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Divorce
- When can I obtain a divorce?
To obtain a divorce, you and your spouse must have been living
separate and apart for one full year, have not resumed co-habitation
for more than 90 days during that year-long period, and there
must be no chance of reconcilation.
- In order to obtain custody and access, child support,
spousal support, or equalization of family property, do I have
to be divorced first?
No. Subject to certain time limitation periods, these
types of collary relief can be obtained regardless of whether
you are still married or not.
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Custody and Access
- What is the difference between custody and access?
Most people generally assume that if a parent has custody of a
child, the child resides with that parent. This is not necessarily
the case. A parent can still have "custody" of his/her
child without the child living with him/her. Custody relates to
decision-making abilities regarding major issues such as health,
education and religion.
Access relates to when each parent spends time with their child.
A parent's right of access to a child provides that parent with
a number of rights to make inquiries and be informed about their
child's health, education and welfare.
- I am not the child's biological parent. Can I still
get custody of or access to a child?
Yes.
- What factors does a court consider when determining
custody and access?
The most important consideration is - what is in the
best interests of the child? A court will look at a number of
factors in answering this question, such as the the love, affection
and emotional ties between the child and the person seeking custody/acces,
the child’s views and preferences, the length of time the child
has lived in a stable home environment and the ability and willingness
of each person applying for custody of the child to provide the
child with guidance and education, the necessaries of life and
any special needs of the child.
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Child Support
- Do I still have to pay child support if I had a child
with someone to whom I was never married?
Yes. Every parent has an obligation to provide support for his
or her unmarried child who is a minor or is enrolled in a full
time program of education, to the extent that the parent is capable
of doing so.
- How do I determine how much child support is payable?
Child support depends on where the parents live, and
what custody/access arrangement the parents have with regard to
the child for which support is payable. The Government of Canada
provides an online
calculator for determining child support payable.
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Spousal
Support
- What is spousal support?
Spousal support is meant to provide support for a spouse
after the breakdown of the marriage.
- Do I have to have been married to my spouse to be entitled
to spousal support?
No. Spousal support is available under both the Divorce
Act (which governs married spouses) and the Family Law Act (which
governs both married and non-married spouses). Under the Family
Law Act, a spouse includes either of two persons who is/was married,
as well as either of two persons who are not married to each other
and have cohabited (a) continuously for a period of not less than
three years, or (b) in a relationship of some permanence, if they
are the natural or adoptive parents of a child. Until recently, the ability of common-law spouses to make a claim for either damages or an interest in property from their former partner was limited to cases in which one could prove a ‘trust’ interest in the other’s property. Recent case law from the Supreme Court of Canada, however, has significantly expanded the ability of common-law spouses to make a claim similar to an equalization claim. How this case will be interpreted by Ontario courts and how it will play out in actual cases remains to be seen.
- When is spousal support payable? How is the amount and
length of spousal support determined?
Determining whether spousal support is payable is a complex legal
question which is determined based on the case's particular facts
and the parties' circumstances.
Under the Family Law Act, a spousal support order is supposed
to recognize the spouse’s contribution to the relationship and
the economic consequences of the relationship for the spouse;
share the economic burden of child support equitably; make fair
provision to assist the spouse to become able to contribute to
his or her own support; and relieve financial hardship.
The court looks at a number of factors in determining quantum
(amount) and duration of spousal support, such as:
(a) the dependant’s and respondent’s current assets and means;
(b) the assets and means that the dependant and respondent
are likely to have in the future;
(c) the dependant’s capacity to contribute to his or her own
support;
(d) the respondent’s capacity to provide support;
(e) the dependant’s and respondent’s age and physical and mental
health;
(f) the dependant’s needs, in determining which the court shall
have regard to the accustomed standard of living while the parties
resided together;
(g) the measures available for the dependant to become able
to provide for his or her own support and the length of time
and cost involved to enable the dependant to take those measures;
(h) any legal obligation of the respondent or dependant to
provide support for another person;
(i) the desirability of the dependant or respondent remaining
at home to care for a child;
(j) a contribution by the dependant to the realization of the
respondent’s career potential;
(l) if the dependant is a spouse,
(i) the length of time the dependant and respondent cohabited,
(ii) the effect on the spouse’s earning capacity of the responsibilities
assumed during cohabitation,
(iii) whether the spouse has undertaken the care of a child
who is of the age of eighteen years or over and unable by
reason of illness, disability or other cause to withdraw from
the charge of his or her parents,
(iv) whether the spouse has undertaken to assist in the continuation
of a program of education for a child eighteen years of age
or over who is unable for that reason to withdraw from the
charge of his or her parents,
(v) any housekeeping, child care or other domestic service
performed by the spouse for the family, as if the spouse were
devoting the time spent in performing that service in remunerative
employment and were contributing the earnings to the family’s
support,
(vi) the effect on the spouse’s earnings and career development
of the responsibility of caring for a child; and
(m) any other legal right of the dependant to support, other
than out of public money.
The issue of spousal support can also be addressed with reference
to the Spousal
Support Advisory Guidelines. These guidelines are not law
(in that courts are not bound to follow them) but they serve as
a useful starting point in determining whether a spousal support
obligation exists, and if so, for what duration and in what amount.
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Equalization
of Net Family Property
- My spouse and I were never married. Under the law, am
I entitled to any property division?
No, unless you had an agreement that says otherwise. The division
of family property is governed by the Ontario Family Law Act.
The sections in the act regarding family property are only available
to married spouses.
- How is family property divided?
This is a complex question, as it depends on the facts of the
case and the circumstances of the parties. The Family Law Act
says that after divorce or on separation for one year or more
and there is no reasonable prospect of resuming cohabitation,
the spouse whose net family property is the lesser of the two
net family properties is entitled to one-half the difference between
them. However, in some cases, depending on the facts, a spouse
may be entitled to more or to less than one-half the difference.
A spouse's "net family property" is a number which is
calculated by looking at the spouse's assets and debts as of the
date of marriage and the date of separation. Assets can include
bank accounts, cash, real property and pensions. Debts can include
line of credit, credit cards, mortgages and loans. Certain items
can be excluded from the calculation of net family property, such
as inheritences, personal injury damages awards, and gifts.
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Appeals
- I went to court and received a judgment/decision/order
which I disagree with. What are my options to change the judgment/decision/order?
Your options depend on which court the judgment/decision/order
was made in (Ontario Court of Justice or Ontario Superior Court
of Justice) and what type of subject matter the order deals with.
Subject to certain time lines, you may be able to appeal.
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