Skapinker & Shapiro LLP
Barristers & Solicitors
An outline of Ontario Family Law
There is only one ground for divorce in Canada namely that the marriage has irretrievably broken down. This can be proven in one of three ways, the most common of which is that the spouses have lived separate and apart for more than one year. The other two methods to show the breakdown are cruelty and adultery. In terms of the issues arising from marriage breakdown, a divorce is usually the least contentious. The issues corollary to a divorce, namely property, custody of children and support are usually far more contentious. Divorce in Canada is governed by the Divorce Act.
Each province has its own property laws. This information deals with Ontario only. During marriage each spouse is a separate party and owns his/her own property. The law treats the marriage as a partnership and the partnership profits are split. Thus on separation each spouse calculates his/her net partnership profits by deducting the value of his/her assets at the date of marriage from the value of his/her assets at the date of separation. This increase is called the net family property (NFP). The spouse with the greater NFP will have to pay the other spouse one half of the difference between the two values. Certain property is excluded from this process such as assets inherited during the marriage and the value of a matrimonial home at marriage is not deducted. These rules are contained in the Family Law Act and may be viewed in summary form. This equalization process only applies to spouses who have formally married. It does not apply to common law spouses. A constitutional challenge to the validity of this distinction has failed and the Supreme Court of Canada has declared this not to be a breach of the Charter of Rights.
The matrimonial home(s) is a home which is owned by one or both married spouses and ordinarily occupied by the family at the date of separation. If a marriage breaks down, each spouse has an equal right of possession meaning one spouse cannot lock the other one out without an agreement or court order. The fact that the owner of a matrimonial home cannot deduct its marriage date value when calculating net family property is most unfair. There is no valid reason in this day and age, in our view, for this exception. There are a few ways to ensure that a spouse who brings a house into the marriage is not prejudiced by this exception. One is to enter into a marriage contract which specifically allows for the deduction of the marriage date value. The other is to sell the house during the marriage and to buy another. This takes the house out of the exception because now it will no longer be the matrimonial home which was owned on the date of marriage. A home owner who sells and buys another home should be sure to take title in his/her name and not jointly with the other spouse. A spouse who registers the house in joint names is deemed to have given half of the house to the other spouse. Another reason to keep title in one name is that any post separation increase in value belongs to the title holder alone.
The Divorce Act provides that a court should look at four heads in determining whether to order spousal support and how much to order. These four are a) to recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; (b) to apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above the obligation apportioned between the spouses; (c) to relieve any economic hardship of the spouses arising from the breakdown of the marriage; and (d) in so far as practicable, to promote the economic self-sufficiency of each spouse within a reasonable period of time. If a spouse is unable to support him or herself or if there is a big difference between the income of each spouse, he or she may have a claim for support against the other spouse. The duration and amount of support will depend on many factors including the length of the marriage, the age of the parties, the health of the parties, the employability of a spouse and whether time was taken out of the workforce to raise children. The courts are now ordering non time limited spousal support upon the breakdown of medium to lengthy traditional marriages particularly where there are children. Either party may apply to vary the terms of a spousal support obligation if there has been a material change in circumstances. A spouse (or former spouse) will have great difficulty claiming spousal support if the right to spousal support has been given up in a separation agreement (see domestic contracts below).
When parents separate, arrangements must be made to deal with custody of the children. The legal test to determine who shall have custody is what is best for the child. The approach the legal system takes is a child centered one. The parent having custody makes all of the major decisions affecting the child and the child's principal residence is usually with that parent. The non-custodial parent usually has visitation rights known as access. Depending on the case the parents can also have joint custody where the parents jointly make all major decisions. The child(ren) may also reside with each parent on a rotating basis. There are additional cusody and access problems when there has been violence in the family. For those interested in further information on this topic, see the B.C. Institute Against Family Violence Newsletter. The Minister of Justice has recently announced changes to the Divorce Act which will result in the abolition of the words "custody" and "access" and the introduction of "parental responsibilities". See the media announcement for more details.
The highest court has decided that if the custodial parent wants to relocate with the children, that parent must satisfy the court that such a move is in the best interests of the children. For more details about how the courts deal with this issue, see the leading Supreme Court case. Some trial level courts have allowed one of the separated parents with whom the child(ren) live to move with the children. The Court of Appeal has recently ruled in 2 separate cases that such parent may not be permitted to move with the children if the move is too disruptive to the relationship between the children and the parent with whom they do not normally live.
If a separated spouse with sole custody of a child wants to change the name of that child he or she can do so unless he/she has given up that right in a separation agreement. For more information see the Change of Name Act. The Supreme Court of Canada has very recently struck down the law giving single mother's the right to solely determine a child's name.
Changes to the child support laws have radically changed the way child support is now determined. The rules are contained in child support guidelines. The first issue to determine is the income of the non custodial parent. Once that is known, one turns to a chart which has a set figure of monthly payments depending on that income and on the number of children. This is the starting point in the determination. A determination is then made of additional payments which the non-custodial parent will be obliged to pay. These additional payments are for child care expenses incurred as a result of the custodial parent's employment, education or training for employment or the custodial parent's illness or disability; extraordinary medical and health-related expenses; extraordinary expenses for primary or secondary school education or for any educational programmes that meet the child's particular needs; expenses for post-secondary education; and extraordinary expenses for extracurricular activities. The amount paid for such add ons is determined on a proportional basis by comparing the income of each parent.
There are exceptions to the above scheme of child support determination. These include situations where the non custodial parent has the child(ren) for more than 40% of the time, where the non custodial parent earns in excess of $150,000 p.a., where a child is over 18 years of age and where access costs are unusually high.
For a detailed explanation of each section of the guidelines, see the article written by Nicholas Bala.
In certain circumstances support payments are tax deductible. To determine whether a particular support payment in tax deductible, see the Canada Customs and Revenue Publication dealing with this subject.
The easiest and cheapest way to collect support arrears is to make use of the Family Responsibility Office.
An International Treaty has been established to deal with child abductions by one parent. The treaty, known as the Hague Convention, does not deal with the merits of any particular case. The treaty is geared toward ensuring the return of the child(ren) to the jurisdiction from which they were wrongfully removed so that the courts of that jurisdiction can deal with custody on the merits.
The way the treaty works is that the parent whose custody rights have been violated by a removal of the child from the jurisdiction by the other parent may apply to the authorities (usually the Attorney General) in the local jurisdiction or in that country where the child now is. That authority then has the power to seek out the whereabouts of the child, ensure the child is not harmed, take steps to arrange a voluntary return of the child and lastly take legal steps in its own courts to obtain an order for the return of the child to his/her country of ordinary residence.
Most countries have ratified the treaty but you should check to determine whether a country has done so.
A couple may be considered to be common law spouses after they have lived
together for three years or, if they have a child together, for a lesser period.
Upon separation common law spouses do not have the same property rights as
married spouses (see Property above) but they do have the same support rights
and obligations and if there are children of their relationship, the same
custody, access and child support rights and obligations. The Supreme Court recently handed down a ruling which clarifies the property rights of common law spouses upon breakdown of their relationship. If the couple could be said to be in a joint family venture, the court may find that one party has been unjustly enriched on the basis that he or she has retained a disproportionate share of the joint family venture. A disproportionate share means a share that is disproportionate to that person’s contributions when compared to the other’s contributions. See Kerr v. Baranow, Vanesse v. Seguin.
There is help available for abused spouses. It is important to recognize abuse. There are many myths surrounding this subject. If you feel you are being abused, you can get help from the police or the protection of the courts in a civil proceeding. Don't feel that there is no escape - see a lawyer so you can learn what your options are. See Ontario Women's Justice Network for more resources on spousal abuse and the Canadian Society for the Investigation of Child Ause for resources regarding child abuse.
There are three types of domestic contracts provided for in the law, namely cohabitation contracts, marriage contracts and separation agreements. Those who do not like to be governed by the rules set out in the statutes can set up their own arrangements for rights and obligations during cohabitation or upon separation. There are a few restrictions such as the inability to deal with children and rights of possession to a matrimonial home under certain circumstances. Marriage contracts are usually more appropriate in second marriages or when one spouse is older. Cohabitation agreements are useful in common law situations as the parties can set out their rights and obligations and so provide a greater degree of certainty. Most separating spouses settle their differences by way of a separation agreement. Such agreements contain specific terms which govern custody of children, visitation with children, division of property and equalization, spousal support and child support. The Supreme Court of Canada has now made it very difficult for a spouse or former spouse to claim spousal support in court after he or she has released all claims to spousal support in a separation agreement.
The Parental Responsibility Act was recently passed to hold either or both parents
responsible for damage intentionally caused by their children. A person whose
property has been damaged by a child under 18 can sue the child's parent(s)
in Small Claims Court and the parent(s) would be liable for the damage caused
unless the parent could show that the loss was not intentionally caused or
that the parent exercised reasonable supervision or made reasonable efforts
to prevent the damage.
For further information on Small Claims Court procedure, go to http://www.attorneygeneral.jus.gov.on.ca/html/cad/sccbook.htm.
Every adult should have a will. The reasons are to ensure the distribution
of your estate according to your wishes, tax and estate planning, to pick
your own executor or trustees, to ensure the survival of your business, to
avoid disputes between your heirs, to minimize taxes and to reduce government
agency involvement. Powers of attorney give your chosen trustee power to deal
with your person and property in the event you become incapacitated by injury
or mental disease and a living will instructs those responsible for you should
you be on life support
(a) Until recently a spouse or ex spouse could only deduct legal fees incurred in family law cases from his or her taxes in very limited circumstances. The ruling in Tax Court of Gallien v. the Queen has led the CCRA to indicate that legal costs incurred to obtain spousal support are deductible. To learn exactly what part of your legal fees may be tax deductible, you should seek the advice of an income tax advisor.
(b) The Family Law Rules now govern all family law cases in the Ontario Courts.
If you are a child of parents who are separating or getting divorced and are worried about where you stand, I suggest you read the Ontario Government Guide for someone in your position.
There is very little doubt that it is preferable to arrive at a negotiated settlement than to litigate. The important and difficult issue is to know when to negotiate and when to litigate. The vast majority of family law disputes, even those which start off in court, are settled before reaching trial. The benefits of mediation include keeping a lid on costs, reducing stress on the children, being able to design a solution which you and your spouse can live with and reducing tensions between you and your ex spouse. Studies have shown that former spouses are more likely to follow an agreed upon settlement as opposed to a court imposed one. If negotiation is not possible or if you will derive no benefit from mediation then of course litigation will be required.
The first contact you (as a litigant) will have in court is at a case conference. This informal attendance before a judge is required (and you must be present) before a formal motion (an opposed argument before a judge who is asked to make a ruling) can be brought. The purpose of the case conference is to get an opinion from a judge and attempt to settle at an early stage so that contested litigation can be minimized. If you are unable to settle at a case conference the judge will provide a schedule for documentary disclosure and perhaps questioning and will either end the case conference, or if it looks like settlement is possible only after disclosure is made, adjourn the case conference to a later date or to a Settlement Conference.
Legal services are now more accessible to separating spouses who enter into limited retainers with lawyers. Here at Skapinker & Shapiro LLP we are prepared to assist a party in a legal proceeding with preparing for or attending in court at a Case Conference, a Settlement Conference, a Trial Management Conference, an exit pre-trial or in simply evaluating your case and helping you fill in the required forms. We are also prepared to represent you at trial even though you have represented yourself in all or most of the pre-trial steps. If you wish to receive more information about this service, please do not hesitate to call Joel Skapinker at (416) 214-1502.
Mediation/arbitration is an alternate way to resolve your case
You should consider having your case mediated/arbitrated before you get caught up in litigation in court. Family mediation is the process of having an impartial neutral qualified mediator assist you and your spouse to voluntarily reach an agreement which you both consider to be fair.
Joel Skapinker has formal training as a mediator and arbitrator. As a family lawyer with 28 years experience, he has been involved in numerous successful mediations and arbitrations.What are the advantages of mediation?