WE CAN ASSIST YOU IN:
- Negotiating a separation agreement, including agreements regarding
parenting, division of property and support
- Obtaining a divorce
How soon can I get a divorce?
In Canada, divorce is governed by the Divorce Act. This statute (or compilation of laws) requires that you and your spouse be separated for one year before a divorce will be granted. A divorce can be granted in less than one year, but the circumstances must fit under specific criteria, be exceptional, and be supported by substantial evidence. Because of these requirements, most parties opt to wait one year before applying to the courts for a divorce. It is worth noting that while a divorce can be filed at anytime during the separation period, it will not be granted until the one year period has elapsed.
What is a Separation Agreement?
A separation agreement is a written contract between you and your spouse to live apart on certain terms and conditions. Separation agreements usually include sections on the custody and access of children (if applicable), spousal and/or child support, and the division of property, assets and debts.
Why do I need a Separation Agreement?
Think of a separation agreement as the roadmap that lays out your rights and obligations –as agreed between you and your soon-to-be former spouse–with respect to your children, your finances, your property, your pets and your home. A properly negotiated separation agreement greatly reduces the need to pursue claims in court, and in most cases, a judge will not grant a divorce unless issues such as custody, child support and property division (including the matrimonial home) have been adequately addressed in a separation agreement.
What happens if my ex and I cannot seem to agree on anything?
Reaching an agreement directly with your ex-spouse or partner is the best way of handling separation agreements. This is the way most people are able to settle issues. However, sometimes people are just unable to come to an agreement and that is what the courts are there for.
How will my property be divided once we get divorced?
When a marriage ends, the equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses.
What happens to our home?
The matrimonial home is treated specially under the Family Law Act (FLA); in fact, Part 2 of the FLA deals exclusively with the matrimonial home — what it is, how it is treated during the division of property, and who has a right to stay in it. As an asset, it is treated differently from other assets, when calculating net family property. Generally speaking, both parties have a right to possess –or live–in the home, regardless of who is on-title as the owner. Neither party can sell the house without the other party’s written consent, and unlike other types of property in the marriage, the value of the matrimonial home must be shared equally between both spouses, even if one spouse was the sole owner on the date of marriage.
My parents left me some jewelry and money as my inheritance. Do I have to share this with my ex if we divorce?
Generally, gifts and inheritances are excluded property during separation negotiations and property calculations. This means that you do not have to share or divide these things with your ex. In order for the exclusions to apply, the gifts must meet a certain set of criteria. The gifts must (a) have been given (by a third party) to one of the spouses after the date of marriage, and (b) the gift-giver must have expressly intended to give the gift or inheritance to the spouse alone, rather than to the family as a whole.
If the gift, or more likely, the inheritance, is used to purchase property, that property may be excluded if it can be proven that the inheritance was the only money used to make the purchase. If other monies (such as monies from a joint or other spouse’s account) can be traced to the property, it will become party of the net family property and no longer eligible for exclusion.
There are many detailed and complex issues involving separation and divorce. Call us today and let us help you save time and money.
WE CAN ASSIST YOU IN:
- Securing custody of your children;
- Obtaining access to your children, if they are in the care of your ex-partner or another guardian.
How is custody different from access?
Custody and access are not the same thing. Custody refers to the parent who is legally charged with the care and control of the children. The child(ren) typically reside with the parent who has custody. The non-custodial parent usually has access rights. This means that he or she has a right to visit and spend time, such as (holidays or birthdays) with the child(ren).
There are four types of custody:
If one parent has sole custody, this means that the child(ren) permanently live with that parent. In this situation, the other parent usually has access. The custodial parent retains the right to make decisions for the child(ren) regardless of whether the other parents approves.
Both parents have legal care and control over the child(ren), and the child(ren) can move freely between both parents. The child(ren) can also live with one parent, if this is deemed suitable. Neither parent can make decisions for the child(ren) without the agreement of the other parent. It is worth noting, that courts are often cautious in making this type of custody order in highly contentious divorce proceedings where parents are unlikely to agree with each other.
If the child(ren) live with one parent at least 40% of the time, shared custody and revisions to the amount of support paid by the ‘40%’ parent, may apply.
As the law evolves, concepts such as split custody have developed. Split custody occurs where one or more of the children remains with each parent. Split custody is a type of joint custody and both parents must agree to it. Courts do not ordinarily order split custody without parental agreement, as it is in the best interests of children to remain together.
My ex is abusive. Do I have to share custody?
The legal test for any decision involving children is what is in their best interests. Being in contact with an abusive parent or parent that has been abusive to the other parent is not in the best interests of the child(ren). Typically, courts will be very cautious about awarding joint custody to the offending party, but it is worth mentioning that any claims of violence as grounds for sole custody will need to be substantiated.
I currently share custody with my ex. Can I get this changed to sole custody?
If you and your ex spouse have custody arrangments detailed in a separation agreement, then you may want to amend the agreement to reflect this change, provided that your ex-spouse is in agreement. If this is not possoble, you may apply to the court to request an order for sole custody. Courts are often reluctant to alter the status quo, so you may need to present a compelling reason for requesting the change.
I just got a job in another province and want to move with our child. My ex is not happy about this. Can I still move?
The Supreme Court of Canada has established that a custodial parent cannot just move with the child(ren) without the other parent’s consent. If agreement cannot be reached between the two parties, the custodial parent must typically present a detailed plan to the court that outlines a variety of things from the health-care structure and availability of schools at the new location, to demonstrating the economic benefits that such a move would have on the child’s well-being. This is a complex area of law and it is best to work with a competent lawyer to present a detailed well organized custody plan supported by case law.
WE CAN ASSIST YOU IN:
- Securing orders of paternity
- Spousal support
- Child support
What is spousal support?
Spousal support is money paid from one spouse to the other upon the dissolution of their marriage. Spousal support is designed to compensate the receiving spouse for any financial losses they may experience as a result of the end of the marriage. It is not designed as a punitive measure. Spousal support can either be agreed upon and included as a clause in a separation agreement or brought as a claim in an application to the court. Spousal support is not available in every case of marital breakdown and is typically awarded when there is a significant income disparity between both spouses.
How is child support calculated?
The Federal Child Support Guidelines calculate the amount of child support that the paying parent is required to pay. The figures are based on the number of children and the parent’s income.
Do I have to pay child support? My ex and I were married for 5 years and we raised her 2 children from a previous relationship together in that time, but they are not my biological children.
While the presumptive payers of child support are typically the child’s biological parents, a child support claim may also be made against a party that assumed the legal obligations of a parent during the relationship, even if that party is not the child’s biological parent.
WE CAN ASSIST YOU IN:
- Processing an adoption (domestic or international)
I want to adopt. What are the general rules for adopting a child?
To adopt a child in Ontario, you must live in Ontario and you must be at least 18 years old. You do not have to be married but, if you are, your spouse must also agree in writing that he or she wants to adopt a child. Two people can only adopt a child together if they are married or living in a common-law relationship.
Adoptions usually require the consent of the child’s birth parents. In Ontario, written consent for adoption can be granted once the infant is 7 days old. Once this has taken place, a period of 21 days must elapse before the adoption can be deemed as final. The infant’s birth parents can change their mind at any time during the 21 day period, but the adoption will be deemed to be final once that time period has passed.
What are the differences between public and private adoption?
In Ontario, you can adopt a child through the Children’s Aid Society (CAS), which is considered to be a public adoption. The child must reside with you for a period of 6 months prior to the adoption, and you will be required to go through a standard screening process. There is no cost for public adoptions.
You can also adopt a child or children through a private agency. The adoption will proceed through a private adoption practitioner that has been approved by the Ministry of Children and Youth Services. The standard screening will apply, but there is an average cost $20,000 to process a private adoption.
If you want to adopt a child that is already a part of your family, you do not need to go through the CAS or a private agency, but you will need to obtain a formal order of adoption from the court.
However, if you wish to adopt a family member who lives outside Canada, there are a number of steps you must take, including:
- completion of a homestudy assessment and training program,
- obtaining approval by the Ministry of Children and Youth Services,
- applying through an Ontario agency licensed to handle adoptions in the child’s home country, and
- submission of an application to Citizenship and Immigration Canada to get permission for your adopted child to move to Canada.
International adoptions follow a two-step process. The first step involves the adoption process (as stated above), and the second step involves the immigration sponsorship process.
Regardless of the type of adoption, all potential adoptive parents must complete the following programs:
1) The Structured Analysis Family Evaluation (SAFE) homestudy is completed by licensed social workers approved by the Ministry of Children and Youth Services before approving the arrangements for the adoption. The purpose of homestudy is to assess the ability of the applicants to parent an adopted child, and involves discussions with an adoption worker about the adoptive parents attitudes towards parenting as well as exploring their values and beliefs. It can include references, medical reports and other personal information.
2) The Parent Resources for Information and Development and Education (PRIDE) program is a standardized training program to help prepare all prospective parents for the responsibilities of raising an adopted child. The curriculum involves a variety of areas such as: the importance of connections to the child’s birth family and kin, and the importance of cultural and racial awareness.