Family & DivorceFamily law deals with the rights and obligations of parents, spouses, and guardians upon separation or divorce. A usual family case involves claim for spousal support, child support, guardianship, access, custody, or parenting time, and division of property. Family case can also start before the marriage or common law relationship solidifies by way of a cohabitation agreement, pre-marital agreement, or pre-nuptial agreement.
Unlike many other types of files, family orders are rarely truly final and can often be modified if there is a material change in circumstances. Many type of family orders for support, both child and spousal, provide for internal review mechanisms, such as after a certain number of years, upon the former partner entering into a new marriage-like relationship, or upon the loss of a job or increase in salary by a certain percentage.
Family law allows for many more creative solutions than other types of law, since the relationship between th e parties may continue for many years after trial, in particular in cases involving younger children. Collaborative family law, mediation, arbitration, and the use of family justice counsellors are quite common. This avoids the use of Court, which has an adversarial overture to it.
Married or common law partners may find themselves curious about what they are entitled to, if anything, by way of child and spousal support. Fortunately, the law on the amount of support is relatively easy and it largely depends on the support payer’s income. The tougher questions are entitlement and duration. Spousal support can actually be indefinite, and child support can continue for many years after a child turns 18 if they continue post-secondary studies or have a disability.
We also often see challenges to the division of family assets and debt, particularly when one partner is self-employed or the family home or other property is solely registered in their name. Family members of your former partner may also become involved if they are on title to property, or seek any form of access to their grandchildren. The Courts also recognize that sometimes former partners remain intentionally unemployed, or don’t truthfully report their incomes to CRA in which case the Court can impute income and base support payments off that.
A feature unique to family law is the ability to have interim advances made when your entitlement to a family asset is not truly in dispute. Instead of just being a secured creditor, you actually get cash in hand, which is helpful for purchasing a new place, paying off existing debt, and also retaining a lawyer. Interim orders for child and spousal support are relatively easy to obtain and make it so that you do not have to spend years acting as a financier for your former partner.
Where family violence is present, protective orders are often necessary which may result in temporary or permanent changes to any custody schedule, particularly if the other side has any history of physical or psychological abuse or any problems with anger, drugs, or alcohol.
As family cases can go on for many years and often deal with financial matters it is important that you keep detailed records of bank accounts, investment accounts, vehicle purchases, and credit card statements, particularly as they typically can only go back seven (7) years. Income tax records are usually much easier to obtain and usually only the last three to five years of records are needed.
One of the first things that should be done is to determine when you have separated, particularly if you are in a common law partnership. Your entitlement to file a claim for property division is based upon when you separated. Separation is not the same thing as breaking up. You can be separated but living in the same house and still seeing each other. The date of separation also matters for cases involving the division of assets and debt, and their value at that moment may be quite appropriate to ascertain.
For partners who are going through a separation there are generally four important issues that concern them at the very beginning of a family file. The first is determining where to live. Typically when a marriage or common law relationship breaks down, one party leaves, usually because they have been ousted by the other side. Just because a person leaves the former matrimonial home does not mean they give up their right to be compensated in part for the cost of having to live somewhere else – which in law is called occupational rent. The law recognizes that the person remaining in the house has to pay the mortgage, strata, utilities, and property tax, but they otherwise live free of rent, while the other side typically is still responsible for half of the costs of maintain the property and still has to pay the full price of rent for a different address.
The second big issue is access or custody to the children. Most of the time guardianship – the ability to make choices about activities a child engages in – are not seriously contested and most parents recognize that they will both be guardians of the child. However access and custody is usually hotly contested, especially when both parties work and now live some distance apart. An even more challenging situation arises when one person wants to relocate for their work, to start or continue their education, or because they want the support of family in that area. If custody and access or being denied then it is important to take steps quickly to get an interim court order for it to seek make up parenting time, and to also prevent alienation by your former partner.
The third major concern is about support, both child and spousal. Often people are very surprised as to the amount of support that they have to pay, especially when there are two or more children involved. It can feel like half of your paycheque is going to someone that doesn’t even live with you anymore. However, it is often the case that former partners do not pay the full support obligation, even when the amount is relatively easy to ascertain and not disputed in law, which can lead to substantial arrears later on if support is recalculated and adjusted back in time. Some individuals also find that they are unable to get their partner to co-operate in paying any support at all. The Family Maintenance Enforcement Program will typically assist these individuals but they usually require a Court order before they can take any action. Without taking early steps to establish support you risk trying to negotiate on an uneven playing field. Information about your former partner, such as their earnings per year, are typically needed in order to get some support going, however if they refuse to provide it, or are self-employed and don’t keep the cleanest books, then the court may impute their income and determine their support obligation off of that.
The fourth most common thought after separation is about preserving the family assets and obtaining an interim distribution of them. Usually when a family claim is started, one party will file a Certificate of Pending Litigation against the former matrimonial home which prevents its transfer, further re-financing, or sale.
Some parties are able to more or less resolve all issues about parenting time and division of property by themselves. However many individuals then come to us and try to set aside these separation or marriage agreements because they did not realize what they are entitled to under the Family Law Act or the Divorce Act. We have even seen couples that have massive wage discrepancies agree to not have any child support payable on a shared custody arrangement – something that the Court would likely never order as child support is the right of the child.
If you are entering into such an agreement it is important to keep detailed records of other representations made – such as what your former partner discloses as their income, property, and debt obligations. If your former partner has materially misrepresented themselves during the course of negotiations you may be able to get out of any agreement that relates to parenting time, child support, property division, and spousal support and seek a larger amount.
In cases where you want to gain sole custody, or try to regain shared custody, it must be in the child’s best interests to do so. A solid plan needs to be created and details and investigations into the other side, and addressing any issues that the Court may raise about yourself should be done to give you the highest likelihood of success.
Our family law attorneys assist clients from consultations, independent legal advice, to drafting marriage, prenuptial, and separation agreements, all the way through mediation, arbitration, and trial proceedings. Because family cases often continue on well past a final order is made, because of the ability to review an order if there has been a material change in circumstances, we also act for clients to assist them in varying or terminating their support obligations, assisting with the relocation of children, enforcement of orders for parenting time or contact, and also dealing with the Family Maintenance Enforcement Program.
Unlike many litigation files, sometimes it is to a client’s advantage to not have our advice or presence be known to the other side. This is particularly true in cases where an agreement has the potential to be formed. Depending on the client’s needs, our involvement can be relatively limited and cost effective. Often this also depends on cooperation by the opposing side.
When a file has exceeded the ability to be resolved absent court proceedings we ensure that your claims are filed within the limitation period, particularly as it applies to common law couples. We have a network of accountants and financial professionals, such as property appraisers, and business valuators, that assist us determine both your assets and financial lability, but also that of the other side.
In cases involving children, we assist with issues surrounding alienation by one parent, refusal to abide by a parenting time order, relocation, and also child abduction. We engage professionals to both provide a “Views of the Child” report, and also counselling to assist with the trauma of separation and any disparaging remarks made by the other parent, as well as issues that arise when there has been prolonged isolation.
Throughout the life of your file we try to assist you with understanding the processes that we use, and are available to you, to obtain the necessary family orders. Family law, while technical, actually does have some “correct” answers, particularly as it relates to support obligation, and what constitutes family assets and family debt. The legislation surrounding family law can also be seen as a statute of fairness.
Every relationship is different, and the advice that you receive will be tailored to your unique situation, and most importantly the outcomes you wish to accomplish. Some couples wish to be legally divorced and separate their finances, but for financial reasons or to preserve the status quo for their children, will continue to reside together in the same household. Other couples want to relocate to another country altogether. Yet others come to us with what can be described as a “Do-It-Yourself” divorce kit and want to obtain independent legal advice before signing off.
For a typical family file with kids, the first thing we do is to take steps to prevent assets from being dissipated and to establish a fair parenting schedule that allows for shared custody and an offset of child support. If there are safety concerns to yourself, or your children, we can attend court promptly to obtain a protection order. After immediate concerns about safety and the removal of assets are addressed, we will work towards establishing interim support payments and if appropriate and feasible, and interim distribution of property.
Usually after interim orders are made, full financial disclosure will be required from both yourself, and your former partner in order to try and resolve your matter. Prior to full financial disclosure being made, there is often too much uncertainty to accurately determine what would be awarded after trial. Unlike many areas of law, family law does have some “correct” answers as it relates to the amount of support payments, both for child support and spousal support, as well as division of property and equalization of pension benefits.
Depending on the reasonableness of the other side agreements can often be reached in a short period of time after appropriate financials are provided, however sometimes mediation or arbitration make more sense and are what is needed in order to conclude a file on great terms. For more difficult files the only way to get what you are entitled to is through a trial proceeding.
After a trial is concluded we are always happy to assist with all matters that will naturally arise after a judgment is delivered. If a party fails to transfer property in accordance with a decision that requires property division, refuses to abide by a parenting schedule, fails to pay support, or wishes to change either the amount of their support obligation, or the duration, those are great cases that often can be done much quicker and for far less than a conventional trial.
Family law is one of the few types of cases that the law prohibits from being done on a contingency basis with some extremely minor exceptions. Some aspects of family law can be done on a flat fee basis, such as providing independent legal advice, or the drafting and execution of marriage, prenuptial, or separation agreement. The amount will vary depending on the complexity of the situation, including if there are children, adult children, or children with disabilities, if there are assets in other Provinces or countries, and if there are support payments going to either party as a result of a previous relationship.
Other aspects of a family file cannot be estimated at an early stage given that the amount of time, and steps needed to advance your file, are within the control of the other side. A case involving a former partner who freely gives up their financial information and does not take any outrageous position will be a lot cheaper than a file in which the other side refuses to abide by any order. However a party that refuses to abide by any order can be ordered to pay special costs, as opposed to just regular tariff costs. Special costs may account for 75% or more of your legal fees. If you need assistance in enforcing an order, it is relatively common to get an award of special costs. In exceptional cases they can actually exceed your actual legal fee, but that is very rare.
Contact us either at (604) 259-6200 or using the form below for assistance with Family & Divorce law
The foregoing provides legal information and does not constitute legal advice. As an analogy, legal information are equivalent to learning the rules of chess, and legal advice is the tactics and strategy that goes into winning a game. Lawyers are trained to give valuable advice that is specific to you after learning about the details of your case. Readers are cautioned that they will rarely achieve the best outcome for their case without actual advice. A consultation is often the best next step to take.