INVOLVING THE COURT IN FAMILY LAW DISPUTES?

*The infomation provided below does not constitute legal advice and is only applicable to situations governed by the law of Ontario. You must contact a lawyer for advice relevant to your circumstances*

Should a spouse leave the matrimonial home?

1. Neither spouse should leave the matrimonial home without first obtaining legal advice.
   
   
2. Without the consent of the other parent or a Court Order, a spouse will not be permitted to leave the home with the children.
   
   
3. If  a spouse leaves the home without the children, he or she may be  prejudicing their right to obtain custody of the children. Also, it may  be difficult to re-gain access to the home later on to retrieve personal  belongings.
   
   
4. It is important to know that  unless there is a Court Order or an agreement that provides otherwise,  both spouses have a right, under the law of Ontario, to live in the  matrimonial home, even if one of them is not a registered owner of the  home.
   

How is spousal support determined?

1. Spousal  support may be awarded on a compensatory basis to address any economic  disadvantage created by the spousal relationship. For example, a  disadvantage is created when one spouse stays out of the workforce to  raise children; supports a spouse pursuing a professional degree; or  relocates to further a spouse’s career.
   
   
2. If one  spouse earns more money than the other spouse or if a spouse cannot  support himself or herself, or their standard of living after separation  will be significantly reduced compared to what it was during the  relationship, spousal support will likely be payable, unless a marriage  contract or cohabitation agreement provides otherwise.
   
   
3. The  longer the marriage or relationship, and the greater the difference  between your financial resources, the more likely it is that spousal  support will be payable.
   

Is there a way to determine how much spousal support is to be paid?

1. The  Spousal Support Advisory Guidelines, (although not mandatory), are  increasingly being used by the Courts to set the amount of spousal  support, and to establish an expected range for negotiation.
   
   
2. These  Guidelines suggest a range for spousal support based on the income  differential between spouses, the length of the marriage, the age of the  spouses at separation, and whether child support is being paid.

Will spousal support vary over time?

1. The  amount of child support paid is directly tied to your income and the  children’s residence. The amount of child support is adjusted yearly.
   
   
2. Both  payor and recipient will be expected to disclose their annual income  each year and the amount of child support will vary according to the  Child Support Guidelines. If the payor’s income decreases, child support  will normally decrease. If the payor’s income increases, child support  will increase as well.
   
   
3. Spousal support is more  variable, depending on the situation. Spousal support can also vary with  changes in each spouse’s income, but will often remain constant for a  period of time, subject to a Court’s review. In some cases, spousal  support may be indefinite, depending on the length of the marriage and  the roles adopted during the marriage. Support awarded in these cases  will not normally be changed without agreement of your spouse or a Court  Order, although the support amount is often indexed to the rate of the  consumer’s price index. Will spousal support vary over time?

Is support tax deductible?

1. Unless child support is being paid pursuant to a Court order or agreement dated 1996 or earlier, child support is not tax deductible by the payor, nor does the recipient include it as taxable income.
   
   
2. Periodic  spousal support paid pursuant to a written agreement is tax-deductible  by the payor and is included as taxable income by the recipient.
   

What  effect will a new relationship and a new family obligation have on  child support and spousal supportobligations to the payor’s first  family?

1. In  general, a new relationship will not be taken into account and child  and spousal support will not be varied as the result of a new  relationship or obligation.
   
   
2. Courts  will usually not reduce support obligations to a payor’s first family  because of the responsibilities and obligations the payor has undertaken  since separation.
   

Is there a difference between the rights of married spouses and the spouses who live common-law?

1. Not  when it comes to custody, child support and access to the children.  There is, however, a difference with regard to the division of property  and spousal support.
   
   
2. Common law spouses do not  have the same property rights as married spouses. Married spouses are  presumed to share the proceeds of all the assets accumulated over the  course of a marriage. In general, common law spouses do not share  property, unless there is joint ownership or one spouse has made a  substantial contribution in the form of either effort or money to an  asset owned by the other spouse, or the Court rules that the parties  have been engaged in a joint family venture, meaning the spouses worked  together towards a common goal, such as raising a family, building a  business, or running a farm together. In making this determination, the  Court will examine the level of economic integration between the  spouses, the intent of the parties and the priority the family took in  the parties’ decisions.
   
   
3. As for spousal support,  common law couples are entitled to spousal support only if they have  lived together for three years, or if they have a child together and the  relationship was of some permanence. Married spouses are presumed to be  entitled to spousal support if one spouse has the need for it.
   
   
4. Same sex couples, whether married or common law,have the same rights as opposite sex married or common law couples.​

Will  the fact that one spouse cheated and left the relationship for another  person affect the property settlement or entitle the innocent spouse to a  larger amount of spousal support?

1. Conduct is normally not relevant in the determination of the amount of spousal support or the division of property
   
   
2. The  fact that one spouse cheated and left their spouse for another person,  will not affect the rights to property settlement or spousal support.
   
   
3. The  Ontario Family Law Act requires each spouse to account for all of the  assets they accumulated over the course of the marriage.
   
   
4. In  general, a snapshot will be taken of each spouses’assets and  liabilities on the date of marriage and on the date of separation. The  net value of assets minus liabilitieson the date of separation will be  compared to that on thedate of marriage to determine a spouse’s net  familyproperty. The law then requires this amount to be equalized so  that both spouses leave the marriage with an equal value of assets they  have accumulated over the course of the marriage.
   
   
5. There  are certain exceptions to this process. Thematrimonial home, being the  home where the spousesreside at the date of separation, is factored into  theequation without a deduction for its value on the date ofmarriage.  Also, certain items such as life insuranceproceeds, gifts from third  parties (not from the otherspouse), inheritances and personal injury  damage awardsmay be excluded from the net family property  calculations.The rules regarding these exceptions are fairly strict and  each exception will have to be carefully reviewed before being  accepted.​
   
   

What information is needed to determine a spouse’s property entitlement?
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1. As  the property owned on the date of marriage and on the date of  separation is relevant to the calculation of net family property,  evidence of the value of these assets at these two points in time is  necessary.
   
   
2. Evidence supporting the value of exclusions from net family property calculations such as inheritances or gifts.
   
   
3. Some  property, such as pensions, antiques and realproperty will need to be  valued by a professional, orthe pension administrator.
   
   

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Is there a way to protect one’s assets and ensure that there is no obligation to pay spousal support?

1. Yes,  a marriage contract, if married, or a cohabitation agreement, if living  common law, that sets out obligations and entitlements at the end of  the relationship can provide that property will not be divided and that  no spousal support will be payable.
   
   
2. As  long as the terms of the contract or agreement are fair,each party has  independent legal advice, and the financial situation of each party is  fairly and accurately disclosed,the Courts will uphold a cohabitation  agreement or marriage contract.
   
   
3. There  is, however, no way to contract out of paying child support or  determining custodial rights in advance.○A cohabitation agreement can be  drafted so that it automatically becomes a marriage contract on the  date of marriage.
   

How long does it take to get a divorce?

1. The  most common grounds for divorce is having lived separate and apart for  one year. As such, it normally takes a little over a year to be  divorced.
   
   
2. In certain  circumstances, a divorce may be obtained more quickly. Adultery and  cruelty are expedited grounds that may entitle a spouse to a divorce  earlier than one year, but divorce on such grounds is more difficult and  costly to obtain than the ground of living separate and apart for one  year, as the party must prove cruelty or adultery if the other spouse  will not admit the same.
   
   
3. Courts will also want to ensure that adequate provisions for child support are made before granting a divorce.
   
   
4. It  is important to note that spouses may live “separate and apart” while  under the same roof. Spouses are considered separated when one spouse  has clearly indicated to the other that they consider the marriage to be  over and proceeds to live independently, even if remaining in the same  residence.
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Is it necessary to have the Court involved in resolving family law disputes?

1. No.  Very few family law cases proceed to a trial before a Judge, and  increasingly, couples are able to settle their cases through mediation.
   
   
2. Court  can be avoided by reaching an agreement on the issues arising from  separation. Alternative dispute resolution techniques, such as mediation  or negotiation through lawyers can often achieve a settlement.
   
   
3. It  is always in an individual’s best interest to obtain legal advice  before commencing mediation or attempting to resolve family law issues  on their own. A settlement that will not stand up in Court is a waste of  effort and will often create bad feelings, which can be difficult to  later overcome.