Relationships between close family members are certainly the most challenging relationships we face. Frequently, the resolution of a breakdown in a family relationship requires the assistance of a lawyer who will be compassionate to your needs and yet aggressive in getting your needs fulfilled. The lawyers of Baker Doodnauth have expertly helped a great many people resolve their family law issues, and have done so with a minimum amount of stress.
Our lawyers provide services relating to separation, divorce, custody and access, division of family property, spousal and child support, the preparation of domestic contracts, separation agreements, child protection issues and related matters.
CUSTODY AND ACCESS
Custody and access* disputes are frequently the most stressful and complicated aspect of any separation, be it between married spouses, common-law spouses or parents who have never lived together. The law regarding custody and access disputes is governed by either the Divorce Act or the Family Law Act. There is really no appreciable difference between the two Acts with respect to the determination of custody and access disputes.
The guiding principal in deciding who should have custody of or access to a child is what is in the best interests of the child and not what a parent or parents want. In determining the issues of custody and access, a Court will frequently consider which party was the child’s primary caregiver, the particular plan of care that a parent had following separation and the willingness of a custodial parent to allow or facilitate access to the other parent. There is a presumption that a child should have as much contact as possible with each parent because it is assumed that a child will benefit by maximum contact with each parent. Either party may challenge that presumption.
Parties (parents) can agree to, or a Court can order, various custody and access arrangements ranging from:
joint custody with each party having the child one-half of the time;
joint custody with the primary residence to one party;
sole custody with access to the other party; and
sole custody to one parent with no access to the other because access would not be in the best interests of a child.
There appears to be a presumption by the Courts that the parties should have joint custody with the primary residence with one party because that is in the best interests of the child. A Court will decline to make an order for joint custody where it believes, among other things, that the parties cannot jointly parent a child. Joint custody generally means shared decision making and not necessarily equal time with the child.
Further, other issues will follow a custody and access order or agreement. These include, but are not limited to parents consulting with the other to keep themselves informed about the health and welfare of a child. They may also include an obligation by the custodial parent or the parent with primary care of the child to assist the other parent in obtaining information about the child directly from the child’s caregivers, including teachers, doctors and other health care professionals.
* Parts of this article will change with the amendments to the Divorce Act.
DOMESTIC CONTRACTS AND SEPARATION AGREEMENTS
Part V of the Family Law Act provides that spouses or prospective spouses may enter into a marriage contract or cohabitation agreement with respect to property and support obligations on termination of their marriage or cohabitation. Such a contract cannot determine the right of custody of children following the separation of the parties nor can it limit a spouse’s right to possession of the matrimonial home. A marriage contract is a domestic contract by virtue of the Family Law Act. Domestic contracts may be filed with the court, allowing their support provisions to be enforced, varied or even set aside. The Family Law Act also addresses the validity and enforceability of a domestic contract.
The Family Law Act provides for the division of family assets following the separation of married couples. The division takes place upon separation or divorce. Family property is generally defined as any asset that is owned by either party. Family assets can include real estate, money in bank accounts, RRSPs, pension plans, Canada Pension Plan pensions and investments of any kinds.
The division of property pursuant to the Family Law Act is generally an equal division of assets acquired during the marriage. However, the Court has in certain circumstances the power to vary what would otherwise be an equal division of property owned at the date of separation, having regard to certain specific factors contained in the Family Law Act. Some factors the Court may consider in ordering an unequal division of property include whether the property was acquired before the marriage or through inheritance or gifts or whether it would be unconscionable to order an equal division.
SEPARATION AND DIVORCE
In Canada, divorce is governed by a federal act known as the Divorce Act. Under the Divorce Act a divorce may be granted on grounds of separation for one year, adultery or mental and/or physical cruelty. Parties are considered separated when there has been a breakdown of the marriage. The vast majority of divorces are granted based on separation for one year. Where there are children entitled to support a Court will not grant a divorce unless it is satisfied that reasonable arrangements have been made for the support of the children. This means that the party applying for the divorce will need to establish that child support is being paid in accordance with the Child Support Guidelines.
An uncontested divorce is a divorce where there are no other issues between the parties.
Child support in Ontario is determined pursuant to the Child Support Guidelines. The Guidelines include a chart that directs the Court or the parties themselves to the amount of child support that should be paid by one parent to the other. The chart is income based. The Guidelines also deal with the obligations of the parties for the payment of what are termed extraordinary expenses, which can include daycare and extracurricular activity costs. Generally theses expenses are paid proportionally to each parent’s income. Child support is generally payable while a child is in full-time attendance at an educational institution or is unable to withdraw from parental care. Many issues arise as to when child support finally terminates. Each case turns on its own facts.
The law generally deals with spousal relationships as financial partnerships. When the partnership breaks down, the person with the greater income may have to pay spousal support to the other. That being said, the law does expect the recipient spouse to look after his or her own needs to the best of his or her ability. In this respect, the law must address two very competing objectives. Spousal support is governed by Section 15 of the Divorce Act (federal legislation) and Sections 30 and 33 of the Family Law Act (provincial legislation). Spousal support in a divorce proceeding is governed by the Divorce Act, whereas spousal support for couples who cohabited outside of marriage and meet the legal definition of common law spouses is governed by the Family Law Act. The factors to be considered in determining the amount and duration of spousal support are addressed in those sections of the legislation and have been interpreted over the years by the courts. To decide how much spousal support and the length of time that it should be paid, the law is that judges must consider a number of factors, including how much the person requesting support needs to meet his or her needs, and how much the other person can afford to pay. A person may claim support to help him or her become financially self-sufficient or to keep from falling into financial hardship. The Advisory Spousal Support Guidelines are available to help spouses determine the appropriate amount of spousal support to be paid. If the parties proceed to court, the court may consider these Guidelines in determining how much spousal support should be paid, but they are not binding, although they can be highly persuasive. The Advisory Spousal Support Guidelines are different from Child Support Guidelines, which the court is required to follow.
COMMON LAW SPOUSES
When two people live together without getting married they may acquire rights and responsibilities with respect to the division of family property, support, custody and access. Generally, there is no substantial difference in the law relating to married and common-law couples regarding custody and access. The test remains the best interests of the child. That same general rule applies to child support and the Court will resort to the Child Support Guidelines.
When there is a separation between a non-married couple and one spouse is dependant upon the other, the Court may order that one spouse pay the other spousal support. Such an order will only be made when the parties have lived together as husband and wife for a period of at least three years, unless the union has produced a child in which case an obligation to pay spousal support may exist notwithstanding that the relationship lasted less than three years. Once the Court has determined that there is an entitlement to spousal support in a common-law relationship the general principals governing spousal support are generally the same as those between married spouses.
Perhaps the greatest difference between common-law spouses and married spouses is with respect to the division of family property. Generally, there is no presumption that there will be an equal division of family property as there is between married couples. Rather, the law has provided remedies for common-law couples in the case where one person has benefited or been unjustly enriched by contributions of the other during the relationship and that other party has made some sacrifice or suffered some deprivation as a result of that contribution. Contributions can include labour or money. In these circumstances the Court may decide it is unfair for the other person not to be compensated for his or her contribution.
There are generally two ways to resolve a dispute upon marriage breakdown or the breakdown of a common-law relationship. One way is through the Court and the other is through a written agreement that can be made between the parties. It is far preferable for the parties to reach their own agreement that can be incorporated into what is commonly referred to as a separation agreement. The process is far less costly and, generally, the parties are happier when they are permitted to fashion their own agreement rather than leaving it to the Court. That being said, when the parties cannot reach their own agreement, even with the assistance of lawyers, either may apply to the Court for it to decide part or all of the case on their behalf.
If you require legal advice or legal action in a family law matter, Baker Doodnauth will provide friendly, professional assistance and relief from what is often a stressful experience.
CHILD PROTECTION MATTERS
Children Aid Societies in Ontario may apprehend a child if they form the belief that a child maybe require protection from their parents or caregivers because of physical or emotional abuse, drug/alcohol abuse, mental issues, neglect issues or domestic violence issues. A society should only apprehend if they form the view that their concerns cannot be worked out while the child remains in the home.
Once a child is apprehended, the respondent parents or caregivers are required to provide a plan of care to address the Society’s concerns. A plan of care should consider a placement with another relative or family known to the respondent parents if a return to the parent is not feasible. The society may also consider a plan of care where a supervisor lives with the family or monitors the family while the parents address the concerns of the society.
It is critical to get legal representation and know your rights because there are statutory timelines that are important to understand. The longer a child remains in the care of the Society then the more likely it is that the Society will be asking the court to consider a permanent placement of the child known as a “Crown Wardship” as opposed to a “Society Wardship” which is a temporary Society involvement.
Child protection matters are often very emotional and stressful because it may result in the permanent separation between the parents and the children. We can assist you by:
Preparing and presenting a plan of care
Responding to the allegations of the Society
Addressing the concerns of the Society
Assisting in setting up supports from the community and community providers
Keeping track of timelines and marshaling a reunification of the family
Preparing briefs and attending at conferences
Preparing and arguing motions for placement or increased access
Making disclosure requests for documents and notes of Society workers
Preparing and representing you at trial