Matters that affect your family are never easy. A marriage breakdown often results feeling of hurt and anger. When a married or common law couples separates, there are three general issues that need to be considered and settled: division of property, spousal/common law support and children’s issue.
Choosing the right family law firm to represent you is one of the most important decisions you will take. We are devoted to serving our clients with understanding and expertise.
We believe that one of the most valuable things we can provide to a client is the peace of mind that comes from understanding the law and having a plan of action. We work with our clients to develop tailor-made solutions to fit their unique needs.
Our goal is to protect and advance our clients’ interests and we strive to achieve the most reasonable, favourable outcome in every case whether it is protecting your interests going into a new relationship or protecting your interests when your relationship ends. This can often be achieved by negotiated settlements which are cost effective for our clients but in some circumstances when parties are unable to resolve their differences we are prepared to go to court and fight for our client’s rights.
We provide representation in the following matters:
- Contested and uncontested divorce
- Spousal support
- Child support
- Custody & access
- Matrimonial property division
- Marriage (pre-nuptial) agreements
- Co-habitation agreements
- Separation agreement
GETTING DIVORCED IN ONTARIO
To get divorced in Ontario, you must apply to the Superior Court of Justice. Some couples choose to simply go their separate ways without seeking a Court order, and this is fine as long as they do not seek to get married again to another person.
There is only one reason why a court will grant a party a divorce, and that is because the party’s marriage has broken down. The Divorce Act sets out only three grounds upon which a court can conclude that someone’s marriage has broken down:
- The spouses have been living separate and apart for at least one year;
- One of the spouses committed adultery; or
- One of the spouses treated the other spouse with physical or mental cruelty sufficient to render the marriage intolerable.
The only difference between the courts deciding to grant a divorce on the basis of one ground as opposed to another is time. A divorce on the basis of adultery or cruelty can be granted immediately whereas a divorce based upon a one year separation necessarily takes a year.
What is an uncontested divorce?
An uncontested divorce is type of divorce where there are no matters in dispute between the married couple. They have recognized that they are not compatible and no longer wish to remain married. When people chose to work together to divorce, it is generally a functional formality of ending their legal marriage. An uncontested divorce is a more affordable divorce option. The only way of divorcing that can be considered more amicable is a joint divorce.
What is a contested divorce?
Contested Divorce simply means that you are not able to resolve any or all of the following main issues which need to be resolved before being able to obtain a divorce. These are:
- Property division;
- Debt division;
- Spousal support;
- Child support; and
- Child custody & access.
Child Support is the right of the child. It’s not your right. It’s not your spouse’s right. Child support laws are based on the idea that a child should benefit from both parents’ ability to support them in the same way they would if the parents lived together.
The Child Support Guidelines determine how much child support is payable. These guidelines can be found at: http://laws-lois.justice.gc.ca/eng/regulations/SOR-97-175/. Generally child support stops when the child turns eighteen years of age and the child is no longer attending school on a full time basis. If the child is attending college or University on a full time basis, then generally speaking the obligation to pay child support continues.
You need to pay child support if your child resides with the other parent more than 60 percent of the time. Or if you share the child’s care but your income is higher than the other parent. The amount of monthly child support is calculated based on your gross income and may be calculated by clicking here http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp
Additionally, your child may have special expenses that you may be responsible for. As a stepparent of a child, you also may be ordered to pay child support upon separation from your spouse. Monthly child support pays for daily costs of food, shelter and other basics. Other things such as swimming classes, tutoring or daycare are special expenses.
Access refers to the time that the parent with the least amount of time with the child spends with the child. Access is the right of the child, and not the right of the parent. The law presumes that maximum contact is in the best interest of the child. The test the courts apply is the “best interest of the child”, and therefore access can be as generous or restricted as the facts require.
This is a complicated area of Family Law. The right to receive spousal support payments must be proven by the person seeking those payments. Some of the factors that will determine entitlement to support, as well as the duration of the support obligation, include:
- The length of the relationship
- The roles played by each spouse throughout the relationship
- The age of the spouses at the time of separation
- The ability of one spouse to support the other
- The ability of the recipient spouse to become self-sufficient
Property and Debt Division
After you separate, the law says that all family property and family debt must be divided equally between you and your spouse, unless you have an agreement that says you’ll divide them differently.
In family law, this is referred to as an “equalization” of “net family property” (NFP). Each partner’s NFP is calculated by subtracting his or her debts from his or her assets. Once the NFP is calculated for each spouse, the spouse with the lower NFP is entitled to one-half of the difference between the two amounts.
Family property is everything either you or your spouse own together or separately on the date you separate. It includes:
- the family home
- bank accounts
- insurance policies
- an interest in a business
It doesn’t matter whose name the property is in.
Property one of you owned before you got together isn’t included in family property. This is called excluded property. That means you don’t split the value of it equally if you separate or divorce. However, if the property increases in value while you live together, the increase is considered family property. You must divide the increased value.
Other types of excluded property include inheritance, gifts, injury settlements or awards and insurance payments for non-property-related damages. Remember though, that even if you own something that is considered excluded property, you must share equally any increase in its value that happened while you were together.
The Matrimonial Home
The matrimonial home is afforded special treatment under the Family Law Act (FLA). Part 2 of the FLA deals entirely with the matrimonial home: what it is, how it is treated in the equalization process, and who has a right to possess it.
Unlike other property, if you owned the matrimonial home on the date of marriage, you do not receive any credit for it when you separate. Also, it doesn’t matter who has their name on the papers for the house, both spouses have an equal right to remain in the matrimonial home.
The concept of a “matrimonial home” only applies to married spouses and not common law couples. Unless there is a court order or agreement that provides otherwise, both spouses have a right to equal possession of the matrimonial home and to live in the home. Neither spouse can sell, dispose of or encumber the matrimonial home without the consent of the other. This means that the owner spouse cannot do things like change the locks, require the non-owning spouse to move out, or sell the home without an agreement or court order.