These are the legal terms which describe where children will live, how much time they will spend with each parent, and who will make parenting decisions.
In family law, custody means the right (and responsibility) to make major decisions affecting the health, education, religion and general wellbeing of a child. Sole custody means one parent has the sole responsibility for making these decisions, whereas joint custody means both parents make these major decisions together. Residency is where the child lives. The child can live primarily with one parent, with access (sometimes called visitation) to the other parent; or residency can be shared between the parents.
Typically, joint custody requires the parents to communicate effectively about parenting issues.
Custody and residency are not the same. Parents can have joint custody, meaning they will make major decisions affecting the child’s well-being together, with the child living primarily with one parent.
Generally speaking, the older a child is, the more likely he or she will have a say in where he or she will live. This is not a hard and fast rule. ‘Choosing’ a parent can cause considerable stress for a child, so his or her maturity level is taken into account. I am no longer taking cases where the parents disagree on custody or parenting.
Child support in Canada is governed by Child Support Guidelines. The Guidelines link the amount of child support payable directly to the parents’ income, and the number of children that are entitled to support. There are two aspects to child support: the table amount, and the amount for special and extraordinary expenses.
The table amount is expected to cover the day-to-day needs of the child, such as housing, food, and clothing. Special or extraordinary expenses are above and beyond the day-to-day needs of the child, such as, daycare, tutoring and rep sports. The general rule is that the parents will contribute to these types of expenses over and above payment of the table amount of child support, in amounts proportionate to the parents’ respective incomes.
The parent who does not have primary residency of the child typically pays the table amount. This does not mean that if you share residency of the child 50/50, no child support is payable.
Spousal support is paid by one spouse for the benefit of the other spouse. In Ontario, couples do not need to be married for a spousal support obligation to exist. If you are not married, you have to live with another person in a conjugal relationship for a minimum of three years, or be in ‘a relationship of some permanence’ if you have a child together, in order for spousal support to be an issue. However, just because you live with someone for three years, does not mean there is an automatic entitlement to spousal support. Simply being married does not entitle a spouse to support. Entitlement is determined by examining such things as the roles assumed by the parties during the relationship and any advantages or disadvantages flowing from those roles.
Once entitlement is established, the next step is to determine the amount and duration of spousal support. The Spousal Support Advisory Guidelines (SSAGs) provide a comprehensive framework for determining support and are increasingly relied upon by the courts in Ontario.
Spousal support payments are tax deductible to the payor and taxable income to the recipient. In order for this tax treatment to apply, there must be either a court order or a written agreement setting out the spousal support arrangements. Please note that I do not take cases involving the variation of spousal support.
The law takes a modern view of marriage in which a married couple is considered a single economic unit regardless of who earned (or spent) what during the marriage. The division of property for married couples is based on the equal sharing of the wealth accumulated during the marriage. You do not necessarily give half of your assets to your spouse when you separate. It is the increase in each spouse's total net worth from the date of marriage to the date of separation (known as your net family property) which is shared.
Generally speaking, you do not have to share the following with your spouse as a result of separation: a) assets you received through inheritance; b) assets you received as a gift from a third party; c) money received via damages or a right to damages for personal injury; or d) proceeds or a right to proceeds of a life insurance policy. However, if monies received as a result of these events are mingled or mixed with your spouse’s assets, you may lose the exclusion. If any of these monies are put into a jointly held asset, such as, a joint bank account, it is possible you may lose the exclusion. As well, if you put any of these monies into the matrimonial home, you will likely lose the exclusion.
The value of property owned on the date of marriage will not be shared with your spouse, with the main exception being a matrimonial home. If you own a home at the date of marriage, and you are living in that same home when you separate, the entire value of the home will have to be shared with your spouse. If the home you are living in on the date of marriage is sold during the marriage, and you are living in a different home on the date of separation, you will not have to share with your spouse the date of marriage value of that first home. The division of property can become very complicated. In addition to determining what qualifies as a debt or gift, division of assets such as stock options, minority shareholdings and pensions will require assistance from qualified business valuators or accountants.
Known by various names (Prenuptial Agreements, Marriage Contracts or Cohabitation Agreements) an agreement signed at the start of a relationship is technically a Domestic Agreement under the law in Ontario (If the parties to a cohabitation agreement marry each other, Ontario law deems that the agreement becomes a marriage contract automatically.
A properly prepared cohabitation agreement can protect your assets and future income in the unfortunate event of a breakdown in the relationship.
Negotiating and drafting cohabitation agreements is a delicate business, requiring respect for the parties’ commitment to the relationship, as well as each party’s future interests and financial security issues.
Like separation agreements and marriage contracts, a cohabitation agreement is not enforceable unless made in writing, signed by each of the spouses, and witnessed by a third party adult. There must also be full financial disclosure to minimize the chance of a successful challenge to the agreement in the event of separation.
Marriage contracts are agreements entered into by two people who plan to marry, and wish to agree on their respective rights and obligations during marriage, or upon separation. In some jurisdictions these agreements are only valid if they are signed before the marriage takes place (This is where the concept of a ‘prenup’ comes from). In Ontario a marriage contract is valid whether it is signed before or after the marriage takes place. Marriage contracts can be tailored to a couple’s specific concerns. Some people wish to protect only certain property, while others wish to protect all property.
These types of agreements are becoming more and more popular for a variety of reasons. People marrying a little later in life, who have accumulated certain assets and wealth, wish to protect themselves, and many people entering their second marriages want to ensure their children from their first marriages are financially protected.
Typically new clients use the word divorce to describe the entire process associated with the breakdown of a marriage. A divorce is simply the legal termination of a marriage, and requires a court order. While it is possible to obtain a divorce on grounds of adultery or cruelty it is difficult and time consuming to prove these issues, and obviously adds to an already contentious situation (There is no economic advantage to obtaining a divorce on these grounds).
Most divorces are obtained on the basis of the parties having lived separate and apart for a period of at least one year. Living separate and apart does not require the couple to live in two separate locations. A couple can be living separate and apart in the same home, provided they are not living together as a couple.
Once a divorce is ordered, there is a 31 day waiting period before it is final in order to ensure there are no appeals. On the 31st day a Certificate of Divorce can be obtained. If you want to re-marry, most governments will require this certificate before issuing a marriage license.
A divorce can be obtained on either a contested or uncontested basis. A contested divorce means there is a challenge; an uncontested divorce means nothing is being challenged. When a divorce is contested, it generally means one or all of the issues of support, custody/access, and property/debt division are outstanding (these are called corollary issues).
Ideally, a couple will resolve their corollary issues through a separtion agreement. If all corollary issues are dealt with by an agreement, the divorce application can be filed on an uncontested basis. The majority of couples seek to reach an agreement prior to proceeding with a divorce. A separation agreement cannot legally end a marriage; only a Judge can do that, with a divorce order.
A separation agreement is a contract made between two spouses who lived together (whether married or not) and are now living separate and apart. The legal issues arising from a separation can be settled on a final basis through a properly prepared and executed separation agreement. This avoids the need to go to Court. However straightforward or complex the issues, the final and binding nature of a separation agreement requires the parties entering into it to be fully advised of the nature and consequences of all of the terms contained in the agreement.
A separation agreement is not enforceable unless it is made in writing, signed by the spouses with each signature witnessed by a third adult. A separation agreement can be set aside by a court if:
- a) a spouse fails to disclose his or her significant assets, debts or other liabilities existing when the contract was made,
- b) a spouse did not understand the nature or consequences of the agreement, or,
- c) the agreement is not otherwise in accordance with the law of contract. For example, if there was fraud, material misrepresentation, or pressure imposed by one party on the other to sign.
I have acted for parents, grandparents, and extended family members in child protection proceedings including crown-wardship trials. This is challenging work where parents often feel overwhelmed and intimidated. I have successfully defended parents in apprehension and crown wardship hearings. While I am no longer taking court work I do meet with people involved with Children's Aid for general advice.