Family Law
| When dealing with a Family
Law matter, always talk to a lawyer first. The way a family
problem is settled involves complex and emotional issues,
particularly the custody of children. Splitting up family incomes
to pay for two households instead of one is a difficult and
complicated task. These decisions affect the rest of your life, so
make sure you get the legal advice you need. When considering
signing an agreement with your spouse, it is important to obtain
independent legal advice to protect yourself, but also to protect
the integrity and enforceability of your agreement. The law
requires specific formalities in execution of domestic contracts
for such agreements to be binding.
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Topics
Separation agreements
You don't have to get a divorce to divide up
your property. You can agree with your spouse to the terms of your
separation, and specify them in a legally enforceable document. If you
think a separation agreement is possible, but you can't agree on
everything, involving legal counsel may assist in the negotiation
process. Both parties to the agreement should have independent legal
advice, from separate lawyers, before signing it. This is important for
three reasons:
- To protect your interests and to advise you how the agreement
affects your rights.
- To explore any areas omitted in the agreement that you hadn't
thought of.
- To safeguard the
enforceability of the agreement. A separation agreement can later be
set aside by a court if one party claims that he or she did not
understand the nature and the consequences of the agreement. Ensuring
that each party has independent legal advice will help protect against
this potential claim. It is also important to exchange financial
disclosure with your spouse prior to executing an agreement, both to
protect yourself and to protect the agreement from future challenge,
and your lawyer can assist with this as
well.
Applications to the
Court
It is important to remember that you always
have two options: to settle issues directly with your spouse by entering
into an agreement, or to apply to the court to have your disputes
decided by a judge. The advantages of settling matters by agreement are
that it is generally much less costly, and you retain control over the
decision making process. Particularly with regard to children, most
parents would prefer to compromise by agreement rather than run the risk
that a court will impose a decision that they may not like and by which
they will be forced to abide. However, failing agreement, either party
may commence an application to the Ontario Superior Court of Justice.
There are many options to explore in
determining custody of children, including joint custody and various
means of sharing parenting after separation. A custody application takes
time. In any litigation there are many steps and stages before a trial
of the action when all matters are ultimately decided by the court. With
regard to children, sometimes the court will seek the involvement of the
Office of the Children's Lawyer to appoint independent counsel to
advocate in the best interests of the children. In other cases, the
parties agree to a family court assessment, or one is ordered by the
court, whereby the parents and the child are interviewed by a
psychologist or social worker or other professionals, who then makes
recommendations to the court. In the meantime, courts are reluctant to
disturb the status quo. This means that wherever the children
have been residing since the separation of the parents, they will
probably stay there until the judge renders a final decision, subject to
the court imposing a schedule for sharing time with the children between
the parents. For this reason, it is important to get legal advice before
you separate, so you will know the potential ramifications of your
actions before you proceed.
Access
Access is the legal right of the child. It is
very rare that a court will deny access to a parent, unless there is
evidence that access will be harmful to the child. If you can't agree on
access, involving legal counsel in negotiations may be useful. Your
lawyer will know the circumstances in which access may be limited or
denied, and will be able to give you an idea of the range and duration
of access orders typically granted by the courts. With this information,
you may be able to agree to terms mutually acceptable to both parties
rather than run the risk of a court imposing terms you find
unsatisfactory.
In some cases, parents simply can't
communicate. In the face of hostility between parents, sometimes it is
preferable to avoid contact between the spouses. Many communities have
supervised access facilities, where parents can safely exchange children
in a child-friendly environment without the necessity of contact between
the parents. Supervised access facilities also provide an environment
for parents to visit with children under independent supervision, in
rare circumstances where supervision has been ordered by the court.
When a couple splits up, the husband and wife
-- or the unmarried spouses -- are expected to pay for their own needs
as much as possible. Both parents must contribute to take care of their
children. If you can't agree on support issues, a judge will decide how
much you or your spouse will pay. The judge has to review all the
information pertaining to the needs and earnings of each spouse, as well
as to the circumstances of each of the parties during the relationship
and since the separation, so a final decision may take time. In the
meantime, you can ask for a temporary order for support. If you receive
notice that you are being taken to court to settle a support issue, you
should contact a lawyer as soon as possible, as once a court orders an
amount of support to be paid, the order is difficult to change.
Your lawyer can advise you with respect to an
application of the federal Child Support Guidelines. The Guidelines have
been in place since May 1997 to bring certainty and uniformity to orders
for child support, and to provide tables of support payments which
depend on the gross annual income of the payor spouse. However, the
Guidelines legislation is more complicated than simply applying a table,
and there are many factors that can affect the quantum of support to be
paid, including the residency of the children, expenses for children
that can be claimed as add-ons in addition to the basic monthly quantum
of support, the age of the children, and considerations of undue
hardship.
For spousal support there is no guideline to
prescribe the quantum to be paid, and your lawyer can review with you
the many circumstances and factors a court will consider in determining
entitlement and quantum of spousal support.
Support enforcement
While support payments that are agreed
between the spouses can be paid directly between the parties, when a
court orders support, the support is enforced by the Family
Responsibility Office. This is an agency charged with the responsibility
of collecting support payments from payor spouses and delivering the
support payments to the recipient spouses. The Family Responsibility
Office has various means available to it to ensure payment, including
garnishment of wages, seizure of assets, G.S.T. rebates and tax refunds,
and suspension of driver's licenses. In the event of default, the office
can further seek a court order for the arrest and detention of a support
payor.
If you are paying support and the Family
Responsibility Office is unable to collect payments, the amount of
support you are required to pay will build in arrears. Ultimately, the
Family Responsibility Office will resort to all methods available to it
to collect those arrears, and you will be charged additional fees for
the efforts of the Family Responsibility Office in enforcing the
arrears. If you become unable to pay support that is provided for in an
agreement or court order, it may be possible to have the order varied.
It is important to see a lawyer immediately in the event that you are
unable to meet your support obligations to determine what remedy may be
available to you. Otherwise, you will be subject to additional costs and
litigation when the Family Responsibility Office turns its attention to
collecting the arrears that accrue over time.
The definition of "common law spouse" depends
on the circumstances, as there are many laws that provide rights and
entitlements to unmarried spouses who cohabit. A statutory definition
usually prescribes a minimum period of time for cohabitation for persons
to be considered "spouses." The same laws of custody and access apply to
unmarried couples with children. Common law spouses also have standing
to apply for support under the Family Law Act. There are, however,
differences in the law regarding property as applies to common law
partners. A lawyer will be able to advise you regarding support claims
and any potential claims you may have to an interest in the property of
your common law partner.
More and more couples who are separating are
choosing to enter into mediation with their spouse. A mediator is a
person who facilitates discussion between the spouses to determine
whether the parties can reach agreement without resorting to litigation.
The mediator attempts to help couples reach an agreement that works for
both of them, to obtain a "win-win" result, rather than resort to the
adversarial process of litigation. A mediator has no authority to impose
a decision on you if your fail to reach agreement. There are many family
law mediators. Some have expertise in dealing with child custody and
parenting issues, others are skilled in mediating property or support
disputes. If you are contemplating entering into mediation, it is
important to obtain independent legal advice. In the course of mediation
you may compromise in the interests of settlement, but it is important
to understand your rights and obligations at law before you enter an
agreement that will affect you and your family for the rest of your
lives.
Many courts have established a Family Law
Information Centre, which is generally staffed by a clerk or mediator or
advice lawyer who can provide information about the legal process, as
well as provide you with self help information and booklets about family
court and mediation options. Visit your local Family Court location or
see a local lawyer to get informed: the more you know, the more you can
alleviate the emotional stress of separation for yourself and your
children.
