Family Law

To obtain a divorce, you and your spouse must have been living separate and apart for one full year, have not resumed co-habitation for more than 90 days during that year-long period, and there must be no chance of reconciliation. Other grounds for divorce are adultery and cruelty.

No. Subject to certain time limitation periods, these types of collary relief can be obtained regardless of whether you are still married or not.

Most people generally assume that if a parent has custody of a child, the child resides with that parent. This is not necessarily the case. A parent can still have “custody” of his/her child without the child living with him/her. Custody relates to decision-making abilities regarding major issues such as health, education and religion.

Yes.

The most important consideration is – what is in the best interests of the child? A court will look at a number of factors in answering this question, such as the the love, affection and emotional ties between the child and the person seeking custody/access, the child’s views and preferences, the length of time the child has lived in a stable home environment and the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child.

Yes. Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. Disabled adult children may also be entitled to child support.

Child support depends on where the parents live, and what custody/access arrangement the parents have with regard to the child for which support is payable. The Government of Canada provides an online calculator for determining child support payable.

Spousal support is meant to provide support for a spouse after the breakdown of the marriage.

No. Spousal support is available under both the Divorce Act (which governs married spouses) and the Family Law Act (which governs both married and non-married spouses). Under the Family Law Act, a spouse includes either of two persons who is/was married, as well as either of two persons who are not married to each other and have cohabited (a) continuously for a period of not less than three years, or (b) in a relationship of some permanence, if they are the natural or adoptive parents of a child. Until recently, the ability of common-law spouses to make a claim for either damages or an interest in property from their former partner was limited to cases in which one could prove a ‘trust’ interest in the other’s property. Recent case law from the Supreme Court of Canada, however, has significantly expanded the ability of common-law spouses to make a claim similar to an equalization claim. How this case will be interpreted by Ontario courts and how it will play out in actual cases remains to be seen.

Determining whether spousal support is payable is a complex legal question which is determined based on the case’s particular facts and the parties’ circumstances.

Under the Family Law Act, a spousal support order is supposed to recognize the spouses contribution to the relationship and the economic consequences of the relationship for the spouse; share the economic burden of child support equitably; make fair provision to assist the spouse to become able to contribute to his or her own support; and relieve financial hardship.

The court looks at a number of factors in determining quantum (amount) and duration of spousal support, such as:

1. (a) the dependants and respondents current assets and means;
2. (b) the assets and means that the dependant and respondent are likely to have in the future;
3. (c) the dependants capacity to contribute to his or her own support;
4. (d) the respondent’s capacity to provide support;
5. (e) the dependants and respondents age and physical and mental health;
6. (f) the dependants needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;
7. (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;
8. (h) any legal obligation of the respondent or dependant to provide support for another person;
9. (i) the desirability of the dependant or respondent remaining at home to care for a child;
10. (j) a contribution by the dependant to the realization of the respondents career potential;
11. (k) if the dependant is a spouse:
    1. (i) the length of time the dependant and respondent cohabited,
    2. (ii) the effect on the spouses earning capacity of the responsibilities assumed during cohabitation,
    3. (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,
    4. (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,
    5. (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the family’s support,
    6. (vi) the effect on the spouse’s earnings and career development of the responsibility of caring for a child; and
12. (l) any other legal right of the dependant to support, other than out of public money.

The issue of spousal support can also be addressed with reference to the Spousal Support Advisory Guidelines. These guidelines are not law (in that courts are not bound to follow them) but they serve as a useful starting point in determining whether a spousal support obligation exists, and if so, for what duration and in what amount.

Mediation is an effective way of resolving disputes without the need to go to court.  It involves an independent third party – a mediator – who helps both sides come to an agreement.  A family law mediator will help the parties by acting as a facilitator to resolve the family law issues.  Mediation may be conducted with or without lawyers.

Collaborative Practice, including Collaborative Law and interdisciplinary Collaborative Divorce, is a way for you to resolve disputes respectfully — without going to court — while working with trained professionals who are important to all areas of your life. The term incorporates all of the models developed since Minnesota lawyer Stu Webb created Collaborative Law ideas in the 1980s.

The heart of Collaborative Practice or Collaborative Divorce (also called “no-court divorce,” “divorce with dignity,” “peaceful divorce”) is to offer you and your spouse or partner the support, protection, and guidance of your own lawyers without going to court. Additionally, Collaborative Practice allows you the benefit of child and financial specialists, family professionals, and other experts all working together on your team.

Arbitration is a dispute resolution process in which the parties hire a neutral third party, a family law arbitrator, to make a decision resolving their dispute that they agree they will be bound by.  Family Law Arbitrators may be asked to resolve disputes involving the support of a spouse or children or both, custody of or access to children and property division.

Family arbitration awards are only enforceable in court when the arbitrations are conducted exclusively according to the law of Ontario or another Canadian province or territory.

All arbitration decisions involving children must be made in the best interests of any child or children involved.