FAMILY LAW FAQ

Ask Us

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I want a divorce. Is the one-year separation period mandatory?

It depends on your current situation and your reason for seeking a divorce. If you’re being physically and emotionally abused by your partner, it may be possible to be granted a divorce more quickly. However, you have to prove these grounds in court, which requires convincing circumstantial evidence.

If, on the other hand, your only reason for seeking a divorce is some disagreement between you and your spouse, the one-year period must be fulfilled. Sometimes it is possible for the two of you to live under the same roof but be considered to be living separately for the purposes of divorce. Talk to your family lawyer for any questions regarding the Divorce Act.

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What are my chances of getting a divorce if my child support or custody has not been settled yet?

The court is usually reluctant to grant a divorce where the spouses have not yet devised a plan of support and parenting for the children, as this runs contrary to their interests.

In such cases, the court will adjourn the proceedings to give the spouses time to make reasonable arrangements for their child(ren)’s care.

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What can I do if I’m not happy with the court’s decision?

If you‘re not satisfied with the court’s judgment or believe it’s made a mistake, you can file an appeal to request a new hearing or change of order. Speak to a family lawyer about your chances of success and the deadline for making such an appeal.

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What is the difference between custody and access?

Custody is about the legal guardianship of a child, whereas access is about how much time a child spends with each parent. The access agreement can vary greatly. In some cases, children live mainly with one parent and visit the other regularly. In others, children divide their time equally between the parents’ homes.

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Can a spouse refuse access if child support is not paid in its entirety? What happens if my ex defaults on his support payments?

No, the custodial parent (or parent with the primary physical residency of the child) has no right to deny or limit the rights of the other parent.

When a court orders child support, it is automatically filed with the Family Responsibility Office (FRO). They then contact the parties and collect the support payment from the paying parent to administer to the recipient.

If there is no order and instead only a separation agreement, then the parties can file the agreement with the court who then forwards it to the FRO.

If the paying parent starts defaulting on their payments, the FRO has the right under the Family Responsibility and Support Arrears Enforcement Act, 1996, to:

  • (1) seize bank accounts;
  • (2) garnish wages;
  • (3) cancel income tax returns and GST/HST rebates;
  • (4) cancel passports and other federal licenses;
  • (5) suspend their driving license;
  • (6) garnish 50% of Employment Insurance, CPP, OAS, and other periodic federal payments.

 

If the FRO fails to enforce the support payments and the paying parent recurrently defaults, the last option would be to charge them in contempt of the orders pursuant to s. 49(1) of the Family Law Act. This may result in either a fine or a term of imprisonment.

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Can my separation be resolved without going to court?

Yes, it can. It is not mandatory for you and your spouse to go to court to finalize the terms of your separation.  Other options include mediation, lawyer-based negotiations, and collaborative family law. These can be of great help to allow the involved parties to reach an amicable agreement.

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If I am separating, what will happen to our house?

Every case is different, so this depends on the unique circumstances of your case. Generally, marital or common-law spouses have to consent if they wish to sell their property or transfer it to someone else.

Unless you have an explicit court order allowing you to go ahead with the sale of the property, you cannot do it without the consent of your partner. Remember, ownership isn’t the sole deciding factor when it comes to who gets to keep or sell the property.

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Will I get more assets if my spouse cheated on me?

The conduct of one spouse that isn’t related to the property in question, such as cruelty or cheating, doesn’t entitle the other spouse to a bigger share of the property’s net worth. Indeed, the reasons for the dissolution of a marriage and the conduct of either partner during the marriage aren’t relevant when it comes to division of property. Canada’s no fault divorce system means the court cannot take conduct into account when making decisions regarding child custody, separation, support and divorce.

However, if either partner acted unconscionably in terms of any assets then, under section 5(6) of the Family Law Act, the court has the discretion to vary the equalization of payment. For instance, if one partner deliberately lied, recklessly incurred debts or depleted any assets prior to the separation, or lied about their liabilities or debts at the time of the marriage. This is because the equal division of assets in such instances would also be considered unconscionable. This must, however, relate to at least one of the examples listed in the section or the circumstance.

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What is the difference between an uncontested and a contested divorce?

The term ‘uncontested divorce’ is used when both parties agree on the issues raised by the divorce. In this case, the divorce process can be completed without requiring the spouses to appear in court.

On the other hand, when spouses disagree on one or more issues, this is a ‘contested’ divorce. Some of the most common issues that arise during divorce procedures resulting in disagreements are child custody and access, equalization of property, and spousal/child support. In these types of divorce, both spouses need to file documents with the court stating their positions on the issues. If the parties are unable to settle the issues before going to trial, they will receive a final order on the issues and the judge will grant a divorce.

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How does the court determine child custody?

When couples with children file for divorce, the court will examine what is in the best interest of the child and determine custody based on this. They begin by reviewing the role of each parent. If one has played the role of a primary caregiver, custody is typically granted to them. In instances where both parents have been equal caregivers, the court may order joint parenting. This is only possible when both parents are cooperating and communicating. If they aren’t then the court won’t order joint parenting.

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How is child support determined?

In any divorce case, child support is based on the Federal Child Support Guidelines and determined by the spouses’ annual income. Typically, the parent with the primary residence of the children or the custodial parent receives child support payments from the access parent.

If both partners are living in the same residence as the children, then a different arrangement has to be set up. In such cases, the calculations related to child support become more complicated.

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If both partners share custody, does either have to pay child support?

Yes. Even if you share custody with your partner after the divorce, child support will be applicable. However, the amount you have to pay will depend on how much time your child spends with you. For instance, if your child spends 30% of their time with you and 70% of their time with your former partner, the amount that the parent has to pay will differ. Furthermore, under the Federal Child Support Guidelines, all the associated costs of the shared custody will be taken into account along with the circumstances, means, and requirements of both parents.

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If I have a common-law partner, will the same child support apply to me as it does for others?

Yes. Child support obligations in Ontario have to be borne by all parents, including common-law spouses and marital spouses. It’s also applicable to non-biological parents like stepfathers and stepmothers, but the factors may vary based on the situation.

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Will the child support either of us has to pay be taxable?

No, child support isn’t taxable. Any parent who has to pay child support cannot deduct the payment for child support from their income. Also, the parent receiving child support doesn’t have to claim the support received in their overall income. In fact, child support is tax-free.

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How is spousal support determined?

Compared to child support, spousal support is often quite complicated to calculate, but it’s only applicable if one partner is deemed eligible.

Since every divorce case is unique, the spousal support is determined depending on the case. However, one common factor taken into account is the income of both parties which makes it easier to calculate how much the partner should receive.

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How long does either partner have to pay spousal support?

This completely depends on the circumstances surrounding your case. Once it’s determined that one spouse is entitled to receive spousal support, there are various factors taken into consideration to determine the length of the support. These factors may include but aren’t limited to how long the partners were in the relationship, how old both partners are, and whether or not there are any children involved.

Keep in mind that there are various other nuances that also need to be taken into account. These include any of the separating parties’ diminished capacity to earn a living. This may include one of the partners being unable to work due to justifiable reasons or being close to retirement.

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Is spousal support taxable?

Yes. Periodic or ongoing spousal support payments are taxable as income to the individual receiving them. And they are tax deductible for the individual who has to pay. However, if the spousal support is paid at once, it’s neither deductible for the payee nor taxable for the recipient.

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What is financial disclosure?

It’s important that both partners disclose to one another information related to their income, debts and assets. Commonly referred to as financial disclosure, this can help lawyers provide you with the right legal advice when it comes to property issues, spousal support and child support. If one spouse doesn’t completely disclose their assets, then you may receive a settlement that is much less than what you would have otherwise.

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Who decides how our property will be divided?

For starters, you and your partner may decide how your property is divided and add that into an agreement. You can create an agreement with the help of your lawyers, independently, or through mediation.

Another way is to let an arbitrator decide how to divide the property based on either the provisions in the Family Law Act or you and your spouse’s wishes.

Alternatively, you can let the court decide if you and your partner are having trouble reaching an agreement through arbitration or mediation. In these cases, the courts either enforce the Family Law Act provisions or defer to an agreement between the partners.