwhelmed with the ambiguity and complexity of prices, services, and time – you’re not alone
When it comes to family law, everyone knows their situation is unique to their lives. According to traditional legal services, every client pays the same hourly rate no matter the complexity of the service required. The process is often costly, and many turn to self-representation to save money and time. Without legal training, this can be a pretty risky way to approach such a crucial time in your life. We’ve seen this happen for years, and that’s why our team is here to provide a new look at hiring a lawyer:
Family & Divorce Law Services
First off, you do not need to show that the other person was at “fault”, so long as you have been living separate and apart and there is no possibility of reconciliation, you can apply for a divorce.
A divorce most commonly requires a year of separation before it can be granted however, the application process may start before the year is up.Exceptions to this rule require exceptional circumstances such as adultery or physical/mental abuse or cruelty.
Even if the exemption does not apply to you, you may start the application for divorce before the year is up. This approach still requires a year wait, but effectively cuts down waiting time once the year is up.
A divorce may be contested or uncontested. With the uncontested divorce process, the affected parties generally agree upon the terms of divorce, and reach consensus without the need for a trial or extensive court processes. With the co-operative nature of uncontested divorces, it is cheaper and faster than contested divorces.
The contested divorce process essentially exists in opposition to uncontested divorces. Complex legal issues, financial issues and increased layers of court proceedings all commonly arise in contested divorces. In both scenarios, it is wise to seek legal counsel to inform an involved party of their rights, possible strategies and experienced advice.
Notable Steps in the Process:
Divorce requires an Application to an appropriate court. The Application will need to be served on the other partner and any other parties involved. Proof of Service also needs to be filed with the court. The person bringing the application is called the Applicant and the spouse is called the Respondent.
The Respondent has 30 days to serve and file an Answer. Should the Respondent not do this, the process may continue with documents that may still satisfy a judge’s criteria for divorce.
Approximate Length of Divorce Process:
The court process may take roughly 3 – 4 months in uncontested divorces.
Several factors may affect the length of time of divorces in general. These factors include the spouses’ location, ability to cooperate, the court in which the Application is filed, division of property issues, child custody and access, as well as any issues related to support.
For further information regarding a the divorce process in Ontario, do not hesitate to contact us.
Legislative Provision – Section 8 of the Divorce Act
- 8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
- Breakdown of marriage
(2) Breakdown of a marriage is established only if
- (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
- (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
- (i) committed adultery, or
- (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses
What does custody and access mean?
Custody gives a parent the right and responsibility to make major decisions for their child. The parent that has custody is referred to as the custodial parent. Major decisions can include education, religion and non-emergency health care.
There are different types of custody
Sole custody gives one parent the ability to make all major decisions for the minor child(ren). Joint custody allows both parents to make the decisions together. In joint custody arrangements the amount of time spent with each parent and the primary residence of the child can vary significantly. The parents are given the opportunity to create a schedule that works best for the family. Where parents are unable to agree, mediation and the courts will assist.
Access is the time that a parent with whom the child doesn’t primarily reside with spends with the child(ren). The parent with access rights still has the right to be informed of the child(ren)’s health, education and welfare (Divorce Act s.16(5); Children’s Reform Act(CLRA) s.20(5)). Day to day decisions are made by the parent who is with the child at that given time.Where the parents are married and not yet divorced, both parents are considered to have custodial decision-making rights. However, if a parent moves out of the home after separation, the parent who remains with the child gets de facto custody under s. 20(4) of the CLRA, and the other parent is entitled to access only. This is why it is very important to create a separation agreement where both parents can set out how they wish to proceed. With a separation agreement both parents can maintain their custodial decision making authority and set out any other provisions they wish.
Parents can incorporate a parenting plan in a separation agreement in order to minimize conflict and disruption. A parenting plan is where the parents agree on decision-making authority between them and create a schedule on when the child gets to see each parent. If a plan is agreed to it becomes a binding contract and legally enforceable.
If the parents are unable to do this voluntarily, the lawyers can hold a meeting for both parents and try to assist them in coming to an agreement. If they fail to do that, the court may create it and it will be binding on both parties.
Courts have the ability, under s. 56 of the Family Law Act, to change an agreement if they find that it is not in the best interest of the child. However, they rarely interfere if it is not necessary to do so.
Who can apply for custody or access?
Biological parents, adoptive parents, stepparents, grandparents or any other third party can apply for an order for custody or access to the child.
Non-parent applications for custody can be more difficult, especially when a child’s parent is living, able and willing to care for the child. There are special requirements for non-parents, such as a mandatory police records check that is to be completed within the previous 60 days. They must also authorize the Children’s Aid Society in their area to provide a report that outlines the individual’s involvement in any CAS cases. Court records will also be checked for any previous family cases involving the non-parent. Finally, at the court’s request, criminal history of the non-parent may also be checked.
Applying for custody in Ontario
In Ontario, custody and access are governed by the federal Divorce Act and the CLRA. The Divorce Act applies to those who are married and getting a divorce. Under the Divorce Act, courts in Ontario can hear and determine the case if your spouse has been living in Ontario for at least one year preceding the custody proceeding (s.3(1)). If the child is connected to another province, the proceedings may be transferred on application (s.6). Elements that may connect the child to another province can include the school they attend, how much time they spend in the province and/or where their physician is location.
The CLRA applies to parents are not married or those who are not getting a divorce. In these cases, Ontario courts have jurisdiction to hear and determine the case where:
- The child’s normal residence is in Ontario (s.22(1)(a)).
- If the child’s normal residence is not Ontario but
- the child is physically in Ontario at the start of the application
- there is evidence that the best interest of the child is in Ontario
- no application for custody or access is started in another province
- no extra-provincial order has been recognized by an Ontario court
- the child has a real and substantial connection to Ontario; and
- on the balance of convenience it is appropriate to exercise jurisdiction in Ontario (s. 22(1)(b)).
It should be noted that courts have the ability to decline to allow the case in their jurisdiction if they believe that another court is more appropriate (s. 25).
Factors considered when giving custody
The test for resolving custody and access issues is the best interests of the child. The test is set out in both the Divorce Acts (s. 16(8)) and the CLRA (s. 24). The factors considered are:
- child’s physical well-being;
- child’s emotional well-being and security;
- the applicant’s plan for the child’s education and maintenance;
- child’s financial needs;
- child’s religious and ethical upbringing;
- parent’s understanding of the child’s needs;
- child’s wishes (this factor increases in importance with the child’s age);
- benefit of keeping siblings together; and
- bonding between a child and his caregivers.
The application of this test is fact driven and is determined on a case-by-case basis and is focused on the child’s needs rather than the parents’ rights.
Maximum contact principle:
Under section 16(10) of the Divorce Act, there is a legal consideration called the “maximum contact principal,” which essentially states that a child should have as much contact with both parents as is in the child’s best interest. If a parent fails to ensure that they foster the need for this contact, they may be deemed to have abandoned the child and it will be a consideration in custody and access determination. Although the CLRA doesn’t have the same provision, the courts will automatically apply it.
A parent’s conduct or misconduct is only taken into consideration if it affects the child or the parent’s ability to care for the child (Divorce Act s.16(9); CLRA s. 24(3)). Alcohol and drug abuse are two of the primary concerns. Violence towards the other spouse, child, or any other household member will be taken into consideration (CLRA s.24(4)). Self-defense or action taken to protect another person is not considered violence or abuse.
Supervised access is where the non-custodial parent is permitted to interact with the child only under the supervision of another adult. This can be at a specialized center where a social worker, counselor or any other designated party is assigned to be present. It can also include access to the child where the other parent is present.
Supervised access is usually enforced where the child is at risk in a parent’s care due to violence, alcohol or drug addiction or has health problems that may limit their ability to care for the child. The parent seeking the supervised access has to prove that it is necessary.
Enforcement of custody and access order
There are a number of measures in place to have custody and access orders enforced. Failing to follow a temporary or final order of the court is considered contempt, which can result in a fine or imprisonment.
Usually, there is a clause in the order that allows any police agency (Toronto Police, OPP, RCMP) to assist in removing the child from the parent who took the child and have them returned to the parent named on the order. Lawyers may also assist by contacting the opposing counsel and eliciting their assistance in having the child returned without police interference.
It is always wise to be as courteous as possible in such cases. If the other party is late in returning the child back a few minutes, it may be best to simply talk to them about the importance of timing. Police assistance should be a last resort.
Child is withheld or abducted:
The following are enforcement options when a child is withheld or abducted:
- Abduction of a child under the age of 14 by a parent or guardian in contravention of a custody order is a criminal offence under ss. 282–283 of the Criminal Code. The Attorney General starts an action under s. 283 to have the child returned.
- Under the Family Orders and Agreements Enforcement Assistance Act, a federal government agency assists in tracing an abducted child or abducting access parent. Either a police force or a custodial parent under a court order or an agreement may seek assistance from this unit. If the applicant is a custodial parent, court authority is required.
- If a child has been abducted to a state that is signatory to the Hague Convention, the custodial parent may contact the Central Authority in this jurisdiction, which will in turn contact the Central Authority in the receiving jurisdiction to take steps for the recovery of the child.
- Under the CLRA, the court has authority to make orders directing the appropriate police force to locate and apprehend a child, including search and entry orders.
Are you recently separated? Do you have a custody or access issue?
AP Lawyers can help. Contact us today for a confidential consultation.
Once parents with children separate, the issue of support for the children needs to be dealt with as quickly as possible. .
During the separation process (whether culminating in a divorce or not), a child will likely spend most of his or her time at one parent’s home versus the other. When a child spends most of their time at one home, the parent in that home will likely rack up higher expenses for raising the child.
That parent isn’t left out in the cold as they must get help from the other parent. The other parent must pay money to the parent/primary caregiver to help with the expenses of child raising; this is called child support.
There is a legal duty for parents to support their dependent children. The law defines a dependent child as anyone under the age of 18 unless they have married or have voluntarily withdrawn from parental control and became independent by the age of 16. In the case that a child is enrolls in a full-time post-secondary degree and/or has a disability, child support may extend beyond the age of 18.
Parents/caregivers can work out a support agreement for themselves. When this is not possible, getting legal services (which we can certainly provide) can help hammer an agreement out that both parents can agree upon or pave the way for an order of support. A parent can apply to court for an order of support. An order of support is the main way in which child support becomes legally binding.
Information required to determine Child Support Payable
Naturally, financial information is required including things like income tax returns, statements of earnings from employer (or from the parent if they own a business), and notices of assessment/reassessment. The parent paying (payor) the child support must update their financial information if the other parent requests it. Generally, updates can be requested once a year.
The Family Responsibility Office
The Family Responsibility Office of Ontario (FRO) is the legal enforcer of payments. In several ways, the FRO acts as a buffer or intermediary for the courts and each parent by handling things between the parties such as receiving and forwarding payments, taking necessary action where payments are missed and collecting payments from payor parents outside the jurisdiction. The court automatically files all support orders with the FRO.
Child Support Guidelines
The Child Support Guidelines is used in determining how much a payor parent should pay for child support. The Child Support Guidelines has a table for each province and territory which shows how much support should be paid, based on the payor parent’s gross income.
If you are a step-parent, the court may order that you pay an amount lower than the Table Amount.
Also, in Shared Custody situations an amount less than the Table amount may be ordered. In these cases, the court will figure out the Table amount payable by each amount and will subtract the smaller amount form the larger amount. The same could also apply in Split Custody situations.
Special or Extraordinary Expenses
In addition to paying support according to the table amount, payor parents may have to contribute towards expenses such daycare, medical or dental insurance premiums, medical expenses, extra-curricular activities, etc.
Which Table applies to me?
The table amount to be applied depends on the circumstances. For example: if the payor parent lives in Saskatchewan and the child lives in Ontario, the Table for Saskatchewan will apply. If both parents live in Ontario, then the Ontario Table will apply but if the payor parent lives in the United States as an example, and the other parent lives in Ontario then the Table for Ontario will be used.
The Child Support Guidelines allows the courts to imput income to a parent in certain circumstances, most often where a parent is intentionally unemployed or underemployed. The relevant provision reads as follows:
19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
(a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
(b) the spouse is exempt from paying federal or provincial income tax;
(c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
(d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
(e) the spouse’s property is not reasonably utilized to generate income;
(f) the spouse has failed to provide income information when under a legal obligation to do so;
(g) the spouse unreasonably deducts expenses from income;
(h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
(i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.
Child Support and Access
Lastly, payment of child support is not dependent on whether a person gets access to the child or not. A parent may be obligated to pay child support even if they have zero access to the child. Conversely, a parent can continue to have access to a child even where child support payment is owing.
Imputing income for Child Support
One of the most fundamental issues that accompanies a separation/ divorce for parties with children is the matter of child support. In Canada, a judge can effectively ‘impute’ the income of a parent to be paid for child support purposes. Parents have an obligation to jointly support their children based on their income and ability pursuant to Section 26.1(2) Divorce Act.
Family lawyers are experts when determining how much of a parent’s income is accountable for child support. This is based on the payor parent’s gross income compared to the value in the corresponding Federal Child Support Table. The judge has the discretion to establish the amount of income to be imputed based on that parent’s earning capacity and not necessarily what that parent currently earns. This is a result of complications that can arise in situations when a parent is self-employed and their income tax documents do not accurately emulate their income or when the payor parent intentionally chooses to be unemployed or in a position with a low salary in order to avoid their moral and legal obligation to pay child support.
Section 19 of the Federal Child Support Guidelines (“the Guidelines”) outlines situations that a judge can order income imputed to a parent. As the court has the autonomy to use their discretion in such scenarios, income can also be imputed in situations not listed in Section 19 of the Guidelines. Courts will always place the interests of the child first and place precedence on the child’s right to support over the parents interests. Therefore, should child support payments become an issue in a family law matter, the court can effectively intervene and critically analyze a parent’s career decision and/or how they operate their business. The onus of proof will be placed upon the parent owing child support payment.
When is income likely to be imputed to a payor?
Section 19 of the Guidelines states that imputed income can occur in any of the following nine scenarios. Note that this is a non-exhaustive list:
The payor parent is exempt from paying federal or provincial income tax.
The payor parent receives their income from a trust that they are a beneficiary of.
The payor parent did not comply with their legal obligation to disclose income information.
The payor parent is unreasonably deducting expenses from their income.
The payor parent is not reasonably generating an income from the use of their property.
The payor parent intentionally continues to remain unemployed or under-paid in their employment.
The payor parents lives in a country where the tax rates are much lower than Canada’s.
The payor parent is diverting their income to alter the amount of child support paid.
The payor parent acquires a portion of their income from dividends, capital gains and/or other sources that have a lower tax rate or are exempt from tax.
In the case of Risen v. Risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the court stated that although Section 19 of the Guidelines sets out a non-exhaustive list, and the court has the discretion to deviate from it, the case must bear some similarity to the scenarios enumerated. Also inMascarenhas v. Mascarenhas (1999), 44 R.F.L. (4th) 131 (Ont. Ct.)(Gen Div), the court held that any scenarios where the court must use their discretion outside of the list enumerated in Section 19, should bear some resemblance.
In the case of Risen v. Risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the court stated that although Section 19 of the Guidelines sets out a non-exhaustive list, and the court has the discretion to deviate from it, the case must bear some similarity to the scenarios enumerated. Also in Mascarenhas v. Mascarenhas(1999), 44 R.F.L. (4th) 131 (Ont. Ct.)(Gen Div), the court held that any scenarios where the court must use their discretion outside of the list enumerated in Section 19, should bear some resemblance.
Case law is imperative to the matter of imputed income as the courts have a broad discretion on determining the amount of child support to be paid.
In Contino v Leonelli-Contino 2005 SCC 63, the court initially imputed the father’s income according to the Federal Child Support Table. However, after analyzing the child’s custody and access, the court determined that the father owed less than what was specified in the table because the child lived with the father approximately 50% of the time.
Another case that displays the courts discretion is Quintal v. Quintal 1997 9576 (ON SC) where a father who was forced to resign for his retirement asked the court to vary his child support payments because his income significantly plummeted from $51,577 to a pension of $12,288. The court reduced his child support payments for six months as he stated he was actively seeking employment elsewhere and therefore unable to make his child support payments. Actively seeking employment is a debateable point in almost all cases as the father could have intentionally been unemployed. However, the court granted him six months until his payments increased again whether he was employed or not because his health, desire and expectation to find employment justified imputing income to him in the reasonably foreseeable future, if not immediately.
The main issue among all imputed income cases is that the court will always place the child’s interest first as it is not fair for them to bear the financial consequences of a parent’s misconduct.
One of the most popular circumstances where a court will impute income as mentioned above is when a parent intentionally leaves a secure employment to pursue self-employment. This can be for whatever reasons the parent chooses as they have the autonomy to do so. However, the parent must be responsible to still maintain their child support payments regardless of their endeavours. The court can exercise their discretion and may vary support payments for a specific time period.
In Depace v. Michienzi(2000), 5 R.F.L. (5th) 40 (S.C.J.), the court stated that they may allow a “grace-period” to account for start-up loses a parent may face.
Further expressed in Visnjic v. Visnjic (2000), 7 R.F.L. (5th) 195 (S.C.J.), the court held that if a parent wishes to engage in self-employment they must continue to meet their financial responsibilities out of their capital or through borrowing. Where a parent chooses to venture into a self-start-up career outside of their usual domain, a court will most likely impute income as displayed in Le Page v. Porter (2000), 7 R.F.L. (5th) 335 (S.C.J.) where the parent left working as a social worker to engage in stock speculation and real estate investing. The parent did not speculate that his income would plummet as much as it did; however, pursuant to Section 26.1(1) Divorce Act, he had an obligation to pay child support and his income was imputed effectively.
A court can impute income from a parent in many different scenarios based on their discretion. There are many different circumstances that will warrant an income to be imputed, as displayed above, and many that are reasonably foreseeable based on the non-exhaustive list under Section 19 of the Guidelines.
It is important to be prepared in such matters and to know if income may be imputed to you. At AP Lawyers, we have many years of experience and know what the court is looking for when they are determining whether or not to impute income to a parent. We can represent and assist you should you find yourself in a vulnerable position and either require child support payments from a spouse or are the spouse owing child support payments.
Contact us online, by email at firstname.lastname@example.org, or call 905-492-7662.
What is spousal support
In the eyes of the law, spousal relationships are essentially financial partnerships. Accordingly, when a relationship ends through divorce or separation one party may be required to assist the other through financial support – legally referred to as spousal support. Judges on a case-by-case basis determine whether spousal support is appropriate, the amount and length of time that it should be paid.
Who can claim spousal support
In order to claim spousal support you must fall within the legal definition of a “spouse.” There are two statutes that define “spouse”: the Divorce Act and the Family Law Act (FLA). When claiming for support you must do so under one of these statutes.
The Divorce Act is a federal statute, which can be applied any in province. Under this statute, either of two persons who are married to each other can claim for spousal support (s. 2). If a divorce has already been granted, support claims can only be brought under the Divorce Act and not the FLA.
The FLA is a provincial statue, which governs family issues within Ontario. Under s. 1 of the FLA “spouse” includes:
- Either of two persons who are married to each other or have entered into a marriage that is voidable or void in good faith;
- Either of two persons who are not married and have cohabited continuously for a period of at least three years in a conjugal relationship; and
- Either of two persons who are not married but who are in a relationship of some permanence if they are the natural or adoptive parents of a child.
If spousal support has been decided under the FLA and the parties then decide to get a divorce, the spousal support order remains in force until the Divorce Act puts a new order in place. In the event the parties have an order from the FLA and choose not to pursue a claim for spousal support under the Divorce Act, there will be no changes made to the support order under the FLA.
Factors considered in determining spousal support
- Contractual: where the court will consider agreements between the parties to create or limit mutual support obligations
- Compensatory: where the court will compensate a spouse who suffered economic disadvantage due to the marriage or where a spouse has contributed to the economic advantage of the other spouse
- Needs based: where the court will consider the needs, means, and other circumstances of the spouse in order to determine if they are able to support themselves without the assistance of the other party.
The Role of Conduct in determining spousal support payments
Misconduct is not a consideration in spousal support orders under the Divorce Act (s. 15.2(5)). However, under subsection 33(10) of the FLA the court may consider misconduct in rare cases. For instance, whether a spouse has been unfaithful will not be taken into account under the Divorce Act, but it can be a consideration in making a spousal support order under the FLA. The misconduct must have obviously and grossly attributed to the breakdown of the marriage.
Moreover, entering a new relationship does not disentitle you to spousal support. However, it is a factor in assessing need and will mitigate the amount of spousal support based on the contribution of the new partner.
Factors considered in assessing the amount and duration of spousal support
Neither statute specifies directions as to the quantum of spousal support. The process requires that both parties exchange financial information and prepare budgets showing spending patterns during the relationship and current need. The standard of living during the marriage is the main factor in assessing the appropriate level of support. However, the payor’s income will also be considered and may limit the ability to replicate the pre-separation standard of living. The court will look at the payor’s income throughout the relationship, their present employment, as well as potential earnings. In other words, if the payor ceases to be employed shortly before or after separation, their obligation to pay spousal support does not cease.
Other examples of factors that may be considered by the court are: mental and physical health, amount of child support, need for education/training to become self sufficient, duration of marriage, domestic contracts and loss of career opportunities due to responsibilities to the household during the marriage.
Unlike child support, there are no mandatory guidelines in assessing spousal support. Since 2008, Ontario courts have used the advisory Spousal Support Guidelines as basis for determining how much spousal support should be paid and for how long. Although they are not mandatory, lawyers and judges regularly use them. Essentially, information in the particular case is factored into a very complex formula to calculate a low, middle and high range of support amounts to be considered. It is important to note, the courts maintain discretion in assessing spousal support on case-by-case basis and as such there is no guarantees as to how much will be awarded.
Where there is a material change of circumstances after an order has been made, either spouse may apply for re-assessment of amount and duration. For instance, in the event the judge states that child support has been used to limit spousal support, it is possible to apply to the court to have spousal support increased once child support is no longer necessary.
Final Spousal Support Orders
The court will give a final support order that may be indefinite, time limited or subject to review. An indefinite order means spousal support will only be varied if there is a material change in circumstances. For instance, if the recipient spouse becomes financially independent the payor may be able to apply to reduce or eliminate spousal support. Time limited orders are often provided in short-term marriages where there is evidence that the recipient spouse will find employment in a specific time frame or where they are not making reasonable efforts to find employment. Finally, where there is uncertainty at the initial decision, the court may order that a review of the spousal support order take place after a fixed period. Review orders are available under the Divorce Act, however, it is discretionary under the FLA.
Temporary Spousal Support orders (interim spousal support)
Where a spouse requires financial support immediately it may be possible to attain temporary relief pending a final order. This can be achieved by either having both parties agree to an arrangement or by bringing a motion and requesting an order from the court. For interim spousal support. The purpose for interim spousal support is to permit the dependent spouse to live in reasonable comfort in accordance with the parties’ means, pending a final decision on the issue.
Lump-sum spousal support
A lump-sum payment is a one time payment where no further spousal support may be provided thereafter. A party can request a lump-sum payment subject to the availability of sufficient resources. This would be most appropriate where the parties want a clean break; where the payor spouse is at high risk of default, or; after a short-term marriage where the award is minimal. For tax purposes, it should be noted that a lump-sum payment is not taxable in the recipient’s hands or tax deductible to the payor.
A. Princewill Law Firm can assist you with your spousal support issues. Contact us for a consultation to discuss how we can help you.
Property Claims and Equalization of Family Property
Upon separation or divorce, couples have to deal with the often complex issue of dividing their property. It’s worth noting that unlike support, property division is an area in which common-law partners without cohabitation agreements often run into difficulties.
Common-law partners do not enjoy the same privileges that outright married couples do. It might be easier to say that common-law partners, although often honoured legally, do not have the same extent of privileges as married couples in the eyes of the law. For example, there is a significant difference is in the treatment of the home in which the couple cohabited. For married couples matrimonial homes are treated specially in relation to other family property.
Also, common-law spouses are not automatically entitled to equalization of net family property, there are other common-law rules however that can be used to ensure that common law spouses get a reasonable share of the family property upon separating from a partner who has title to the property
Married couples are entitled to more rights and privileges in regards to property claims and this includes the matrimonial home. Both parties have equal rights to reside in the home. Also, exclusive possession of the home may be granted to either partner regardless of the name on the ownership documents, or if it is jointly owned, regardless of the perception that one person is entitled to the property if they earn more or brought more assets into the marriage or accumulated more at the end of the relationship. The law sees the marriage as an equal partnership between the two partners.
Section 24(3)(4) of the Ontario Family Act which determines whether the court will make an order for exclusive possession states that the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
A divorce is a stressful event in the lives of family members. It may be the best choice but nevertheless it can have a negative impact on the financial, social, psychological, and physical well-being of the couple divorcing and their children. The divorce rate in Canada is approximately 42%. While this number has decreased, it is predicted to increase. Nobody plans to get divorced when they get married and that is why many couples are entering into common-law/cohabitating relationships to avoid all the worry about marriage and divorce.
The fact of the matter is that it is common and it is important to know your rights and responsibilities when getting married, divorced or even deciding to cohabit with your partner.
It is important to be prepared for such events in your life, and one way to get started is to have a marriage contract, separation agreement or cohabitation agreement, depending on your circumstances.
Having an agreement in place before such an event arises will save you time, money and unnecessary stress that is often involved during the process.
Marriage Contract | Prenuptial Agreement
Commonly referred to as a ‘prenup,’ a marriage contract, under section 52 Family Law Act, provides an agreement outlining the terms of a marriage. It will address how you and your spouse will divide your finances and assets. Everyone can benefit from a marriage contract, even if you only have a small amount of assets. This agreement will protect your separate property, support your estate plans, define what property is considered marital or not, save money in reducing conflicts, outline special agreements and establish any procedures/protocols you may want to instill for deciding on future matters between you and your partner.
The valuable characteristic about a marriage contract is that the couple have the autonomy to decide everything. If a marriage contract is non-existent, divorce becomes a nightmare and each spouse is essentially left unprotected and vulnerable. By outlining rights and responsibilities, it becomes easier to divide everything and adhere to any special arrangements such as support, property, education and training of children without having a court decide for you. It is the dreaded conversation that no one wants to have before marriage; however, the consequences of this may lead to difficult months and sometimes even years settling everything.
One of the most common mistakes a couple makes regarding marriage contracts is not knowing that they can still enter into an agreement after they are married. Should a couple choose not to address a marriage contract before marriage, they are able to enter into one after marriage as long as they are not doing so with the intention to get divorced in the near future.
Many couples in Canada choose to live together without getting married. Approximately 14% of couples living together are cohabitating in Canada. However, this number does not accurately reflect the real rate of couple cohabitating together, which in fact is much higher, this is because many couples just choose to live together and when their relationship ends, that’s it.
The Canada Revenue Agency considers you to be in a common-law relationship when you have cohabited for 12 months, however, common-law relationships are defined differently all around Canada. It mainly depends on the circumstances of the relationship to consider yourselves in an unmarried relationship or as a common-law marriage. Regardless of the situation, it is important to protect yourself, especially when you choose to own property with your partner.
A cohabitation agreement typically lays out terms for division of assets and spousal support when a common-law relationship comes to an end. This is similar to a marriage contract as discussed above. It outlines each spouse’s rights and responsibilities. It is imperative to have an agreement in place when cohabitating to protect your rights. With a written agreement, it can be enforceable should your relationship end.
Should you get married to your partner, your cohabitation agreement automatically becomes a marriage contract without any further action required.
In Canada, a couple must be separated for at least one year before they can file for a divorce. However, a couple can remain separated and never file for a divorce. The main reason individuals file for divorce is to enable one spouse to remarry in the future. Separation can be misunderstood by many couples because they are under the impression that a separation is simply living in two separate addresses. However, a valid separation in Canada is to not only be living in separate addresses but also be living and leading separate lives.
A separation agreement is a legally binding agreement that a couple enters into at the time of their separation. This contract will outline each spouse’s rights on different matters such as property, child custody and access, any pending debts, child and/or spousal support and any specific agreements a couple would like to address. Legally, a separation agreement is not necessary between a couples; however, it is always better to have a written agreement because verbal agreements are frequently undermined and denied. In a court, a written agreement is enforceable should one spouse refuse to adhere to the terms of it.
How we can help
When drafting your own marriage, separation or cohabitation contract, it is strongly advised to seek legal representation. A lawyer has clear knowledge of the rights and the laws that apply to you and can offer their expertise which can benefit your particular situation. No relationship is the same, therefore, a general internet search will not provide you with the best results for drafting contract from home. Your contract can be held to be invalid or contain certain matters that cannot be enforced by the courts.
At A. Princewill Law Firm we are committed to drafting strong contracts and agreements. We take the time to sit down and get to know your situation. This enables us to serve and represent you the best we can. We have many years of experience involving divorce, marriage and separation that aid us to draft a contract that will not only be enforceable, but also one that is fair and satisfies you. Please fill out our contact form to get started.
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