FAQ – Separation and Divorce
FAQ – Separation and Divorce
How can I become legally separated?
If you believe that there is no reasonable chance of a reconciliation between you and your spouse, you are “legally separated.” Even if you keep living in the same home with each other, you are possibly “legally separated.” There is a test that can help determine whether you are separated, which includes the following:
- Do you have sexual relations with each other?
- Do you ever go out with your spouse for social reasons?
- Do you ever do household chores for each other?
- If you are speaking with a third party about you and your spouse, do you refer to each other as separated?
The test is not limited to these four questions, but they are very important in determining if two people are “legally separated” or simply going through a tough period. Sometimes it is hard to determine the date of this separation, but you should try to work out a date with your spouse. A date of separation is helpful when you are splitting assets and property.
How do I resolve any issues that arise out of this legal separation?
As soon as a separation occurs, it is a good idea to enter into a Separation Agreement. This agreement outlines all the relevant terms of your split, including dividing up assets, property, child custody and support. It is highly recommended that the agreement is done with the assistance of an attorney.
What if we cannot come to an agreement regarding this Separation Agreement?
There are so many factors involved in a Separation Agreement. It is not always possible to find agreement on all these factors. If you and your spouse cannot work things out through mediation, it is possible to go through a court case where certain decisions are made by a judge.
What is a Separation Agreement?
A Separation Agreement outlines terms pertaining to child support, child custody, spousal support, visitation rights, division of assets and splitting property. There are some Separation Agreements that include other important issues for both parties, because it helps avoid disagreements in the future. If you want a Separation Agreement to have legal validity, it is important to write up the individual terms, have the document signed by both parties and get the signature of a witness.
When an agreement is in the drafting stage, both parties must be completely up front about their assets and properties. If one spouse is misleading the other regarding how much money or property they have, this could be grounds for nullifying the agreement in court at a later date.
If you are thinking about getting a Separation Agreement, it is vital to get legal advice from an experienced family lawyer before signing anything.
How do I get Divorced?
If you wish to get a Divorce, the proceedings must be initiated by one of the two parties. This is done through a Divorce Application. When the court issues a Divorce Application, it results in a document being served to the other party. The party who is served with Divorce papers now has 30 days in order to contest the claim from the first party. If a party disagrees with the prospect of Divorce, they can speak to an attorney and file the relevant motions.
When both parties agree that Divorce is a necessary next step, they go through a process with lawyers and the court to ensure the Divorce is finalized. This process involves swearing an Affidavit that you are supporting this judgment. The Affidavit is taken, along with the Notice of Motion, and filed at the relevant court.
The judge reviews all these items and grants the Divorce if he or she is satisfied. It is also possible to appeal a Divorce Judgement. If there is no appeal from either party, the court issues a Certificate of Divorce that finalizes the judgment. Another marriage is only possible when you have the Certificate of Divorce in your hands.
How long does the Divorce process take?
There is typically a three to six-month period involved in getting a Divorce. This period applies to cases where both parties live in Ontario and there are no serious disagreements or appeals regarding the Divorce materials. It is important to live in separate homes or apartments from your spouse for at least a year if you want a Divorce. The time-table is only void if there is evidence of adultery or abuse from one party to another.
Contrary to popular belief, you do not have to resolve every related issue in order to get a Certificate of Divorce. It is possible to continue contesting child custody, spousal support and other relevant issues and still get your divorce papers confirmed.
Is it possible for my spouse to stop me from getting a divorce?
Canadian Divorces are done on a “no fault” basis. This means that if one party wants a Divorce, you will get your Divorce. The only time the court refuses to grant a Divorce is if you cannot satisfy the judge regarding proper provisions for child support.
If I am living in a common law relationship with another person, do I have any legal rights?
There is a difference between being married or living in a common-law relationship, at least from a legal perspective. The law defines a common-law relationship as two people who are not married, but are co-habiting for at least three years while in a committed relationship. The three-year period is not necessary if they are parents.
If you are in a common-law relationship, you do have some rights with regards to spousal support, while child support is available even if you are not in any type of relationship. However, the laws are not the same for common-law relationships, as they are for marriages, in relation to property division. This makes it a little difficult to divide property when a common-law relationship ends. This is why many attorneys recommend that you enter into a Separation Agreement if you are in a common-law relationship. Not only are these agreements important when you are splitting, but many couples have them written up just in case the relationship does not work out. <
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Once I split from my spouse, how do we determine child custody?
When you are splitting from your spouse, child custody is often determined by the court in order to preserve the child’s “best interests.” If there is a dispute between both parties with regards to custody, the court can determine whether one parent is a better fit to raise and take custody of the child. There are cases where social workers or psychologists help the court make this determination.
What is the Office of the Children’s Lawyer?
The Office of the Children’s Lawyer is someone who the court can appoint in order to evaluate the issues in a case pertaining to child custody and visitation rights. It is necessary for the court and both parties to accept the Office of the Children’s Lawyer’s recommendation in these cases.
When an appointment is accepted, the OCL assigns a social worker to deal with the issues at hand. This involves investigating the parents and trying to determine whether one is a better fit to raise the child than the other. There are cases where neither parent is determined as fit enough to raise the child, which poses its own set of problems.
What is joint custody? What is sole custody? What is the difference between the two?
It is typically the case during a divorce or separation that one parent receives sole custody of the child. This custody is given to the child’s primary caregiver, which is often the mother. While the primary caregiver has sole custody, the other parent still has the ability to access the child through visitation. Sole custody means that the primary caregiver makes all important decisions regarding the child pertaining to their education and health.
While parents who only have access to their children are legally obligated to get information pertaining to the child’s health and welfare, they are not permitted to make unilateral decisions without consulting the custodial parent.
If the parents have joint custody of the child, they are both responsible for making these decisions by giving equal consideration to the other side’s point of view. All major decisions are made by the parents together, instead of one parent acting unilaterally without consulting the other parent.
Within a joint custody arrangement, the parent with whom the child is currently residing will make all immediate decisions about the child. This involves what the child eats, when they do their homework etc.
If there is a history of abuse from one parent towards the child, or the other parent, it is extremely unlikely that the court will award them joint custody. This is because communication between parents is absolutely crucial in ensuring the success of a joint custody arrangement.
It is also possible for the parents to get shared custody of the child. This is an expanded version of joint custody, where the child resides with both parents for an equal period of time. In addition, both parents are involved in every decision regarding the child. The courts encourage these types of child custody arrangements, because they want the parents to cooperate with each other. They do not want one parent to think they “own” the child in these situations.
If you are looking to determine your child’s custody during a separation or divorce, it is highly recommended that you go through mediation. This allows both parties to talk about the situation, instead of putting everything in the hands of a judge who does not know you or your child.
Do I need to pay child support?
If there is a primary caregiver who has sole custody, it is often the responsibility of the other parent to pay child support. This money is for the child’s benefit, not the custodial parent’s. The amount of child support ordered by the court is typically related to the parents’ income levels, along with the child’s needs.
There are cases where a parent is concerned that the other parent will spend the child support on themselves, not on the child. However, it is almost impossible to convince the court that you do not owe any child support. There is no tax deducted from child support for either party.
How does the court determine the quantum of child support?
There are a number of factors that determine the quantum of child support, but the most important factor is the payor’s income. There are formulas provided by the Federal Child Support Guidelines that help the court determine how much child support the payor is obligated to pay. The number of children involved also plays a factor in calculating child support.
If the payor is employed at a typical job, it is very easy to determine their income and child support levels. However, this becomes a little more complicated in cases where the payor is self-employed. For payors who are not self-employed, the income is examined through their Income Tax Returns, with line 150 of the Income Tax Return being especially important.
The process of determining a self-employed individual’s child support obligations are a little more complex, with the court making this judgment on a case-by-case basis. If you are not sure how much child support you will owe, or you need assistance in getting child support from your ex-spouse, it is important to consult with an experienced family law attorney.
Do I ever have to pay more than the child support amount outlined by the Federal Child Support Guidelines?
Yes, these guidelines have stipulations where a payor may be obligated to pay an additional amount of child support to deal with any extraordinary expenses that arise for the child. These expenses include but are not limited to:
- orthodontic expenses for the child
- daycare expenses
- extraordinary expenses for primary or secondary school education
- extraordinary expenses for post-secondary education
- extraordinary expenses for extracurricular activities.
When you are determining these additional expenses, it is important for both parties to calculate the total cost of this expense and make a determination regarding their share of these costs.
My former spouse is not allowing me to see my child. Do I still owe child support?
Yes. Child support is not for your former spouse; it is for your child. The issue of child custody has no bearing on a child support situation. If you are the child’s parent, you are obligated to pay child support.
Do I owe child support if I am not the biological father?
If you treated the child as if he were your own, you are obligated to pay child support. These cases are a bit more complicated and often require a case-by-case determination from a judge.
Am I within my rights to claim spousal support?
If you are a spouse coming out of a marriage or common-law relationship, you are legally allowed to claim spousal support. This is usually granted by a court if one spouse was financially dependent on the other during their relationship. It is also granted if one spouse suffers financially because of some unique circumstance. In cases where one spouse stays home to raise children, spousal support is almost always awarded.
How is the amount of spousal support decided?
These are the following factors that play an important role in the determination of child support:
- The needs of the dependent spouse based on the kind of lifestyle they enjoyed during the relationship.
- The ability of the payor to pay spousal support.
- The length of the marriage, which often includes time spent living together before getting married.
- The age and physical and mental health of both spouses.
- The dependent’s capacity to contribute to their own support.
- The standard of living enjoyed during the marriage.
- The career sacrifices of the spouse for the career advancement of the other spouse.
Are there guidelines that help determine spousal support?
There are no specific legislative guidelines that help determine the level of spousal support owed by one spouse to the other. However, the Spousal Support Advisory Guidelines were recently developed and they offer a framework that can assist both parties in determining spousal support.
The SSAG considers the incomes of both parties, whether children are involved, the marriage length and other important factors. The best family lawyers have a computer program that can help them use the SSAG to determine a level of child support in each case. If you visit Ottawa Family Lawyer, we can assist you with this matter.
Property Division – How does property get divided between spouses?
There is a division of the Family Law Act that specifies the Net Family Properties of both parties on the date of separation. This is not just a 50/50 split of all properties between both parties. It is a specific calculation that can vary based on the circumstances of each separation or divorce.
If there are a number of assets in question, it is important to get a second opinion from experts regarding the value of these properties or assets. The value on the date of marriage and separation is important when calculating the Net Family Property. Assets include your pension accounts. Even if one spouse is not getting access to the pension anytime soon, it is still an important asset that is included in the determination of Net Family Property.
There are many cases where one spouse is not fully aware of how many assets or property the other spouse owns. There are always hidden assets, where one spouse deliberately attempts to downplay the assets they own. It is very important for both parties to enter these negotiations with honesty and integrity. Family lawyers can help you if you believe that your spouse is purposefully hiding property or assets.
The Net Family Property of an individual is determined by taking the value of all the property, except excluded property, that they own on the valuation date. Then you deduct the spouse’s debts and liabilities and the property’s value from the date of the marriage. The idea is to calculate the increase or decrease in value of a person’s net worth from the date of marriage to the date of separation.
That is why it is important for couples to define a date of separation. This is a date when both parties felt there was no reasonable prospect of a reconciliation. It is not uncommon for both parties to have a different date in their mind.
If there is a significant increase or decrease of a spouse’s assets between the two dates of separation, it is incredibly difficult to properly divide their assets. In these cases, both parties figure out their own Net Family Property, with one party paying the other an Equalization Amount.
This Equalization Amount refers to the spouse whose net family property is the lesser of the two, which entitles them to one half of the difference between the two valuations.
For example, if a husband has a Net Family Property of $100,000, and the wife has a Net Family Property of $0, then the husband owes his wife an Equalization Amount of $50,000.
I inherited property when I came into the marriage. Do I need to share this with my spouse when we split?
Not all property receives the same weight when the Net Family Property determination is made. If you brought property into the relationship through an inheritance, it is very rarely considered part of the Net Family Property. In fact, it falls into the Excluded Property category, which is in the hands of the relevant spouse.
There are cases where the Matrimonial Home is a gift or part of your inheritance. In this case, you cannot consider it as an Excluded Property because it was shared and used by both parties during the marriage.
Similarly, if there is any inheritance you want to add into the Excluded Property section, you must be able to demonstrate your sole ownership of this property up until the date of separation. If you ever sold some of this property to help pay for your Matrimonial Home, or you sold it and added the money to a joint account, this property is no longer on the excluded list.
How does the Family Law Act define a Matrimonial Home?
A Matrimonial Home is defined by the Family Law Act as independent of your other property and assets. The Matrimonial Home is every property where both spouses lived together or considered their joint residence during their marriage. It is not possible to include the Matrimonial Home in any Excluded Property list. This means that Matrimonial Home’s that are inherited by one of the spouses are still considered a Matrimonial Home, not an Excluded Property.
In addition, if you owned the Matrimonial Home when you got married and continued to live in this home with your spouse until you separated or got divorced, this property cannot be deducted from the Net Family Property equation.
How can I protect the property I am bringing into my marriage?
If you are bringing property into the marriage that you want to protect in the event of a separation or divorce, it is important to enter into a Marriage Contract. These contracts can help you set terms with your spouse regarding any possible divisions of property brought into the marriage. This is especially true if you are inheriting or bringing one of your existing properties into the marriage and planning to use it as the Matrimonial Home. The only way to exclude this property from the separation or divorce proceedings is by specifying the relevant conditions in a Marriage Contract. If you want to complete this process, it is very important to consult with an experienced family lawyer who can guide you through the process.