Familt Law FAQs

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1. Divorce

2. Custody and Access

3. Child Support

4. Spousal Support

5. Equalization of Net Family Property

6. Appeals


Divorce


  1. When can I obtain a divorce?

    To obtain a divorce, you and your spouse must have been living separate and apart for one full year, have not resumed co-habitation for more than 90 days during that year-long period, and there must be no chance of reconcilation.

  2. In order to obtain custody and access, child support, spousal support, or equalization of family property, do I have to be divorced first?

    No. Subject to certain time limitation periods, these types of collary relief can be obtained regardless of whether you are still married or not.

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Custody and Access


  1. What is the difference between custody and access?

    Most people generally assume that if a parent has custody of a child, the child resides with that parent. This is not necessarily the case. A parent can still have "custody" of his/her child without the child living with him/her. Custody relates to decision-making abilities regarding major issues such as health, education and religion.

    Access relates to when each parent spends time with their child. A parent's right of access to a child provides that parent with a number of rights to make inquiries and be informed about their child's health, education and welfare.

  2. I am not the child's biological parent. Can I still get custody of or access to a child?

    Yes.

  3. What factors does a court consider when determining custody and access?

    The most important consideration is - what is in the best interests of the child? A court will look at a number of factors in answering this question, such as the the love, affection and emotional ties between the child and the person seeking custody/acces, the childs views and preferences, the length of time the child has lived in a stable home environment and the ability and willingness of each person 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.

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Child Support


  1. Do I still have to pay child support if I had a child with someone to whom I was never married?

    Yes. Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so.

  2. How do I determine how much child support is payable?

    Child support depends on where the parents live, and what custody/access arrangement the parents have with regard to the child for which support is payable. The Government of Canada provides an online calculator for determining child support payable.

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Spousal Support


  1. What is spousal support?

    Spousal support is meant to provide support for a spouse after the breakdown of the marriage.

  2. Do I have to have been married to my spouse to be entitled to spousal support?

    No. Spousal support is available under both the Divorce Act (which governs married spouses) and the Family Law Act (which governs both married and non-married spouses). Under the Family Law Act, a spouse includes either of two persons who is/was married, as well as 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. Until recently, the ability of common-law spouses to make a claim for either damages or an interest in property from their former partner was limited to cases in which one could prove a ‘trust’ interest in the other’s property. Recent case law from the Supreme Court of Canada, however, has significantly expanded the ability of common-law spouses to make a claim similar to an equalization claim. How this case will be interpreted by Ontario courts and how it will play out in actual cases remains to be seen.

  3. When is spousal support payable? How is the amount and length of spousal support determined?

    Determining whether spousal support is payable is a complex legal question which is determined based on the case's particular facts and the parties' circumstances.

    Under the Family Law Act, a spousal support order is supposed to recognize the spouses contribution to the relationship and the economic consequences of the relationship for the spouse; share the economic burden of child support equitably; make fair provision to assist the spouse to become able to contribute to his or her own support; and relieve financial hardship.

    The court looks at a number of factors in determining quantum (amount) and duration of spousal support, such as:

    (a) the dependants and respondents current assets and means;

    (b) the assets and means that the dependant and respondent are likely to have in the future;

    (c) the dependants capacity to contribute to his or her own support;

    (d) the respondents capacity to provide support;

    (e) the dependants and respondents age and physical and mental health;

    (f) the dependants needs, in determining which the court shall have regard to the accustomed standard of living while the parties resided together;

    (g) the measures available for the dependant to become able to provide for his or her own support and the length of time and cost involved to enable the dependant to take those measures;

    (h) any legal obligation of the respondent or dependant to provide support for another person;

    (i) the desirability of the dependant or respondent remaining at home to care for a child;

    (j) a contribution by the dependant to the realization of the respondents career potential;

    (k) if the dependant is a spouse:

    (i) the length of time the dependant and respondent cohabited,

    (ii) the effect on the spouses earning capacity of the responsibilities assumed during cohabitation,

    (iii) whether the spouse has undertaken the care of a child who is of the age of eighteen years or over and unable by reason of illness, disability or other cause to withdraw from the charge of his or her parents,

    (iv) whether the spouse has undertaken to assist in the continuation of a program of education for a child eighteen years of age or over who is unable for that reason to withdraw from the charge of his or her parents,

    (v) any housekeeping, child care or other domestic service performed by the spouse for the family, as if the spouse were devoting the time spent in performing that service in remunerative employment and were contributing the earnings to the familys support,

    (vi) the effect on the spouses earnings and career development of the responsibility of caring for a child; and

    (l) any other legal right of the dependant to support, other than out of public money.

    The issue of spousal support can also be addressed with reference to the Spousal Support Advisory Guidelines. These guidelines are not law (in that courts are not bound to follow them) but they serve as a useful starting point in determining whether a spousal support obligation exists, and if so, for what duration and in what amount.

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Equalization of Net Family Property


  1. My spouse and I were never married. Under the law, am I entitled to any property division?

    No, unless you had an agreement that says otherwise. The division of family property is governed by the Ontario Family Law Act. The sections in the act regarding family property are only available to married spouses.

  2. How is family property divided?

    This is a complex question, as it depends on the facts of the case and the circumstances of the parties. The Family Law Act says that after divorce or on separation for one year or more and there is no reasonable prospect of resuming cohabitation, the spouse whose net family property is the lesser of the two net family properties is entitled to one-half the difference between them. However, in some cases, depending on the facts, a spouse may be entitled to more or to less than one-half the difference.

    A spouse's "net family property" is a number which is calculated by looking at the spouse's assets and debts as of the date of marriage and the date of separation. Assets can include bank accounts, cash, real property and pensions. Debts can include line of credit, credit cards, mortgages and loans. Certain items can be excluded from the calculation of net family property, such as inheritences, personal injury damages awards, and gifts.

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Appeals


  1. I went to court and received a judgment/decision/order which I disagree with. What are my options to change the judgment/decision/order?

    Your options depend on which court the judgment/decision/order was made in (Ontario Court of Justice or Ontario Superior Court of Justice) and what type of subject matter the order deals with. Subject to certain time lines, you may be able to appeal.

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This information is for information purposes only and is not intended to be legal advice. Full and complete legal advice can only be given by a lawyer who has detailed information about your individual circumstances.