A separation occurs when a couple decides to live apart, or separate and apart under the same roof and their relationship has broken down. Married or common-law spouses may separate. A divorce occurs when the Court officially ends a marriage. Common-law couples have not married, and cannot divorce.
Who walked out on whom does not affect the Divorce. Having lived separate and apart for at least one year is a no fault ground, and you can obtain a Divorce without any requirement to prove that your spouse is responsible for the marriage breakdown.
The Divorce Act outlines that a court of competent jurisdiction may grant a divorce on the ground that there has been a breakdown of the marriage. A breakdown of a marriage is established only if:
The majority of divorces are obtained on the first ground, namely that the parties have lived separate and apart at least one year.
One or both parents may have custody of the children. The basic principles that a Judge uses when making decisions about children are the following:
The specific date of separation is important for two reasons; in determining the date on which property is valued for property division purposes, as well as setting the start date for the timeline to proceed with a divorce. The separation date is determined on a case-by-case basis and is often the date upon which one spouse leaves the home, or the date upon which one or both parties decide they are separated with no possibility of reconciliation.
It is possible to be separated yet residing in the same home. This is commonly referred to as “living separate and apart under the same roof”. There is no process to apply for a “legal separation” in Ontario, but it is important to establish the date upon which the parties have separated for the above noted reasons. Separations are documented by a Separation Agreement, or a Court Order.
When parties separate and there are children involved, custody and access must be addressed. Custody deals with which parent will make important decisions for the children, for example education, religious upbringing and medical treatment. Custody is not defined in the usual manner as in having physical custody of an object.
Custody can be sole or joint. Sole Custody results in one parent having the right to make decisions for the child or children. Joint Custody is when both parents have the right to make major decisions, in consultation with each other, which requires cooperation between the parents for the benefit of the children and open communication. Joint custody does not in and of itself mean that the children spend equal time residing with each parent. Often parents may have joint custody with respect to decision-making, but the child or children may reside primarily with one parent, with access to the other parent.
The primary consideration in awarding custody or access rights is the “best interest(s)” of the child(ren), with facts such as which parent has been the primary caregiver since birth playing an important role. There are unlimited options with respect to access and custody arrangements.
The Courts dictate that the younger the children, the more frequent access should be. We should also note that custody arrangements typically do not apply to teenagers, who can make decisions on their own behalf. Although the Courts have mandated such decision making abilities to children 16 years old and above, it is not uncommon for this rule to apply to children as young as 14 years old.
The legislation provides us with the Child Support Guidelines, which outline the amount of child support based on the payor parent’s income and the number of children. The payor parent is generally the parent who does not have primary residence of the children. The Child Support Guidelines automatically apply in situations where one parent spends less than 40% of the time with the children.
Over this amount of time, the access parent may seek a reduction of child support and at 50%, or in a shared-parenting arrangement, the parents would pay support to one another and based on their respective incomes. Also important to consider are section 7 or extraordinary expenses, which may include medical or dental expenses not covered by a health plan, extracurricular activities or tuition expenses (among other expenses) and child care expenses, all of which are generally shared by the parents proportionate to their incomes.
Unlike child support, we do not have a clear cut set of guidelines which outline the amount of spousal support, although we do have the Spousal Support Advisory Guidelines, which calculate a range of low, middle and high, spousal support figures based on a number of factors including but not limited to the duration of the parties’ marriage or cohabitation, the parties’ incomes and any child support payable. These Spousal Support Advisory Guidelines may be used the first time parties address spousal support as an issue.
The Spousal Support Advisory Guidelines provide a starting point in determining the amount and duration of spousal support.
The Court will often order spousal support where there is a disparity of income, in order to maintain an equality of lifestyles between separated spouses (especially where the marriage or relationship was of a long duration). One of our professionals would be happy to sit down and discuss your particulars circumstances with you and what your support entitlement or exposure may be.
There is a distinction between the treatment of property on dissolution of a marriage versus that of a common law relationship. When a married couple separates the property accumulated during their relationship is generally shared equally. This is done by way of an equalization payment. The equalization payment is calculated by determining the difference between each spouse’s net family property (or net worth) on the valuation date. The valuation date is the separation date.
The spouse with the higher net family property owes an equalization payment to the other spouse. Net family property is calculated, for each spouse, by adding all of the assets of the spouse on valuation date, subtracting all debts of the spouse on valuation date, deducting any assets owned on marriage date and excluding any property eligible for exclusion, such as any gifts or inheritance. This at times is a complex calculation and our lawyers would be happy to sit down with you to clarify exactly how this calculation impacts your specific situation. In a common law relationship, there is no equalization of property.
This does not mean that a common law spouse cannot make a claim against property owned by the other spouse, but this would most likely involve a claim for unjust enrichment, or what is known as a constructive trust. Such a claim would usually be made when a spouse contributed to the acquisition, maintenance or improvement of property owned by the other spouse. These types of claims should be commenced and pursued with the assistance of a lawyer familiar with this particular area of law.
The Court process is adversarial and tends to place parties against one another in a confrontational manner. Collaborative Law is a group effort that employs interest focused negotiation techniques. The focus is determining the needs and interests of each party to work toward a resolution that meets each parties’ needs as best as possible.
The focus is on having each parties’ needs met, rather than assuming a static position and fighting for one party’s needs over that of the other. In Collaborative family law, both parties and their lawyers will agree to and sign a collaborative Practice Participation Agreement. By signing the Agreement, the parties are agreeing to deal with each other in good faith, be respectful and not use the threat to withdraw from the process or go to Court as a means of forcing settlement.
The Lawyers also agree that their representation is limited to providing their services within the Collaborative process. Neither of the lawyers may represent either party should the Collaborative process end and the parties proceed to Court.
The Collaborative approach will not necessarily impact the speed at which you reach resolution to your family law matter, although it does mean that you do not have to wait for available Court dates as you would have to in the Court system. Your specific situation as well as the parties involved will really determine how long it takes for your matter to be resolved.
The Collaborative approach does allow the parties and their lawyers to move at their own pace, and the agreement to act in good faith and provide all financial disclosure in a timely manner can speed up the process. Most importantly, the collaborative approach aims to provide you with a durable, long-standing final agreement that both parties will respect and follow.
If you have entered into the collaborative process but are unable to settle your family matter, you can still bring your matter before the Court for a decision. Both parties would be required to retain new counsel to represent them in litigation.
Litigation
If you choose to litigate your family law matter, the ultimate decision with respect to your matter is made by a Judge based on the legal model. The parties have limited control over the process or outcome. This process may be necessary in some circumstances and is required when parties simply cannot reach an agreement or compromise on an issue.
Mediation
Through Mediation, the parties employ the assistance of a neutral third party, the mediator, to attempt to resolve their family law matter. Parties will retain their own lawyers outside of the mediation process to consult with respect to their position, rights and obligations, as well as to prepare the separation agreement and provide independent legal advice.
Lawyer Negotiation
Each party retains their own lawyer who asserts their client’s position towards a settlement. In this process, litigation may be threatened and/or utilized.
Arbitration
This process employs an agreed upon private Judge to make a decision based upon the legal model. The parties agree that this decision will be binding upon them as if it were a Court Order. Typically, lawyers are retained to advocate on the parties behalf within this process. In some situations, the parties may agree that their chosen mediator will also arbitrate the issues should they fail to come to an agreement.
Colaborative Family Law
In this process, both parties retain their own lawyers who are trained in collaborative law. The parties and lawyers enter into a contract to treat each other in a respectful manner, and agree to disclose all documents and information, and act in good faith.
Both parties must be committed to the Collaborative process. Each party will retain their own lawyer trained in Collaborative Law. You will each meet independently with your own lawyer to review the process and discuss the facts and issues surrounding your family law matter. Both parties and their lawyers will agree to and sign a collaborative Participation Agreement.
By signing the Agreement, the parties are agreeing to deal with each other in good faith, be respectful and not use the threat to withdraw from the process or to go to Court as a means of forcing negotiations. The Lawyers also agree that their representation is limited to providing their services within the Collaborative process.
Neither of the lawyers may represent either party should the Collaborative process end and the parties proceed to Court. Keep in mind, your lawyer has a professional duty to represent you, and is not acting for the other party. Your lawyer will explain to you your options, how the law would apply to your case and likely outcomes.
With this information in mind, you are in the driver’s seat, making the decisions with respect to your matter and what is best for you and your family; with the guidance and advice of your lawyer. The lawyers and clients will meet in four-way meetings to move towards solutions through brainstorming and understanding the interests of the parties and any children that may be involved.
Once the parties have reached agreement on the outstanding issues, the lawyers will draft a Separation Agreement which reflects the parties’ resolution.
The Collaborative Process can include the assistance of Family Professionals and Financial Professionals who have been trained in the Collaborative Practice. Family Professionals are most often counsellors or social workers who facilitate communication and help to work with the parties’ in dealing with their emotions during the process.
Financial Professionals can provide their expertise in helping the parties evaluate their financial situation and plan for their financial futures.
If you have never owned an eligible home anywhere in the world, and your spouse has not owned an eligible home anywhere in the world while he or she was your spouse (either married or common law spouse), then you may qualify for the Land Transfer Tax Refund for First Time Homebuyers. You must occupy the home as your principal residence no later than nine months after the property is transferred to you.
In a joint tenancy, the share of a joint tenant who passes away goes to the surviving joint tenant.
In a tenancy in common, when one of the property owners dies, his or her share goes to his or her estate.
Our Role in your Purchase
Title Search: Legal Searches and enquiries to ensure you receive title clear of encumbrances or other issues Mortgage: prepare mortgage documents and explain terms of the mortgage Explain the different ways to hold title to property and help you decide which is best for you (joint tenancy versus tenancy in common) Explain and make sure you understand the documents you are signing Carry out the actual transfer on the closing date Provide you with the keys to your new home.
Our Role in your Sale
Reply to requisitions made by the Purchaser’s lawyer Prepare the Transfer and Statement of Adjustments Review and meet with the Vendor to sign closing documentation Attend to the transfer on closing date Forwards funds to mortgage company or financial institution to discharge any mortgages registered against the property Provide you with the sale proceeds!
Land Transfer Tax (LTT) is payable by the purchaser on the total purchase price (or other consideration given) of the property on the date of closing. The date of closing is the date that the Transfer/Deed of land is registered with the Land Registry Office. LTT is calculated using a sliding scale based on the value of the property. If you are purchasing a home in Toronto, there is an extra Toronto LTT applicable.
If you are a first-time home buyer, you may be entitled to a Land Transfer Tax Refund. The maximum amount of the refund is $4,000 in Ontario and upwards of $4,475 available in Toronto as well. These refunds may be claimed at time of registration and can offset the amount of Land Transfer Tax Payable on closing.
It is important to have Powers of Attorney for Property and Personal Care. In the event that you become incapacitated these documents would provide your Attorney to act on your behalf. With respect to the Power of Attorney for Property, your Power of Attorney would be able to deal with your property on your behalf and essentially step into your shoes.
These Powers of Attorney for Property may take effect immediately, or on a subsequent incapacity. Powers of Attorney may apply to any incapacity in the future, or to allow the Attorney to act for a specific period, for example if you were to leave the country. The Power of Attorney for Personal Care allows the appointed individual to make decisions on your behalf with respect to your medical health and welfare and provides you the opportunity to outline your wishes with respect to life support or resuscitation.
These are commonly referred to as Living Wills. It is important to note, without a Power of Attorney for Personal Care you are risking that a Board of Directors of your caring hospital will make decisions regarding your welfare should you become incapacitated.
If you have children, your Will provides an opportunity to appoint a Guardian. Many do not realize that the appointed Guardian must apply to Court within 90 days for formal approval; if the appointed Guardian is deemed inappropriate the Court will overrule and appoint another Guardian. Although the Court has this power, the Will is an important indication of your wishes and this preference carries significant weight. A guardian is appointed for the care of the child as well as for his or her property.
There are two types of power of attorney: Power of Attorney for Property, and Power of Attorney for Personal Care. In the event that you become incapacitated, these documents would allow your Power of Attorney to act on your behalf. With respect to the Power of Attorney for Property, your Power of Attorney would be able to deal with your property on your behalf. The Power of Attorney for Personal Care allows the appointed individual to make decisions on your behalf with respect to your medical health and welfare, and provides you the opportunity to outline your wishes with respect to life support.
If you die without a will (which is also called dying intestate), your estate will be dealt with in accordance with the Succession Law Reform Act (SLRA). In the event that you are married and have no children, your husband/wife will receive your property. If you are not married, but live in a common law relationship, your common law spouse will not inherit any of your property, but they may be able to make a claim for support against the estate.
In the event that you die without a will and are married with children, the SLRA states that the surviving spouse gets a preferential share, and the balance is divided between the surviving spouse and children. If a person dies without a spouse or children, then the deceased’s parents would inherit the estate. If the deceased had no surviving parents, then his or her property would be divided equally among his or her brothers and sisters.
If any brothers or sisters have predeceased the person who has died, the share of that brother or sister is divided equally among his or her children. In the event that a person dies without a spouse, heirs, or next of kin, their property will escheat to the Crown, which means that the government will receive the property of the estate.
A divorce will cause any provisions of your will that deal with your ex-spouse to become invalid. The rest of your will remains valid, but it may be difficult to interpret the remainder of your will, and it is important to have a new will drafted.
No. Becoming separated from your spouse does not impact your will. If you pass away while you are separated, your spouse may still inherit under your will. It is important to have a new will drafted upon separation.
