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.