Family Law FAQ

An uncontested divorce is one where both spouses agree on all the issues raised by the divorce. Where spouses agree on the issues, court officials will generally process the divorce without requiring the spouses to appear in court.

In a contested divorce, the spouses disagree on some or all of the issues raised by the divorce. Some of the most common disagreements in divorce proceedings are child custody and access, child and spousal support, equalization of property etc. In a contested divorce, both parties must file court documents setting out their positions on the disputed issues. If the parties are unable to settle their issues prior to a trial, a final order will be made on the issues in dispute and a divorce will be granted by the judge.

Child support payments take precedence over spousal support. The courts will always choose to award child support to the fullest, consistent with the Child Support Guidelines. When it comes to spousal support, courts are much more flexible. Courts will reduce spousal support payments where the financial burden on the paying parent is overwhelming.

Courts may order spousal support in cases where the parties have been in long term relationships which end around the age of retirement. If one partner was a stay at home parent who didn’t work and who cannot reasonably be expected to get into the working force, to earn enough money to support the lifestyle to which they were accustomed, then that party is going to get a large spousal support payment.

The simple answer would be no.

The courts are unwilling to order a divorce where the issues of child support and custody have not been settled and no reasonable arrangements for the care of the children have been made as this would be contrary to the child’s best interests.

The parent with whom the child lives is entitled to receive child support from the other parent, on behalf of the child. In Ontario, the amount paid by the non-custodial parent is governed by the Child

Support Guidelines.

As per the Guidelines, child support is made up of both:

• a basic monthly amount, called the table amount
• an amount for other expenses, called special or extraordinary expenses

Table Amount

The table amount paid depends only on two factors:

• the gross annual income of the payor parent and;
• the number of children the support is for.

Special or extraordinary expenses

As per Section 7 of the Child Support Guidelines, the payor may be required to pay the children’s “special or extraordinary expenses” over and above the table amount of child support. These include child care fees for daycare, healthcare expenses for orthodontics, prescriptions, eyeglasses, post-secondary education expenses, expenses for extracurricular activities such as competitive sports, arts or other programs. These expenses are to be shared proportionate to income. If the parents do not agree on how special or extraordinary expenses are divided, they might go to court. The court looks at whether the expense is necessary for the child's best interests and whether the amount of the expense is reasonable. If the parents used to live together, the court also looks at the spending patterns of the family before the parents separated.

Unlike the child support, there are no legally binding guidelines for spousal support. Assuming an entitlement exists to spousal support, the amount and duration can be determined by reference to the Spousal Support Advisory Guidelines.

The Spousal Support Advisory Guidelines are not law, but Ontario Courts do refer to them as an aid. The Spousal Support Advisory Guidelines are not set out in tables; although they can be determined by specialized software that takes into account various factors such as the length of the marriage, the custody situation, the age of the parents and the amount of child support paid.

The amount is based on the economic advantages and disadvantages resulting from a relationship or its breakdown, the past and future financial consequences of caring for children beyond the scope of child support, and economic hardship. Spousal support also promotes economic self-sufficiency. In most cases, the Spousal Support Advisory Guidelines are applied to determine the amount of spousal support owed.

The Spousal Support Advisory Guidelines provide two formulas, one involving the payment of child support and one without. They also offer high, low and medium coefficients to determine spousal support obligations. Judges usually use the Spousal Support Advisory Guidelines but are not obligated to.

Spousal support can be paid by both married and common law couples. Spousal support can be owed to married spouses who are separated, but not divorced.

We normally use the term “spouse” to refer to married partners. However, the definition of “spouse” under the section of the Family Law Act pertaining to spousal support, includes common law partners:

“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.

If you were married, then you may apply for spousal support under either of the Divorce Act or the Family Law Act. On the other hand, common law couples may only apply under the Family Law Act.

There are circumstance which would allow a married person to seek spousal support through the provincial Family Law Act. This is possible where a married couple lives separate and apart and wishes to continue to do so without getting a divorce. If they do apply for Spousal Support under the Family Law Act, and one of them later decides to seek a divorce and a new spousal support proceeding (under the federal statute), the provincial proceeding can be stayed and a new one commenced.

If you were in a common law relationship, or you had a child together and cohabitated in a relationship of some permanence, then you would only be able to apply for spousal support under the Family Law Act.

Spousal support is not granted in every case. The court uses its own approach to decide if spousal support is even owed. Only once it decides that spousal support is owed will the court then apply its own approach to determine the amount of spousal support which is to be paid.

Whether or not spousal support is even awarded depends on various factors such as: financial means and needs of spouses, length of marriage/cohabitation, role of each spouse during marriage, to compensate the spouse with the lower income for ongoing care of children, functions performed during the relationship, and any prior orders, contractual agreements or arrangements made about spousal support. Contrary to popular belief, misconduct, cruelty and adultery are not considerations. On the other hand, conduct that is so unconscionable as to amount to a repudiation of the relationship can cause the court to entirely reject the awarding of spousal support.

Mostly the court awards monthly spousal support. On rare occasions the court will make lump sum payments.

Spousal support can be requested on a periodic monthly basis or on a lump sum basis. Lump sum payments are used when the reliability of periodic payments is in question or when the parties want finality. The duration of payments can either be indefinite or definite. You can agree to review periodic spousal support by setting the frequency of and triggers for review. You can also agree to terminate payments upon a future date or the happening of an event such as retirement, re-marriage or returning to work.

If the parties are acrimonious towards each other, a couple may want nothing to do with each other and a lump sum payment would allow them to sever ties.

Sole Custody means that only one parent has custody of the children and the children always reside permanently with the parent having sole custody and the other parent may have access rights. The custodial parent makes all the important decisions about the children, even if the other parent disagrees.

Split Custody means when one parent has custody of some of the children, and the other parent has custody of the remaining children. Courts try to never split up younger children from their siblings; however older siblings often choose to live with different parents.

Joint Custody means that both parents have custody of the children. Courts will normally only award this type of custody to parents who are able to cooperate on parenting matters in the best interests of the children. Commitment by the parents to work cooperatively and make prudent decisions in the best interests of the children is required. Joint custody does not mean that children reside equally with both parents. Joint custody arrangements vary greatly on the specifics of residence of the child. Many agreements provide a child with a primary residence and a secondary residence with the other parent on weekends, holidays etc.

There are two forms of joint custody in Ontario:

a. Joint Legal Custody: In joint legal custody situations both parents have input into major decisions affecting the children, including health and education. The residence and visitation arrangements for the children may vary widely.

b. Joint Physical Custody or (Shared Custody): In joint physical custody situations both parents have joint custody of the children and both parents spend at least 40% of the time with their children.

An Access Schedule means the time that the children will spend with their access parent. The child’s right to access is a paramount entitlement. Courts are imposing sanctions upon custodial parents who interfere with or otherwise impede access.

Once an access agreement has been negotiated or a court has made an access order, neither parent is free to unilaterally extend, suspend or terminate such access in the absence of a Court Order.

Supervised access may be ordered by a court in such circumstances that a child is deemed to be at risk of harm if left in the care of one parent.

Supervised access can take place in the presence of a designated member of that parent’s extended family such as grandparents, mutually agreeable relatives, and family friends or in a Supervised Access Centre. Supervised access can be terminated once the parent has established that they are fully capable of caring for their children without cause for concern on the part of the court.

Yes. You will be required to pay child support if the children reside with your spouse the majority of the time. If the children reside with you half of the time, you may still be required to pay child support to your spouse if your income is greater than your spouse’s income, though the amount of child support may be at a reduced level.

Unless your safety is at risk, you should not leave the matrimonial home without first obtaining legal advice.

If you have children, you are not permitted to leave the home with the children without the consent of the other parent or a Court Order. However, if you leave without the children you may be prejudicing your rights to custody of the children. It might also get difficult for you to gain access to the home to retrieve your belongings at a later date.

Unless there is a Court Order or Agreement that provides otherwise, both spouses have a right under the law to live in the matrimonial home, even if one of them is not a registered owner of the home.

Some of the factors that the court will take into consideration when ordering exclusive possession are: the best interests of the children, including the effect that a move might have on them, and how they feel about moving or staying; the children's attachment to the neighbourhood and friends, including how long they have lived there, if they are in school; any violence committed against you or your children; you and your partner's financial situations; the availability of other suitable and affordable accommodation.

If you have children, the person who has custody of the children will most often be the one who stays in the family home with the children. This helps children adjust to their new family situation in a place and neighbourhood that they already know.

Property includes everything that you own, for example:

• your home and any other real estate;
• your car and other vehicles;
• personal items, such as clothing, jewellery, books, and CDs;
• household items, such as furniture, appliances, and electronic equipment;
• bank accounts, RRSPs, investments, insurance policies, pensions, and other financial assets; and
• any businesses.

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. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment.

There are some possible exceptions to these rules, which are called excluded property, and may include gifts or inheritances received during the marriage from someone other than a spouse, provided that the gifts or inheritances were not used towards a matrimonial home.

Conduct such as cruelty, adultery, or a spouse’s role in bringing about the dissolution of the marriage is not relevant to property division.

The Family Law Act rules about property division do not apply to common law spouses so there is no automatic right to divide the property or share its value. The property that you bring into the relationship, plus any increase in its value, usually continues to belong to you alone. Anything you buy for yourself with your own money during the relationship and own in your name usually belongs only to you. Things that you and your spouse buy together during the relationship belong to you both jointly. If you separate, the things you own jointly will be divided or their value shared.

If you have contributed financially or in some other way to your spouse's property, you might be able to claim a share. For example, you might have done unpaid work at home so your spouse could do paid work, or you might have worked in a family business. A court would look at whether your spouse was "unjustly enriched" at your expense. If you are in a common law relationship, you are not entitled to an equalization payment, but may be entitled to a payment from your spouse to pay you back for a direct or indirect contribution to property that he or she owns. These claims are referred to as trust claims.

If you are awarded a share of your common-law spouse's property, the size of the share may be based on the size of your contribution or on how much your contribution increased the value of your spouse's property.

If you are married, both parties have an equal right to stay in your home unless a judge decides that one of you must move out.

Since both of you have a right to stay in your home, neither of you can sublet it, rent it, sell it nor mortgage it without the other’s permission. This is true even if your lease is in only one of your names or if only one of you owns the home.

If you have children, the person who has custody of the children will most often be the one who stays in the family home with the children. This helps children adjust to their new family situation in a place and neighbourhood that they already know.

The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable or unfair, having regard to the following factors:

a. where one spouse failed to disclose to the other spouse, debts or other liabilities existing at the date of the marriage;

b. where one spouse incurred debts or other liabilities recklessly or in bad faith and these debts and liabilities are now being claimed in reduction of that spouse’s net family property (e.g., by gambling or making rash investment choices, or spending beyond his/her means);

c. where a large part of a spouse’s net family property is made up of gifts made by the other spouse;

d. where a spouse intentionally depletes his or her net family property in order to avoid paying the other spouse a large equalization payment;

e. where the spouses cohabited for less than five years, and under equalization one spouse would receive a disproportionately large equalization payment;

f. where one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family;

g. where a written agreement exists between the spouses that is not a domestic contract (If a domestic contract exists, its provision will be respected by the courts); or

h. existence of any other circumstance relating to the acquisition, disposition, preservation, maintenance or improvement of property.