and concerns, and provide a general overview of the issues.
It is not intended to provide specific legal advice.
Separation and the Matrimonial Home:
Can I lock my spouse out of the house?
Not without a court order or separation agreement granting you
"exclusive possession" of the matrimonial home, if you are legally
married. It doesn't matter if the home is only in the name of one of
the spouses. However, this is not the case with couples who were
not legally married, but living common-law. Emergency, temporary
court orders can be obtained in extreme circumstances.
If I leave the family home, do I give up all my rights?
No. However, it is important to seek legal advice as soon as
possible, in order to protect your rights and avoid any confusion
about your intentions. You also cannot claims certain rights, such
as the right to equalization of family property, after a certain number
of years following the separation or divorce.
If you've left children behind, it is especially important to act quickly,
to ensure that your relationship with them remains intact. If you are
their primary caregiver, you should make all efforts to have the
children come with you when you leave the home.
Separation Agreements:
Do I need any documents in order to have a "legal separation"?
Under Ontario law, you are separated if you are living separate and
apart, with no reasonable chance of getting back together. However,
it is always a good idea to get a separation agreement, to ensure
that ALL of the legal issues from the marriage breakdown have
been addressed.
Do my spouse and I both need to have lawyers to do a separation
agreement?
It is highly recommended that you do. The law in this area can be
quite complex, and "do-it-yourself" agreements which aren't totally
clear and in keeping with the current family law can ultimately cost
you thousands of dollars if they are challenged.
In addition, both spouses should have independent legal advice.
Otherwise, there is a possibility that a court may decide in the future
that the separation agreement was not fairly negotiated, and it may
not be valid. Doing it right the first time is the smart, cost-effective
choice.
Do I really need to provide information about all of my finances?
Each spouse should provide at least information about their
income, their total assets and debts upon separation, and their
assets and debts on the date of the marriage.
This information is needed for the following reasons:
1. You need financial information in order to make informed
decisions about the terms of any Agreement.
2. Each lawyer will need the financial information in order to
properly advise you.
3. There is a risk that the Separation Agreement may not hold up in
court if proper financial disclosure was not made.
Prenuptial Agreements, Cohabitation Agreements
and Marriage Contracts:
I'm planning on getting married. Do I need a marriage contract?
Anyone may choose to enter into a marriage contract. However, for
some people, it is crucial. You should have one if:
- it is a second marriage
- you have children from a prior relationship
- you own a home
- you own a business
- you are part of a partnership, or family business
I want to avoid future fights about the children. Can I do that with
a marriage contract or cohabitation agreement?
You can agree to certain aspects of decision making, such as who
will make decisions regarding the children's education or moral
training. This can be important for someone who feels strongly
about a certain type of private school, or to avoid disagreements
about the religious upbrining of the children.
However, you cannot use these Agreements to determine custody
and access rights in advance of a separation.
You may discuss child support obligations, but a court in the future
may disregard any provision that is unreasonable, having regard to
the government's child support guidelines.
We know what we want to do, and don't feel that we need to start
disclosing all of our personal financial information. Can we just
have one lawyer prepare a simple Agreement?
No. The purpose of entering into one of these Agreements is to
have something that will be legally binding in the future. A court can
disregard an Agreement if financial disclosure was not made, or if
significant information was omitted. It can also disregard an
Agreement if one of the spouses did not understand its nature and
consequences, so independent legal advice for each party is a must.
Help! I'm getting married next weekend, and I need independent
legal advice on a Marriage Contract right now!
Proper independent legal advice and negotiation of an Agreement
should not be rushed. In addition, if the issue of signing an
Agreement comes up so close to the wedding date, there is a good
chance that you will be under intense pressure to sign it. Under
these conditions, it would be very difficult to provide you with true
independent legal advice. A better option may be to proceed with
the wedding, and complete the Marriage Contract after that.
Children:
What will happen to the children upon separation?
Ideally, the parents should agree upon a schedule for the children to
spend time with each parent, even if the schedule is temporary.
If there are pressing safety concerns, an urgent court hearing may
be necessary. Schools, daycares, etc. usually require a court order
or separation agreement limiting access in order to refuse to allow
a child to be picked up by the other parent.
What if we can't agree about the children?
There are a few ways to deal with this, including:
1. Negotiation: Sometimes, with the help of skilled lawyers, a
solution can be found.
2. Mediation: The parents may meet with a neutral third party who
helps them come to an agreement.
3. Collaborative law process (with or without parenting coach): The
parents are represented by specially-trained collaborative lawyers,
and an agreement is signed which would require each party to get a
new lawyer if court proceedings are started. The parties may then
find it easier to negotiate a parenting plan, as they aren't in a bitter
court battle. For difficult issues, they may use expert help, such as a
parenting coach. The coach works with the parents, and the
parents sign an agreement that the coach would not be called as a
witness in any future court case.
4. Court proceedings (with or without assessment): In some highly
contentious cases, or in cases where safety is a real concern, court
proceedings may be necessary. Unlike the other methods, the
parents don't get to choose the outcome, unless they agree to settle
the case.
The court is required to base its decision on the best interests of the
children, and criteria for determining the best interests are set out in
the laws. The court may not consider parental conduct that doesn't
affect parenting ability. For example, a court should not consider
factors such as: blame for the marriage breakdown, adultery,
sexuality, religious differences (unless this impacts the child),
previous abortions, payment of child support, etc.
Judges are also human, and each has his or her own individual
style and opinions. For that reason, it is difficult for anyone to predict
the outcome of a case with 100% accuracy.
Children are very rarely called as witnesses, or asked to speak to
the judge. Courts recognize that this would be highly traumatic for
them. Instead, courts rely on sworn written statements (called
affidavits) from the parents and others.
In order to find out the views and needs of the children, courts often
turn to the Office of the Children's Lawyer , which can provide a
lawyer for a child, or an investigation report from social workers.
In other cases, an expert may be hired by one or both parents to
provide an assessment. This is useful for complicated cases.
What do the terms "custody", "access" and "parenting plan"
mean?
"Custody" refers to decision-making power. While the parent(s) with
custody will generally have the child for much of the time, the main
difference between a joint custody arrangement, and a sole custody
arrangement where the other parent has frequent access, would be
the way in which major decisions (including schooling, medical
care, religion, etc.) are made.
"Access" refers to the time that a parent without custody spends with
the child.
Joint custody is increasingly common. However, it requires
cooperation between the parents. In cases where parents are
simply incapable of communicating without fighting, the courts may
choose to grant sole custody to one parent, with access to the other.
Many people find that terms "custody" and "access" seem harsh and
rigid, and can cause parents to fight over who has control over the
child. In practice, many parenting arrangements are simply based
on what is practical for everyone. The term "parenting plan" is used
to describe the parenting arrangements agreed upon by the parents.
Support
What is the difference between child and spousal support?
Child support payments are generally determined by the Child
Support Guidelines. These take into consideration the income of
the payor, certain types of additional child-related expenses (such
as child care and post-secondary tuition), and in some situations,
the income of the recipient.
Child support payments are not tax-deductable for the payor, nor
does the recipient pay any tax on them (unless the support order
was made before 1997).
Spousal support payments may be determined by a number of
factors, one of which is the new Spousal Support Advisory
Guidelines. They take into consideration the income of both parties.
Spousal support payments are tax-deductable by the payor, and the
recipient pays tax upon them.
Why is it necessary to use a lawyer and DivorceMATE software to
calculate support payments according to guidelines?
While simply looking up amounts on a guideline table may sound
simple, common mistakes can cost thousands of dollars.
Common issues include:
- determining what should be included as "income"
- determining at what point rules for joint custody should apply
- determining which child-related expenses should be shared
- determing the effect of taxes (eg. child care expenses are
largely tax-deductable, so only the after-tax expense is
shared)
The DivorceMATE software is used to calculate the amounts in
accordance with the various Guidelines, taking into account the tax
implications.
How is the property divided?
In Ontario, it isn't the property itself, but the value of the property
which is divided.
The value of each person's assets on the date of separation is
totalled. This includes any property out of the country, the value of
any pension plan, and anything else that may be of value. From the
amount, we deduct the amount of any debts, any money that was
inherited or clearly given as a gift to that person alone by a third
party, and the amount that the person had on the date of marriage
(excluding the matrimonial home). This amount is known as the net
family property. The net family property cannot be lower than zero.
If one spouse has a higher net family property than the other, they
may be required to make an equalization payment equal to 1/2 of
the difference.
While the general formula appears to be straightforward, there are
some tricky issues that can arise.
