Answering Common Family Law Questions
It is best to move out of the home where both partners and possible children are living to avoid arguing and fighting.
It may be easier in the short-term, but simply moving out is a bad strategy in a divorce as it may affect your claim for custody and/or access. It may appear that you “abandoned” your family responsibilities and left the children with the other spouse as the primary parent.
If the parents of one of the partners gives $100,000 which is used to pay off the mortgage on the matrimonial home. Now that they have separated, that money from the parents given can be requested to be returned.
Money from a gift or inheritance received by one spouse that goes to paying for the family home remains as part of the value of the house. This cannot be excluded from the value of the matrimonial home. If a gift or inheritance goes to a specific spouse and is kept separate, it can probably remain with the recipient if careful records are kept before and during marriage. If the money was received after marriage, proof must be provided to show that the money was given and also was kept separate from the spouse’s assets while married.
In a common-law relationship if a partner brought children to the relationship, where one is not the biological parent,will the partner who is not the parent have to pay child support if the relationship ends
Courts are concerned with the best interest of the child. So, if the partner has been acting as a mother or father (parent) to someone else’s children, it may be required to pay child support.
If a former spouse is not paying the child support they can be denied access to the children until payments are received
Child support and access are separate issues. The court takes a dim view of withholding access to children. Courts are concerned with the best interests of the children. This means two things:
1.Courts are in favor of ensuring that children spend time with both of their parents unless there are strong reasons against doing so.
2.Court will not deprive a child of visits with a parent even if that parent is not paying child support.
The law treats a traditional marriage and a common-law marriage the same when a relationship ends.
In some ways it does, but in some ways it doesn’t. The issues of custody, access and child support are usually resolved the same way regardless of whether the spouses are actually married. The issue of spousal support will also be treated the same provided that the spouses have lived together for at least three years or if they have lived together for less than three years and have had/adopted a child together.
The process for dividing property in a common-law marriage is very different from the rules that apply in a traditional marriage. For example, there is no “equalization payment” to divide a couple’s assets at the end of a common-law relationship.
No. Presence in the home does not dictate how assets are divided in divorce. Interests in the home comes from who is on title or from status as a party to a divorce case in which it is an asset.
If proof is presented that the spouse cheated they should pay more in child support because of their infidelity.
As painful as being cheated on can be, family court will not increase support payment to punish bad behavior. A spouse being unfaithful is also not a factor used to determine the amount of spousal support payable.
This is not the case. As part of the divorce process the courts are mandated by family legislation to make custody and access awards that are in keeping with numerous factors. Primary among them is the “best interests” of the child. There is also a misconception that fathers can never get joint custody; this is also untrue.
It is best to take this process one day at a time. Make sure you find time for yourself. Take a bath, go for a walk, read a book or get a coffee. Making time for yourself even for a few minutes can always help.
An application can be brought to vary an existing order, if there is an order in place, so that the payments are adjusted to match the table amounts that best reflect your current economic situation.
Yes they can. S.6 of the Family Responsibility and Support Arrears Enforcement Act, 1996, S.O. 1996, c. 31 gives the Family Responsibility Office (FRO) the authority to use any type of enforcement mechanism necessary to enforce support payments. Also, ss. 33-39 regulate the suspension of driver’s license and s. 34 requires that the FRO give notice before suspending a driver’s license.
After notice is given the paying parent has 30 days to either:
- pay the arrears,
- make an arrangement for payment, or
- obtain an order to refrain under s. 35(1).
Therefore, if you satisfy the terms of s. 35(1), you may be able to stop the FRO from suspending your license.
It is required to make payments for child support until the child reaches the age of majority, i.e. 18 years of age.
Depending on the Act under which the claim pertains, bringing the matter to court may extend the payments because the child (who is now over the age of majority) is either enrolled in an education program full-time, has an illness or disability or due to some “other cause” requires continuous support.
Yes, but the amount may be reduced/changed. Parents have a financial obligation to support their children until they are eighteen, if they are over the age of eighteen and require support for reasons of illness/disability, enrolment in a full-time education program, etc.
Children also have a right to benefit from their parent’s financial means. This right cannot be discarded simply because a former spouse/partner has moved in with a new partner. Obligation towards your child(ren) is unaffected by your former spouse/partner’s new developments in his or her life.
You may have to pay support for children that are not yours biologically if there was demonstrated intention to treat the child(ren) as their own for whom they are “standing in the place of a parent.”
The Child Support Guidelines calculate the base amount of support by taking the payor parent’s annual income and the number of children for whom support is being paid. Using those two factors it is determined what percentage of the payor’s income will be ordered as child support.
That base amount is referred to as the “Table Amount”. This amount is determined as per the Child Support Guidelines by the paying parent’s gross annual income and the number of children.
What may be added on top are special or extraordinary expenses, often called “section 7 expenses”.They are set out in section 7 of the Child Support Guidelines. These expenses include things like daycare, private tutoring, or health care and dental expenses. These section 7 expenses are divided between the parents, with each parent paying in proportion to his or her income.
Supervised access will normally be ordered or agreed on if the access parent has a history of violence, abuse, drug or alcohol problem, if he or she has threatened to abduct the child, etc. As a result the court or custodial parent may find it is necessary to have someone present when the child and access parent are together.
The location of the supervised access visits may vary. They can take place at the access parent’s home or even in a supervised access center.
Probably not because judges are aware of the fact that testifying in court can be a very scary experience for a child. It is recognized that children forced to testify against a parent is not the ideal situation especially during a bitter custody dispute.
If the judge needs the testimony or evidence of the child’s views/preferences in order to make a determination, then the following options are available. Such as the appointment of the Office of the Children’s Lawyer.
If an ex spouse is not paying child support and that support award is part of a court order or a separation agreement filed with the courts, then your support order will be registered with the Family Responsibility Office (FRO). That office is in place to enforce support orders. Therefore, it is the responsibility of FRO to collect and enforce support on your behalf.
Yes it is. A facetime or telephone schedule can be incorporated into your separation agreement or Court Order.
To avoid conflict, you can use Google Calendar. Google Calendar will allow you to update and have the other person(s) you share the calendar with to receive those changes immediately. 2Houses is another option you can use to organize yourselves. 2Houses makes it easy to organize a custody schedule, manage kids’ expenses, upload photos and notes, and exchange all necessary information. Such information as medical notes and school details. It also comes with a messaging service and mediator access via the web and mobile devices.
No this is not true. Both parents have equal rights to your child(ren) and to information pertaining to the child.
What are some positive steps/behaviors that are favorable when dealing with parenting time/decision making?
There are a few behaviors that can be favorable. Here are a few:
- Maintain contact with your children to show your commitment.
- Limit the children’s exposure to conflict between parents.
- Do not alienate or speak negatively about the other parent.
What should happen when verbal communication with ex spouses does not work? Such as in person or over the phone.
It is always best to communicate in writing. There are a lot of apps that separated parents can use. Here are some options
- Our Family Wizard
- Talking parents
In a family law matter, the court may ask the Office of the Children’s Lawyer (OCL) to help when parties can’t agree on the following:
- How much (parenting) time the child(ren) will spend with each?
- Who else will have contact with the child(ren)? For example a grandparent.
- Who has the authority to make decisions for a child? This is called decision-making responsibility.
The Office of the child(ren)’s Lawyer may provide:
- A lawyer to represent the child (generally for older children and youth)
- A clinician, usually a social worker, to meet with the family and write a report for the court. This is generally for children under ten.
The new changes to the Divorce Act attempt to explain specific factors that should and should not be considered by the court on a mobility (relocation) application. The main components of the new framework are as follows:
1.It requires a parent wishing to relocate with the children to provide 60 days’ notice in writing to the other parent of their desire/intention to relocate. The other parent then has 30 days to object to such relocation.
The Court reviewing the issue of relocation will have to consider the following:
1.Reasons for the relocation;
2.Impact of the relocation;
3.Amount of time spent with the child by each person who has parenting time;
4.Whether notice was provided;
5.Orders or agreements specifying geographic area;
6.Reasonableness of the proposal; and
7.Compliance with family law obligations.
Section 7 expenses are costs that are not covered as part of the basic monthly child support amount and are above what is normally required for a child’s everyday expenses. The Child Support Guidelines set out a full list of expenses that are considered “Special or Ordinary Expenses”. Speak to your lawyer for further information on what can be covered.
One common myth is that if an ex-spouse cheated this will automatically result in the other individual being entitled to sole custody of the child(ren). This is not true.
Below are just a few actions to consider. For more information, schedule a free initial consultation and we can provide you with more information pertaining to your situation.
- Avoid geo-tags, location trackers or check-ins on any of your social media accounts.
- Do not post anything about the litigation and the dispute regarding your family law matter on social media.
- Do not comment or post anything regarding your spouse.
- Do not vacate the matrimonial home before seeking legal advice.
- If you are self-employed, do not sign a credit application claiming income that is inconsistent with your income tax return.
- Do not purchase any luxuries such as a luxury vehicle even if it is used or of an older model.
- Do not share any form of correspondence that you receive from your legal team with third parties as this may in effect waive solicitor-client privilege.
- Do not sell any joint properties before seeking legal advice.
When determining if spousal support should be paid, the first hurdle is to determine whether the spouse claiming support is legally entitled to spousal support. There are many factors that are considered. These include, but not limited to:
- the length of the relationship;
- the roles or duties performed by each spouse during cohabitation;
- the education of the parties;
- the parties’ standard of living during the relationship;
- the age of the parties at separation;
- the medical or health condition of the party claiming support;
- the needs and expenses of the parties; and
- the parties’ respective incomes.
Married couples are entitled to a legislated property division regime, known as “Equalization”, which is set out in the Family Law Act. The equalization is when each spouse calculates their respective “net family property” by totalling the value of their debts, assets and liabilities for the duration of the marriage. This number is then subtracted from the total of their debts, assets and liabilities they acquired up to the date of separation. This process results in one spouse (with the higher net family property) owing the other spouse an equalization payment.
Common law spouses do not have an automatic right to equalization of net family property under the Family Law Act and would be determined case by case.
You and your spouse/common-law partner do not need to go to court to settle matters between each other. You can always come to an agreement and resolve your matters out of court. The Separation Agreement will finalize issues of support, property, and parenting. A Separation Agreement is a domestic contact and is legally binding.
In order to be enforceable, all domestic contracts must be in writing, signed by both parties and witnessed.
No, you do not have to appear before a judge. The term divorce simply refers to the “paper process” of exchanging your marriage certificate for a Divorce Order.
Family mediation is a voluntary process in which a mediator (a neutral party) assists the parties in resolving their disputes related to their separation. The mediator does not decide the case. Instead, the mediator works with the parties to reach an agreement which both parties are agreeable to.
How do you know if the Collaborative practice is the best option for one’s situation if the Court process is trying to be avoided?
When considering whether collaborative family law is a potential option for yourself, consider the following questions:
- Can I respect my spouse even when we disagree?
- Are my children’s needs my top priority?
- Are both mine and my spouse’s needs equal in my mind?
- Can I listen to my spouse objectively?
- Can I work creatively and cooperatively with my spouse?
Dispute Resolution Officers (DROs) are lawyers appointed to support the family law court process by aiding parties in attempts to resolve their issues prior to their case proceeding before a judge.
Standard disclosure is the requirement to provide the last 3 years Notice of Assessment, Income tax return, pay stub and sworn Financial Statement.
In Ontario, spousal support is not an automatic right. Your spouse may be entitled to support if they can demonstrate the following:
- The financial needs of both spouses
- The length of the marriage
- The roles of each spouse during their marriage
- The effect of those roles and the breakdown of the marriage on both spouses current financial positions
- The care of the children
- The goal of encouraging a spouse who receives support to be self-sufficient in a reasonable period of time
- Any orders or arrangements already made about spousal support
Section 7 expenses are separate and apart from regular child support, and are shared in proportion to each party’s income. Child care, uninsured medical and dental expenses and other health related expenses, post-secondary education, private schools and extracurricular activities are all examples of such expenses.
In Ontario, you are considered to be common law if you and your spouse have cohabited for 3 years or if you and your partner live in a relationship of permanence and have a child together.
Spousal support: If your relationship meets the definition of “Common Law”, you may be entitled to spousal support or be obligated to pay spousal support to your former partner.
Child Support: Child support is the right to the child and whether the parties have been married or are in common law relationship, every parent has a legal duty to support their children.