Our firm offers new clients a free one hour consultation for most family related matters.
Helsons LLP is a leading Family Law Firm in Halton Hills with seven lawyers offering services in family law. The firm handles sophisticated and difficult family law matters from property, trusts and support issues to international child mobility. Our first priority is to explore the possibility of settlement satisfactory to all parties in light of the expense of litigation . The lawyers in the firm have significant experience in negotiating complicated Marriage Contracts, Cohabitation Agreements and Separation Agreements. Lawyers of the firm have extensive experience in litigation of family law disputes including issues related to Divorce, Custody, Child and Spousal Support, Pensions, Trusts, and Taxation.
With a combined 50 years of experience the firm has become a leader in Family Law matters with the majority of our clients coming from recommendations from former matrimonial clients. Individuals who are about to be Married or Separated should seek the advice of a lawyer in order to ascertain their rights under the law.
On this website we have tried to inform you of some of the basics on Family Law. It should not be considered a full treatment of the topics. Please bear in mind that Family Law at times can be complicated. There are many pitfalls in this area. You can take steps that unknowingly jeopardize your rights and may affect you for the rest of your life.
Please talk to us before you take any major steps toward Marriage or Separation.
Domestic AgreementsThe Family Law Act authorizes agreements between spouses. These contracts are binding on both parties. The contracts that bind you to whatever you have agreed are:
- A Cohabitation Agreement
- A Marriage Contract
- A Separation Agreement
Cohabitation Agreement/Marriage Contract
If you and your spouse want to make arrangements for sharing property or spousal support in case your relationship ends, you can make a Cohabitation Agreement if you are living together common-law or a Marriage Contract if you are legally married. These contracts contain clauses that both parties agree. They typically deal with issues of property division and spousal support, but can also deal with a myriad of other issues that may be specific to your relationship. These contracts take precedent over the rights and obligations described in the Family Law Act or the Divorce Act. There are some issues a Cohabitation or Marriage contract can not legally determine. They can not bind you in regard to custody or access to the children. That is determined at the time of Separation as whatever is best for the children. They also can not set child support based on any amount other than the Guidelines.
A Separation Agreement is an Agreement between spouses designed after separation. The Separation Agreement is designed to handle all aspects of going your separate ways, including child and spousal support, custody and access, division of property and any other issues that may be specific to your relationship. A typical Separation Agreement will deal with all issues making it unnecessary to seek the assistance of a Judge in the Courts.
Custody & Access
Custody is the right to make important decisions about how to care for and raise a child. These decisions may involve where the child goes to school, the child’s religion, where the child will live the child’s health care decisions and what activities the child is involved with such as sports music lessons etc.
Custody is not about which parent the child lives with or how much time the child spends with each parent. It is about decision-making. Even if only one parent has sole custody the child might live equal time with each parent.
Joint custody is where both parents must agree on the important decisions relating to a child. If parents have a Joint custody situation and they can’t agree on an important decision then the courts would decide what is in the best interest of the child.
Shared Custody/Split Custody
Shared custody is a term used when each parent has the child or children living with them at least 40% of the time. Split custody is a term used when there is more than one child with at least one child living with each of the parents. Shared custody and split custody are terms used in the Child Support Guidelines to refer to the amount of time a child spends with each parent. They are not related to sole custody and joint custody which only refer to the right to make decisions about the child.
When a child lives mainly with one parent who has sole custody, the child and the other parent usually have the right to spend time together. This is called access. Times for access can vary depending on the parents schedule and the best interest of the child.
A typical access schedule would be every other weekend and one evening per week. If parents cannot agree on an access schedule then the court will decide what is in the best interest of the child.
Access to a child does not have to be for a parent. It can be a grandparent, stepparent or other relative provided they have a close relationship with the child. The overriding consideration in all access matters when taken to court is the best interests of the child.
The courts order no access in only the most extreme cases where a parent has been proven to have seriously neglected or abused the child and where the child’s safety cannot be protected. Supervised access can be ordered in cases where there is a drinking or drug problem or other factors that might affect the safety of the child if left alone with the access parent.
Whether the access parent pays child support or not will not effect access. That is because accessto a parent is the child’s right. The courts make an automatic assumption that access to both parents is in the best interest of the child. The parent wishing to restrict the other parent’s access must prove the restriction is in the best interest of the child. Money is not a factor in determining what is in the best interests of the child.
Advice: If you are about to separate from your spouse and you decide to leave your children with your spouse in the matrimonial home you are jeopardizing any future claim for custody of the children. Come and speak to us before you separate.
Child support can be determined in a separation agreement or court order. The parent the child lives with most of the time (60% at least) normally has to pay the expenses of raising the child. The other parent must help with those expenses by paying child support. Every parent has a legal duty to support their dependent children to the extent they can.
The amount of support is determined by the Child Support Guidelines. Courts vary from the Child Support Guidelines only in very unusual circumstances. Parents who reach an out-of-court agreement about child support do not have to apply the Guidelines. But if the court is later asked to consider the amount of support a judge will very likely change the support back to the Guidelines unless the parents have a very good reason for not following the Guidelines.
Child support is based on the child’s right to be supported under the Guidelines. For the most part, parents have no right to opt out of this duty to pay under the Guidelines, even if both parties agree.
The Guidelines determine the support based on the payor parent’s gross income. The receiving parent’s income has no effect on Guideline child support. The amount of child support is fixed under the Guidelines based on the payor’s gross annual income. For example, if a payor parent’s income is $50,000.00 he or she would pay $450.00 per month for support of one child or $743.00 for two children. The Child Support Guidelines table calculator is found at http://www.justice.gc.ca/eng/fl-df/child-enfant/look-rech.asp
Shared Custody Child Support
In a shared custody arrangement normally you look to the Child Support Guidelines and figure out the Table amount for each parent based on their gross income as if the other parent had full custody and subtract the smaller amount from the larger amount. The remaining amount is called the set-off. The parent with the higher income would pay the parent with the lower income the set-off amount. The “set-off” amount can be adjusted depending on who is paying for clothing school supplies etc. for the children.
Split Custody Child Support
In a split custody arrangement each parent has to pay support according to the Guidelines for any children living with the other parent. The parent who has to pay the higher amount must pay the difference to the other parent. This amount is not normally adjusted.
The Child Support Guideline amount establishes the child support for ordinary children’s expenses such as food, clothing and housing. Extraordinary or Special expenses are not covered by the Table Guidelines. Extraordinary expenses are paid in addition to the table amounts. Examples of extraordinary expenses would be: day care, medical or dental expenses, educational programs, post secondary education costs, extracurricular activities such as sports or music lessons etc. These expenses in order to qualify as an “extraordinary expense” need to be necessary for the child’s best interests and reasonable. If the expenses are necessary and reasonable, the parents usually share it in proportion to their gross incomes. If the child is able to make a contribution toward their own extraordinary expenses, it will be deducted before the expense is divided between the parents.
Both married and unmarried spouses may be able to receive spousal support or may have to pay spousal support. In order to qualify for spousal support common-law spouses must have lived together as a couple for at least three years or for any length of time if they have a child together. There are no such qualifications if you are married.
There are many reasons for spousal support:
- Recognizing spouses contributions to the relationship.
- Sharing the financial costs of caring for a child.
- To relieve financial hardship.
- To help a spouse become able to contribute to their own support.
- To correct any economic advantage or disadvantage to a spouse.
Under the Family Law Act each spouse has a duty to support themselves to the best of their ability.
How Spousal Support is Determined
Spousal support can be negotiated and agreed upon by both spouses in a written separation agreement. If the parties cannot agree then a judge may decide. If the judge decides there should be spousal support he/she will take into account the following:
- Whether there are children and what arrangements have been made for them,
- The length of the relationship,
- The roles the spouses play during the relationship,
- The age of each spouse, and
- Each spouse’s financial situation.
The judge will also consider the Spousal Support Advisory Guidelines. The Guidelines give a range of spousal support from low , middle and high. The Guidelines take many things into account and are quite complicated. We will supply you with the spousal support advisory guidelines calculations with your free consultation. Consult us to be sure you have considered everything and fully understand your spousal support rights or obligations.
Monthly spousal support is taxable for the spouse receiving the support and tax-deductible for the spouse paying the support. Child support is not tax deductible. Lump sum spousal support is not taxable for the recipient and the payor cannot claim it as a tax deduction.
Family Responsibility Office (FRO)
The provincial government operates the FRO. The courts automatically file all support orders with the FRO. Separation agreements can be filed by either party with the FRO. This government office is in charge of collecting and dispersing support payments. If the payor does not voluntarily pay the FRO can put great pressure on the payor by suspending their drivers license, cancelling their passports , reporting them to credit bureaus etc. The FRO has been set up to ensure court orders or agreements for support are actually paid.
Division of Property
For most family law issues whether or not you are married or living together as a common-law spouse does not matter. But when it comes to the rules about property there are major important differences. Married Couples can look to the Family Law Act for rules to determine the division of assets. Common-law Couples can not.
The Family Law Act of Ontario deals with the division of property for legally married couples. In general when a married couple separate each spouse keeps their own property brought into the marriage (if it still exists) but share any increase in value and share any new assets acquired during the marriage. Assets that accumulated during the marriage are equalized so that each party receives equal value of all the assets after all the debts that also accumulated during the marriage are deducted.
Gifts and Inheritances
There is an exception to this rule of equalization which relates to any gifts from a third party or inheritance a spouse received during the marriage. The gift received from a third party or inheritance does not have to be shared provided this asset still exists at the date of separation or can be traced into an existing asset.
The exception to the exception is the family residence. If you have used your inheritance or gift to purchase the family residence or pay down the mortgage (without an agreement to the contrary) you equalize the inheritance or gift put into the family residence. If you wish to maintain your inheritance or gift it is critical to have a Marriage Contract before putting this money into the family residence.
Common-law couples seeking a Division of Property are not protected by the Family Law Act. The rules regarding division for common-law couples are found in Case Law. In general assets owned by one party remain the property of that party. Upon separation there is no automatic right to divide or share in property value. Anything you buy for yourself with your own money during the relationship belongs to you. Things purchased together belong to you and your spouse both jointly. If you have contributed financially to the acquisition of your spouse’s property you may have a claim for a share. For example if you cared for the home so your spouse could do work a court would look at whether your spouse was “unjustly enriched” at your expense.
The share you may be entitled will be based on the size of your contribution or how much your contribution increased the value of your spouse’s property.
Contact any of the following lawyers for legal advice and assistance regarding your Matrimonial and Family Law needs.
David J. Ashbee
Mark T. Rush