Family Law

What is a legal separation?

The question of whether a marital separation has occurred, as a matter of law, depends on the specific circumstances of a family’s situation.

In certain situations, spouses may be considered to be living separate and apart, even if they continue to reside in one home, under the same roof. Such a separation may have occurred, as a matter of law, where conjugal relations have ceased, the parties live largely separate lives and routines, and the spouses have clearly determined that their relationship has come to an end.

Where at least one of the parties no longer resides in the former matrimonial home, separation of the parties is more plainly evident.

There is no specific legal document required in Ontario to evidence or formalize a marital separation. A Separation Agreement may be concluded some time after the parties’ actual marital separation. The absence of such an agreement in the interim does not prejudice or change the parties’ status as “separated” from each other.

The determination of the actual date of separation may be of importance in establishing the property entitlements of the spouses. It is also important in determining the date upon which a divorce judgment may be lawfully finalized. A Divorce Judgment may issue in Canada one year following the date of the parties’ separation.

It is strongly advised that spouses who are considering separation or already separated consult with a qualified Family Law lawyer at an early stage. By speaking to legal counsel, it will be possible to become more fully informed as to the legal consequences of decisions or actions which are being considered. In an initial consultation at Wise Law Office, you will receive a complete, general orientation as to the legal, practical and personal implications of your specific family’s circumstances.

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Custody, Joint Custody and Access

Sole Custody

One of the most important and difficult decisions to be made at the time of separation involves the determination of the residency and legal custody of children of a marriage. Ontario law provides that custody matters are to be determined at all times with reference to the best interests of the children.

Section 24 of the Children’s Law Reform Act provides that the merits of a custody or access application are to be determined on the basis of the best interests of the child. The Act mandates that in determining the best interests of a child, a Court shall have regard to all the needs and circumstances of the child, including:

(A) The love, affection and emotional ties between the child and his or her parent or other person claiming custody;
(B) The views and preferences of the child where such views and preferences can be ascertained;
(C) The length of time the child has lived in a stable home environment;
(D) The ability and willingness of each party applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
(E) Any plans proposed for the care and upbringing of the child;
(F) The permanence and stability of the family unit with which it is proposed that the child will live; and
(G) The relationship between the child and each person who is a party to the Application.

Generally speaking, as a child becomes older, his or her views will have a more significant influence on the outcome of a custody Application. The views of pre-school or primary grade children will typically be less influential to a Court than the stated preferences of pre-teens and teenagers.

Where a dispute is present as to the custody of children, family law custody assessments are often conducted by psychologists, psychiatrists or social workers who are retained by either or both of the parties to provide recommendations to the Court as to the best interests of the children, their residency, and their custody. In their investigations, assessors will typically speak with the parties, grandparents, children of the family, extended families, educator, physicians, and other important people, to help them reach their conclusions.

Joint Custody

An increasing number of separating families consider joint custody arrangements in an effort to provide for the welfare and best interests of their children. A wide range of residential arrangements, tailored to the specific needs and routines of the particular family, can be considered in joint custody negotiations, and formalized in joint custody agreements.

Joint Custody does not necessarily require that children spend equal residential time with each of their parents. While there are many circumstances in which such residential time is equally shared, many other joint custody arrangements provide for primary residence with one parent and secondary residence on weekends and holidays with the other.

What is consistent in almost all joint custody arrangements is the commitment of parents to work cooperatively and jointly, even though they are separated, to make decisions for the benefit of their children.

In joint custody circumstances, parents seek to establish an environment which encourages children to have strengthened, comfortable and consistent relationships with both of their parents.

Ontario Courts have consistently hesitated to make joint custody Orders where it does not appear that the parties can adequately cooperate and work together for the benefit of their children. This trend, however, is softening over time. many jurisdictions currently have laws that mandate joint custody, unless such an arrangement would not be in the best interests of the children involved.

In Ontario, however, most joint custodial arrangements are achieved by way of agreement between the parties, rather than Court Order, although Courts do at times make Orders for joint custody, despite opposition from one parent (or both), where circumstances are deemed to warrant it.

Access and Visitation

Where a sole custody Order is made, a child will typically have primarily residence with his or her custodial parent.

Non-custodial parents and their children, however, remain entitled to ongoing, generous contact, including (where appropriate) overnight, weekend, religious holiday, birthday and extended summer vacation access. Legal advice should be obtained to determine the specific access arrangement which is appropriate and reasonable in a given situation.

Parents who are entitled to access are also entitled to be kept fully informed by doctors, dentists, teachers and schools as to medical and educational issues relating to their children.

Access parents are also entitled to have input into important decisions affecting the educational, physical, religious, social, and moral development of their children. Typically, however, where one parent has sole custody of a child, that parent is entitled to make final decisions regarding such matters, unless a Court orders otherwise.

In certain, unusual circumstances, where unsupervised access might pose a genuine hazard to the well-being of a child, consideration will be given by a Court to imposing supervision requirements upon access visits. Supervision may be conducted by grandparents, mutually agreeable relatives or family friends, or at Access Supervision Centers.

The child’s right to access is a paramount entitlement. Increasingly, Courts are imposing sanctions upon custodial parents who interfere with or otherwise impede access.

Once an access agreement has been concluded 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. It is essential that legal representation be obtained in order to seek enforcement or variation of an access Order.

Grandparents and other family members are also entitled to bring an Application to have access with children, in cases of unwarranted estrangement. While the entitlement to such access depends on the specific circumstances of the family, Ontario Courts do generally lean toward the belief that it is best for children to maintain their extended family relationships to the greatest extent possible. Grandparents and extended families often provide much-needed stability, continuity and security to children at times when their worlds are rapidly changing.

Other Child Residency Arrangements

Many separating parents prefer to avoid reference to terms like custody and access in their Parenting Agreements.

Increasingly, such families opt for Shared Parenting arrangements or Joint Parenting Plans. Such agreements set out detailed residential schedules of the children, the specific rights, duties, and obligations of each of the parents, establish decision making processes, and provide for dispute resolution processes to be utilized, including mediation, in the event that a dispute arises with respect to the children.

Family Law Mediation provides a forum within which parties can adopt a less adversarial approach to the resolution of important issues affecting the well-being of their children.

While parties can reach agreement through mediation, they are required to have their own independent lawyers, and to obtain thorough legal advice as to any proposed parenting agreement prior to executing any final settlement documentation.

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Child Support

Pursuant to the Divorce Act and the Family Law Act, the amount of basic child support payable upon separation or divorce is now determined exclusively with reference to legislated Child Support Guidelines.

The Guidelines came into force on May 1, 1997. Examples of the required, basic Guideline support are reproduced below. The Guidelines determine the amount of basic child support payable by a parent with reference to only two considerations – the income of the support payor and the number of children in the family who are entitled to support.

Examples for Ontario from The Federal Child Support Guideline Tables

The Complete Child Support Guidelines and Legislation may be found at the Department of Justice Child Support Guidelines Homepage

Child Support payments pursuant to this system are not taxable or included in the income of the recipient, nor may they be deducted from the income of the support payor.

Extraordinary Expenses – Section 7 of the Guidelines

In addition to the basic Guideline Support payments, further support may be required in payment of special or extraordinary expenses incurred on behalf of a child.

The expenses typically qualifying as “special or extraordinary” include orthodontic and dental expenses, daycare or child care costs, tutoring or other special educational expenses, and necessary expenses related to a child’s special needs or skills. Ordinary expenses for children’s typical activities are not generally considered as “special or extraordinary,” but circumstances do vary, and it is important to obtain legal advice regarding the entitlements and obligations in any given case.

Pursuant to amendments to the Guidelines legislation that came into effect in May, 2006, Courts were granted much increased flexibility in determining whether certain extraordinary expenses will require additional financial contribution by a support payor.

The amendments to the Guidelines will affect claims for contribution by a payor to extraordinary expenses for:

primary or secondary school education or for any other educational programs that meet the child’s particular needs, and
extraordinary expenses for extracurricular activities.

A custodial parent requesting such contribution must demonstrate that the requested extraordinary expense cannot reasonably be covered by the basic support payable.

This “reasonable coverage” requirement may well impose a new threshold or test for determining whether additional contribution to an expense is required.

At the very least, the Courts are to be given a widened discretion by this amendment.

While this may be seen as codifying a discretion that has to some extent already been exercised, it does open up a significant statutory front for resistance by payors to claims for contribution toward the specified extraordinary expenses.

These amendments do not affect the requirement of contribution for day care and child care expenses, medical and dental expenses, or the costs of post secondary education. These expenses will continue to be assessed, taking into account:

the necessity of the expense in relation to the child’s best interests
the reasonableness of the expense in relation to the means of the spouses and those of the child, and
the family’s spending pattern prior to the separation.

The Guidelines are strictly followed by the Courts in all but a few, very unusual cases involving genuine financial hardship or extreme inequity.

Consult with a lawyer to determine the actual support obligations applicable in each individual circumstance. Legal advice may also be necessary to assist in calculating the income of a payor and to ensure that complete financial disclosure is made by a payor.

In Loco-Parentis: When might Step-Parents be required to pay Child Support

Blended families are increasingly common for Canadian children.

In certain circumstances, upon a subsequent separation, adults in such families who have acted in the role or stead of a parent may have a legal obligation to contribute toward the support of their non-biological children of such blended relationships.

Whether a person has stood in loco parentis, or in the place of a parent, is a factual question determined by the courts based on the individual circumstances of such families.

In Chartier v. Chartier, the Supreme Court of Canada stated that “the nature of the relationship” between step-child and step-parent must be determined in light of the particular familial circumstances, to asses whether the step-parent meets the threshold of loco parentis.

Some of the factors the court may take into consideration in determining whether the step-parent meets the threshold of standing in the place of a parent include:

• the duration and nature of the step-parenting relationship
• step-parent’s involvement in the child’s day-to-day life, discipline, extra-curricular activities, and schooling
• the step- parent’s financial contribution to the child
• the child’s participation in the step-parents extended family’s activities;
• the relationship between the step-child and step-parent after separation.
• how the child referred to the step-parent;
• another biological parent’s involvement in the step-child’s life;
• any discussion relating to the possible adoption of the child

Where a step-parent is found to have an obligation to pay child support, the amount payable is determined with reference to the Child Support Guidelines. Children may be entitled to full Guideline support from more than one parent. The child support payable by a step-parent will not be reduced on the basis that additional support is received or payable by another parent for the same child.

Where there are multiple support payors, however, special expense claims under section 7 of the Guidelines are properly shared and apportioned, proportionately, between the support recipient and all such payors.

The Family Responsibility Office

The Family Responsibility Office (F.R.O.) is an office of the Ontario Government charged with the duty of receiving support payments and paying them, in turn, to the intended recipient. F.R.O also takes steps to enforce support orders and to secure payment of outstanding arrears.

Where a new or amended support order is made in Ontario, the Court will also automatically make a Support Deduction Order, which requires that the F.R.O collect all support moneys payable by wage deduction or garnishment from the payor’s employer.

This system functions much like other payroll deductions for income taxes and benefits. Employers who fail to comply are subject to legal sanctions.

Where arrears of support have accrued, the recipient may request that the F.R.O. take steps to enforce. These enforcement actions can be very forceful in extreme cases of default, and can include driver’s license suspensions, garnishment of income tax refunds, derogatory notations on the payor’s credit record, default proceedings against the payor in Family Court, and even incarceration.

The F.R.O. cannot change or suspend a support Order, even in times of hardship. F.R.O. solely enforces support Orders. Only the Court can change the amount of support payable. I

f arrears of support have accrued due to a change in the payor’s circumstances, such as illness or unemployment, it is essential that legal advice be obtained, and consideration be given to immediately pursuing a court action to vary the existing Court Order. Unless the Court changes a support Order, F.R.O. will be required to continue enforcement and collection.

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Spousal Support and Canada’s proposed Spousal Support Guidelines

Every spouse has an obligation to provide support for himself or herself and for the other spouse, in accordance with need, to the extent that he or she is capable of doing so, pursuant to s. 30 of the Ontario Family Law Act. Section 15 of the federal Divorce Act also provides for the payment of reasonable support, where circumstances warrant, by one spouse to the other.

Upon breakdown of marriage, a spouse may apply for an Order for support. There are many circumstances relevant to determining a spouse’s entitlement to spousal support, including:

the duration of the marriage;
any economic disadvantage, hardship or financial consequences experienced by a spouse as a consequence of the marriage or the breakdown of the marriage;
the degree to which a support order will promote the economic self-sufficiency of each spouse within a reasonable period of time.

Spousal support payments made pursuant to a Court Order or written Agreement must be included in the taxable income of the recipient and are subject to Income Tax.

Spousal support payments may be deducted from the taxable income of the payor. This contrasts with the tax treatment of Child Support payments under the Child Support Guideline regime. Such child support payments are neither taxable nor deductible.

Orders and agreements which provide for spousal support may be subject to a variation where a party experiences a significant, or material change in his or her financial circumstances. As an example, spousal support payments are often reduced or suspended upon retirement of the payor or achievement of economic self sufficiency by the recipient.

Legal advice should be obtained to determine:

whether there is an entitlement to spousal support;
the amount of support payable;
the duration such support shall be payable;
whether there are sufficient changes in circumstances to justify a variation of an existing spousal support Order or Agreement.

Canada’s new Spousal Support Guideline Proposal

A new Federal Government proposal calls for a radical change in the way Canadian Spousal Support awards are to be determined.

The Spousal Support Advisory Guidelines Proposal, released in January 2005, attempts to bring much-needed predictability and certainty to the Courts’ determination of spousal support entitlement, quantum and duration.

Two different formulas are suggested – one for families with dependent children, and a different approach for those without dependent children, as will be explained below.

Guidelines are advisory – not mandatory

Under the Guideline proposal, where there are no dependent children, spousal support is to be calculated at 1.5% to 2% per year of marriage of the difference between the parties’ gross incomes to a maximum of 50% for marriages of 25 years duration or longer.

To determine what support, within this range, is appropriate and how long it is to be payable, Courts will consider a number of factors.

These include the duration of the marriage, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support, a spouse’s contribution to the enhancement of the other spouse’s earning potential, any illness or disability, any imbalance in responsibility for the family’s debts, and legal obligations to support other dependents.

Spousal support is to be payable for .5 to 1 year of support for each year of marriage. Support to terminate at this cut-off date.

Support to be indefinite (no end date) for marriages over 20 years, or under the “Rule of 65,” where the total of the recipient’s age and the years of marriage exceed 65.

Families with Dependent Children

Where children continue to be supported after a separation, the starting-point for calculation is each spouse’s individual’s net disposal income (INDI), or the amount remaining after payment or receipt of child support, income taxes and other allowable deductions.

A support order is to be made which provides between 40% and 46% of the two parties’ combined INDI to the recipient spouse.

To determine what support, within this range, is appropriate and how long it should be payable, Courts will consider a number of factors, including the duration of the marriage, decisions made within the family to meet the children’s needs which affected the recipient’s earnings and income-generating potential, the children’s’ ages and needs, whether it is appropriate to compensate a spouse for negative economic consequences from the marriage, the need for financial support and the ability to pay support, the parties’ standard of living prior to separation, a spouse’s contribution to the enhancement of the other spouse’s earning potential, any illness or disability, any imbalance in responsibility for the family’s debts, and legal obligations to support other dependents.

For shorter marriages of under ten years, support will terminate, at latest, when the last child of the family completes high school.

For long-term marriages of 20 years duration or less, it is proposed that support be payable up to one year for each year of marriage, or until the last child of the family completes high school, whichever is longer.

Support is to be payable indefinitely for marriages over 20 years, or under the “Rule of 65,” where the total of the recipient’s age and the years of marriage exceed 65.

Summary

The proposed guidelines may represent a small step forward in regularizing spousal support awards in Canada, but certainly do not eliminate all uncertainty or the ongoing discretion of judges in deciding this issue.

Unlike the Child Support Guidelines, which provide a specific table amount for a child support Order based on the payor’s income, number of children and Province of residence, the proposed spousal support changes will do little to provide complete predictability as to the amount of support to be paid and the duration of payment.

Having said that, the consistent application of a specified formula will, over time, probably reduce the disparity between court awards in similar circumstances, and narrow the guesswork currently involved in anticipating likely outcomes in Applications for spousal support.

Will Judges use the Guidelines? Time will tell, but if the Child Support Guideline experience of the mid 90’s can provide any historical reference, our anticipation is that over time, Judges will increasingly refer to, clarify and adopt to overriding principles

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Separation Agreements and other Domestic Agreements

Separation Agreements are formal, legal documents setting out final or temporary (interim) agreement by the parties as to all legal issues arising from their separation, including arrangements relating to children, financial support, settlement of the spouses’ property claims, and possession of the parties’ matrimonial home.

Final separation agreement also typically include additional provisions whereby the parties agree that they will not advance further claims against each other in the future, with the exception of issues specifically referred to in the agreement as being subject to change or variation in the future.

A Separation Agreement may be concluded some time after the parties’ actual marital separation. The absence of such an agreement in the interim does not change the parties’ status as “separated” from each other.

Separation Agreements are generally concluded after complete financial disclosure regarding income, assets and liabilities has been made by both spouses. To make such financial disclosure, each spouse provides a sworn Financial Statement, as well as copies of relevant documents including income tax returns, bank statements, and statements setting out debts and investments.

Upon final settlement of all issues, the agreement between the spouses will be reflected in a Separation Agreement that can be finalized after each spouse has received independent legal advice from his or her own lawyer.

Other domestic agreements may be entered into at the time of marriage or cohabitation. Marriage Contracts and Cohabitation Agreements consider, in advance, how the parties wish to govern their affairs in the event of a relationship breakdown.

A typical Marriage Agreement or Cohabitation Contract will, in the event of a breakdown of the relationship or marriage, provide for:

• how the parties’ property is to be divided;
• whether spousal support is ever to be payable;
• how jointly purchased or owned assets are to be divided;
• special credit either party may receive for specific financial contributions to major assets, like a family home
• how a matrimonial home will be treated – e.g. – Will it be sold or held? How will then proceeds be divided?
• clarification as to the exclusion of specific assets from division, such as inherited property, trust funds and assets, or interests in family trusts.
• in a remarriage, clarification of a new partners’ legal status with respect to children of previous relationships or marriages who will reside with the new partner;
• other specific personal or financial issues of importance to the parties.

All parties must have independent legal counsel when completing any domestic agreement. As well, each party will typically be required to provide complete financial disclosure to the other, to ensure the solidity of the agreement, and to ensure complete fairness.

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Finalizing An Uncontested Divorce

A divorce in Canada may be completed on the grounds of marital breakdown one year following the date of a couple’s separation. While a divorce proceeding can be commenced in Ontario Superior Court prior to this date, the Divorce itself may not be finalized until one year has passed.

A divorce may be obtained earlier than the one-year anniversary of separation only on the basis of limited, specific grounds, set out at Section 8(3)(b) of the Divorce Act, as follows:

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses

Pursuant to Section 3(1) of the Divorce Act, a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

Where a Divorce Application is combined with claims for other relief (for example, custody, support or property claims), a Divorce may still be granted after one year of separation, even if the other claims are not yet resolved. In that case, a Divorce Judgment may be issued, and the remaining issues will thereafter be continued in in a corollary relief proceeding.

Where all property, support and child-related claims are resolved by way of Court Order or Separation Agreement, a uncontested divorce may be finalized in Ontario through a reasonably simple process that usually does not require a Court appearance by either party.

Stages of an Uncontested Divorce

Completion of an uncontested Divorce in Ontario typically involves these stages:

1. Issuance of a Divorce Application at an Ontario Superior Court branch in the province;
2. Service of the Application for Divorce upon a spouse (however, if a joint application is issued, service is not required);
3. If service is required, a period of thirty (30) days following service must elapse, without delivery of an Answer (or formal reply) by the spouse. Where the spouse lives outside Ontario, the period for response is extended to sixty (60) days;
4. Upon the expiration of the twenty-day period following service, a Divorce may be finalized with the filing a Motion for Divorce with the Court. The documentary materials required include a draft Divorce Judgment, affidavit materials, sworn or affirmed, and signed by the person seeking the Divorce, and pre-addressed, stamped envelopes for ultimate delivery to the parties (or their lawyers) of the Divorce Judgment;
5. An original Marriage Certificate must also be filed with the Court at or prior to this stage. For those married in Ontario, a copy of a Marriage Certificate may be obtained online or in person at any Ontario Registrar-General’s office;
6. Once all documents have been filed with the Court, they are ultimately read by a Judge, who determines whether a Divorce may issue, based on these documents. The time for completion of this step is typically 45 to 60 days, but timeframes can vary from a few weeks to several months, depending on the Court location and time of year;
7. Once a Divorce Judgment has been signed by a Judge, it is returned to the Court office for processing, microfiching, and ultimately, delivery by mail to the parties;
8. Divorce Judgments typically take effect thirty days following the date of a Judge’s signature, although this time-frame may be shortened in urgent situations, such as pending remarriage, on special application by the party seeking the divorce;
9. Once the Divorce has formally taken effect, the Court will, on further request, issue a final, sealed document, known as a Certificate of Divorce, which certifies that the Divorce is final and effective. In Ontario, a Certificate of Divorce must be presented for the purpose of remarriage.

Other Issues – Uncontested Divorce

• Where there is a child or children of the marriage, the Judge reviewing the Divorce motion materials is legally required to satisfy himself or herself that adequate arrangement has been made between the spouses for the support of the child. If a Judge has concerns about whether such provision has been made, the Divorce Judgment may not be granted until further, satisfactory explanation is provided.
• Property claims between spouses may not be commenced more than two years following the date a Divorce Judgment is granted. As a result, the issuance of the Divorce Judgment also “starts the clock” on this two year limitation period. Following the expiration of this limitation period, marital property claims are forever statute-barred and cannot be reopened or pursued. It is essential that any such claims be pursued by way of Court Application before the two-year period has lapsed, to prevent the expiration of the limitation period.
• Where a Marriage Certificate from another country is not in English or French, a certified translation will be required by the court before the Divorce can be completed.

Court Fees – Uncontested Divorces

The following fees are payable for disbursements in uncontested Divorce Applications:

Additional, out-of-pocket costs may be incurred for service of the Application for Divorce, obtaining Marriage Certificates, and filing and requisitioning documents at the Court offices.

Legal Fees in Uncontested Divorces

Where an Application for Divorce is wholly undefended and no complications arise, the estimated cost of obtaining an uncontested Divorce at Wise Law Office is approximately $1,700.00, inclusive of legal fees, court fees and disbursements (plus applicable taxes).

Legal fees associated with obtaining an Uncontested Divorce vary, however, based on the complexity of each circumstance and the services involved in completion of the matter. As examples, additional fees and disbursements may be incurred in uncontested Divorces due to:

• complications arising in regard to service of documents;
• complications arising due to administrative or other issues at Court offices;
• additional services required due to issues presented by the responding spouse or his or her counsel, requiring action, negotiation, correspondence. meetings or communications;
• correspondence and communications beyond typical reporting, as may be required in completion of the divorce;
• additional services as may be required where grounds for divorce, other than separation for a period in excess of one year, are alleged;
• steps taken to expedite finalization of a Divorce in urgent circumstances
• other steps as may be required due to complications not ordinarily encountered in completion of uncontested divorces.

In such circumstances, additional fees based on our hourly rates for services rendered will be applicable.

To discuss the steps required in your circumstances, contact us by telephone at (416) 972-1800 or by email for an initial telephone consultation without fee or obligation.

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The Information on this page is © 2007-2015, Garry J. Wise and Wise Law Office. It is intended for information purposes only and may not be reproduced without written consent. It is not a substitute for legal advice and may not be relied on as such. The reader is expressly advised and cautioned to consult with a qualified Lawyer for information and advice regarding the reader’s specific circumstances.