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FAMILY LAW is governed by a number of Federal and Provincial Laws that apply to couples who are legally married or cohabitating (living “common-law”). There are many rights and obligations that are owed between these individuals both during the marriage or cohabitation and also upon the breakdown of the relationship.  It is also important to remember that all aspects of family law apply equally to all couples in Ontario, regardless if they are same sex couples or opposite sex couples. Further, if the couple has child(ren), there are certain rights and obligations that arise with respect to those child(ren).  We assist clients in dealing with all of the issues that arise with respect to these rights and obligations and help our clients navigate through these complex laws and procedures, in a manner sensitive to how difficult these situations may be.

1In Canada, the only way to legally end your marriage is by obtaining a divorce.  The laws regulating divorce are governed by the Divorce Act.  A divorce is a court Order simply outlining that you and your spouse are no longer legally married. The primary prerequisite for obtaining a divorce is to show the court that you and your spouse have been separated for at least one year.  If you and your spouse have child(ren), there is an additional requirement to show the court that you have both made a plan for the care of your child(ren).  Further, frequently the issues of custody, access, support and division of property can be resolved in advance of a divorce. It is also important to note that a divorce can proceed on a contested or uncontested basis. In an “uncontested divorce”, after one spouse requests a divorce and files an Application, the responding spouse does not contest any of the issues, and the divorce becomes an uncontested divorce.  Frequently, in cases where the parties have been able to resolve their other issues, the matter can proceed on an uncontested basis.  A “contested divorce” simply reflects that after one spouse serves the other, the other spouse will contest some or all of the issues.

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2One of the most common issues that arises when there is a breakdown of a relationship is that of child custody and access which involve questions such as which parent the children will be living with and when and how often the other parent will be able to see the children.  However, the core issue in custody and access is really the question of who will make the major decisions pertaining to the children. Frequently, we try to resolve these issues through negotiation or mediation to create an agreement that can be incorporated into a formal Separation or Parenting Agreement (see Domestic Contracts).  However, in the case of high-conflict divorces or separations, the parties often require the assistance of the court to resolve these issues. Above all, the Family Law Rules and the case law make it very clear that, when resolving issues pertaining to children, the “best interests” of the children should govern.

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3The access parent is generally required to pay the other parent a monthly child support payment.  This payment is based on the fact that every parent has an obligation to support their children, whether or not the parents were married or cohabitating and irrespective of how involved the parent is with the children. Child support is governed by the Child Support Guidelines which dictates how much support the “support payor” is obligated to pay based on their income. How to set the payor’s income for child support purposes can sometimes be straightforward but, sometimes, it can be quite complex. There are also special provisions governing how parents should share the costs of their children’s extraordinary expenses.

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4Spousal support is not limited to parties that were married and can include parties that were cohabitating for at least three years or, where the parties have cohabitated for less than three years, have children together. Similar to child support, spousal support can be agreed to by the parties or ordered by the court. Spousal support is not appropriate in every separation or divorce, and either party can be obligated to the other.  Generally, spousal support is ordered to try and cushion any economic disadvantage that a spouse would suffer due to the separation or divorce. The Divorce Act does reflect an expectation that, after separation, each party is obliged to make efforts to support themselves such that spousal support will terminate after a defined period of time.  There are also Spousal Support Advisory Guidelines that offer assistance in what the sum and duration of support should be.

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5The Family Law Act provides the technical requirements for all Domestic Contracts. There are a number of different types of Domestic Contracts and each serves a different purpose. Parties can choose to resolve the issues surrounding the breakdown of their relationship through the use negotiation and mediation of a Separation Agreement which can reflect agreements on all or only some outstanding issues as opposed to starting a court action and asking a judge to decide their issues.  Marriage Contracts and Cohabitation Agreements are to set out how individuals wish to arrange their affairs during their marriage or cohabitation. As required by the Family Law Act, in order for any Domestic Contract to be considered legally valid in Ontario, it must be entered into voluntarily, be in writing, be signed by both parties and be witnessed.  Generally, each person entering into a Domestic Contract must exchange financial disclosure regarding their debts and assets.  It is also important to note that that each person entering into a Domestic Contract must obtain Independent Legal Advice.

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6Division of property entails both personal property and real property and includes such things as the matrimonial home and any other real estate, cars or any other vehicles, jewelry and other personal items (such as clothing and books), household items (such as furniture and appliances), bank accounts, RRSPs, pensions, any other investments, and business interests. When a married couple is separating (or getting a divorce), the division of their property is governed by the Family Law Act, which generally states that any increase in net worth during the time the parties were married should be shared by both spouses.  This division is referred to as an “Equalization of Net Family Property”. In order to determine the Equalization of Net Family Property, each party must first determine what their Net Family Property (NFP) is.  It is important to know that, when calculating a party’s NFP, there are special rules that apply to the date of marriage assets and debts, the matrimonial home and gifts and inheritances.  It is a somewhat complicated process involving various calculations, data, and valuations. While all married couples that are separating are entitled to an Equalization of Net Family Property, it is important to be aware that there are certain limitation periods. It is important to note that equalization of net family property applies only to married couples.

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7The Children’s Aid Society (CAS) becomes involved with families when there are allegations, or risks, of harm or abuse to a child.  It needs to be understood that “harm” has a very broad definition and can include physical or emotional harm, lack of care, or sometimes being in the midst of a high-conflict or abusive relationship. When CAS becomes involved with a family, both the length of their involvement and the level of intervention will vary.  In some cases, CAS may close a file after a few at-home visits if they are satisfied that the child(ren) are not in harm or at risk of harm.  On the other hand, there are cases in which the children may be apprehended by CAS and taken into their care. If a Children’s Aid Society (CAS) apprehends your children, they must commence  a Family Court action against the parents promptly. There are a series of pleadings that they will serve on the parent. In such a situations, it is important to retain a lawyer (or if you cannot afford a lawyer, confer with Duty Counsel at the Court listed on the pleadings) and to fully and appropriately respond to any allegations.  Child protection matters can have significant consequences on a family and must be treated promptly and with special care and respect. In Ontario, Child Protection Law is governed by the Child and Family Service Act whose primary mandate is the promotion of the children’s best interests and the protection and wellbeing of the children. Regardless of how it may first appear, it is always serious when CAS becomes involved with a family and the concerns and process must be dealt with in a serious manner.

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