FAMILY LAW

FAMILY LAW

Separation and Divorce can be a very overwhelming process. Issues regarding decision-making authority (often referred to as custody), parenting time (access), and property division are complex legal matters and emotionally and financially draining.

We see the impact of relationship breakdowns daily. We advise clients on how best to minimize the inevitable upheaval of the process and avoid costly litigation. We work closely with all our clients to devise strategies to address all their concerns and worries by either drafting formal Separation Agreements, Cohabitation/Marriage Contracts or attending Mediation/Arbitration and/or Court.

Family law is a particular type of law in that almost every case presents unique people and circumstances. To understand how the law could apply to your case and what your best options are to resolve your family law dispute, please get in touch with us today.

DIVORCE

When parties have been separated for a minimum of one year (some exceptions apply), either party can proceed with a Divorce Application. Courts are extremely reluctant to grant a divorce if decision-making/custody, parenting time/access, and support issues are not resolved between the parties. You can resolve the above issues through a separation agreement and proceed with an uncontested divorce or litigate your matter in Ontario Family Court.  

Our office specializes in all matters related to contested or uncontested divorces in Ontario. 

DECISION MAKING/CUSTODY

Decision making (formerly known as custody) is a general term describing who is responsible for making the decisions about a child's medical, educational and religious needs.

 

Ontario Divorce Attorneys are now dealing with significant changes to the Divorce Act.

On March 1, 2021, the changes to the Divorce Act came into play. The expected changes were to go into effect July 1, 2020; however, they were delayed due to the COVID-19 Pandemic.

The following are a summary of the changes in the Divorce Act;

 

Custody/Access v. Decision-making/Parenting Time

The new language under the Divorce Act is very similar to British Columbia's Family Law Act, replacing "custody" and "access" with "decision-making," "parenting time," and "contact." 

 

This change to the Divorce Act is important as all court Orders issued after March 1, 2021, must contain the correct new language in the Divorce Act.

Child custody lawyers have welcomed this new language as it veers away from child custody being akin to the possession of property. 

 

Broadening the Definition of Family Violence

What is significant with the new Divorce Act is that it broadens the definition of family violence, including physical violence, psychological abuse, financial abuse, and the killing or harming of animals. 

A key element here is that the Act clarifies that family violence does not need to be a criminal offense or proven "beyond a reasonable doubt," but instead based on the civil burden of proof, that being on a balance of probabilities.

Divorce lawyers in Ontario have long discussed the difficulties in representing victims of violence where their abuser received a Peace Bond or the charges dismissed. This new element to the Divorce Act is vital in protecting victims of abuse.

 

Best Interests of the Child

Another change to the Divorce Act is emphasizing the "child's best interest." The "best interest of the child" is the only consideration to be taken into account when determining parenting Orders. Durham custody lawyers have generally argued their cases based upon the child's best interest, amongst other considerations. The "child's best interest" will now be the only element considered by the courts. The following factors must be considered under the new Divorce Act when determining a child's best interests:

  • the child's needs, given the child's age and stage of development, such as the child's need for stability;

  • the nature and strength of the child's relationship with each spouse, each of the child's siblings and grandparents, and any other person who plays an essential role in the child's life;

  • each spouse's willingness to support the development and maintenance of the child's relationship with the other spouse;

  • the history of care of the child;

  • the child's views and preferences, giving due weight to the child's age and maturity, unless they cannot be ascertained;

  • the child's cultural, linguistic, religious, and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

  • any plans for the child's care;

  • ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

  • the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

  • any family violence and its impact on, among other things:

    • ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child; and

    • the appropriateness of making an order that would require persons in respect of whom the ruling would apply to cooperate on issues affecting the child; and

  • any civil or criminal proceeding, order, condition, or measure relevant to the safety, security, and well-being of the child

 

A significant change in the new Divorce Act is that the "maximum contact principle" between a child and a parent has been removed as this may be inconsistent with the child's best interest. The previous Act encouraged this maximum contact principle, and many divorce lawyers in Ontario used this principle to argue for shared parenting. With the new Act, it is clear that there is no presumption of shared parenting, but rather the "child's best interest" is paramount.

 

Lawyers for child custody cases have long argued that the maximum contact principle can directly conflict with the child's best interest. How often has the lawyer acting for children found themselves caught between protecting the child's best interest and this principle? Far too many, I suspect. Many child custody lawyers in Oshawa will welcome these changes to the new Act.

 

Dispute Resolution

The new Divorce Act also emphasizes and encourages the resolution of disputes outside of Court. Lawyers will be required to inform and encourage clients to participate in alternative dispute resolution, including negotiation, mediation, or Collaborative law. 

Over the last 24 months of the COVID crisis, Durham divorce lawyers have encouraged clients to attend mediation and other forms of dispute resolution. Divorce lawyers in Ontario have generally found these alternative dispute forums hugely beneficial to clients, both financially and emotionally.

Durham lawyers are veering to settle disputes arising from cohabitation agreements through these negotiation-based alternative forums. COVID has brought many changes to the legal world, and separation lawyers now see the advantages to clients in opting out of the Court system. 

 

Relocation

The new Divorce Act speaks to 3 scenarios where a party plans to move from their current residence with a child or children. There are different procedures depending upon if the separated parties have an existing court Order or Agreement regarding parenting time and decision-making responsibilities.

The new Divorce Act sets out separate rules for three different relocation scenarios:

  • The first scenario is when a child's primary parent wants to move, and the move will not significantly impact the child's relationship with a person who has parenting time, contact, or decision-making responsibility. In these cases, the person who wishes to move must provide written notice of their move date and the intended new address. As the move will not significantly impact the child's relationship with other parties, there is no need to object.

  • The second scenario is when a parent of a child wants to move, and the move will significantly impact the child's relationship with a person who has parenting time or contact. In this situation, the person planning to move must provide 60 days notice in writing to any person who has parenting time, contact, or decision-making authority. The notice must state:

    • the date of the relocation;

    • the address of the new place of residence, including contact information; and

    • a proposal about how parenting time, contact, or decision-making responsibility will be exercised if the person were to move with the child

 

If the non-moving person with parenting time or decision-making responsibilities objects to the move, they have 30 days to file an objection. To object, they must file a court application. If no objection is filed, the person who wishes to move can do so.

 

If the non-moving person has contact but not parenting time or decision-making responsibilities, they cannot file an objection or stop the relocation.

 

If an objection is filed, the burden of proof to show that relocation is or isn't in the child's best interests varies and depends on the existing parenting arrangement.

 

If the parties have "substantially equal" parenting time, then the person who wants to move must prove the relocation is in the child's best interests. If the moving party has the "vast majority" of parenting time, then the person objecting to the move must prove it is not in the child's best interests. If it's somewhere between, both parties share the burden of proof.

  • In the third scenario, if someone who has contact wishes to move, they must provide written notice containing the date of the move and the new intended address. If this move has a "significant impact" on the child involved, the person with contact wishing to move must also provide 60 days' notice and a proposal of how to exercise their contact once the move happens. No one can object to someone with contact moving.

 

If you wish to consult with a divorce lawyer in Oshawa, a divorce lawyer in Whitby, or a divorce lawyer in Durham, please do not hesitate to contact our team at TMB Law. If you seek a Divorce Attorney in the GTA, we are happy to set up a Zoom consultation to answer all of your questions about the new Divorce Act.

CHILD AND SPOUSAL SUPPORT

Part I - Child Support: 

Child support is the financial contribution paid by a parent to help provide for their children, who are not in that parent's custody. Both parents must take financial responsibility for their children. Under the legal Guidelines, child support will be determined by a set formula rather than decided on a case-by-case basis by a judge.

The payment amount is based on the parent's income who pays Support and depends on the number of supported children. Child Support is generally based on Federal Child Support Guidelines. Under the Guidelines, a court may order a support amount different from the tables under certain circumstances.

 

Child support is not deductible by the payer, nor is it taxable in the hands of the recipient. Full financial disclosure is paramount in determining child support.

 

Part II - Spousal Support:

Spousal Support is money paid by one spouse to the other after separating or Divorce. It is sometimes called alimony or maintenance. Many factors may affect whether a married or common-law spouse is entitled to Spousal Support and how much Support they should receive.

Spousal support entitlement will depend on various factors that the Court will consider when ordering the amount and duration of Spousal Support. These factors include:

  • the financial means and needs of both spouses;

  • the length of the marriage;

  • the roles of each spouse during their marriage;

  • the effect of those roles and the breakdown of the marriage on both spouses' current financial positions;

  • the care of the children;

  • the goal of encouraging a spouse who receives Support to be self-sufficient in a reasonable period of time; and

  • any orders, agreements, or arrangements already made about Spousal Support.

 

Courts further consider whether Spousal Support would meet the following purposes:

  • to compensate the spouse with the lower income for sacrificing their opportunities for higher-income during the marriage;

  • to compensate the spouse with the lower income for the ongoing care of children; or

  • to help a spouse who is in financial need if the other spouse has the ability to pay

 

NEVERTHELESS, the spouse who receives Support has an obligation to become self-sufficient within a reasonable timeframe. 

PROPERTY DIVISON

Equalization of Net Family Property

The Family Law Act (FLA) governs the division of assets and property in Ontario. Settlements between married couples are conducted by Equalization of Net Family Property.

 

Equalization of Net Family Property entitles married couples to equalize their assets regardless of the parties' separation or divorce circumstances. Suppose you require assistance dividing up property and assets, or you cannot agree on how to divide property and assets. In that case, you may proceed with a Court Application for a Judge to determine the division of assets. Bear in mind that you must claim the property division within six years after legally separating or within two years of finalizing your Divorce.

Our team of experienced lawyers and law clerks can assist you with making the right decisions regarding your separation or Divorce. Contact us at TMB Law for a complimentary consultation for further advice. 

AGREEMENTS

Part I - Separation Agreements: 

A Separation Agreement is a legally binding contract between two people living together (common law or married) or having children together, and they have decided to separate. An accurately drafted Separation Agreement is equivalent to a Court Order and equally enforceable. 

The Agreement will deal with the property division, including a matrimonial home, the equalization of assets, Child and Spousal Support, decision-making authority, parenting time, and all necessary estate and property releases. Full financial disclosure is exchanged between the parties to ensure that the Agreement is fair and accurate. The Agreement should focus on protecting your rights.

The Family Law Act sets out the rules that make a Separation Agreement binding. In basic terms, the rules are:

  1. The Agreement must be in writing and witnessed.

  2. The parties must understand the Agreement.

  3. There must be an exchange of complete financial disclosure.

 

An Agreement can be set aside if these conditions are not met or if one of the parties claims that he/she was oppressed or was acting under duress when signing the Agreement. 

 

Part II - Cohabitation Agreements/ Marriage Contracts: 

Cohabitation Agreements and Marriage Contracts are binding Agreements that essentially protect your assets in the unfortunate event of a separation from your partner in the future or in the event of death. It allows you to retain certain property and/or investments brought into the marriage or cohabitation.

 

These agreements also allow the parties to determine in advance how their assets will be divided upon separation. A matrimonial home is an exception here. Section 4(1) of the Family Law Act removes the value of a matrimonial home as a date of marriage deduction. In other words, if you bring a home into the marriage, upon separation, you will have to divide the total equity of that home without deducting the date of marriage equity. These Agreements must include complete financial disclosure to ensure that the Agreement will not be set aside if contested at Court. Cohabitation/ Marriage contracts can be very complex depending on the clients' assets and income circumstances. 

The Court can set aside these Agreements if demonstrated that there were problems surrounding the negotiation of same. For example, if one or both parties did not have legal advice or one of the parties claimed oppression and/or duress, the Court can set the Agreement aside. If the negotiations were rushed and did not adequately allow one or both parties to understand what they were signing again, a Court could set the Agreement aside.

 

We strongly recommend that people hire a lawyer to draft these Agreements, whether for separation or marriage. A lawyer will give you legal advice and ensure all the necessary financial disclosure is exchanged to maintain the validity of the Agreement. A family law attorney will be familiar with all the required releases in the Agreements to protect your future assets and/or estate in the event of a separation. 

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