FAQs

Question: What about splitting my spouse’s pension?

A Court can order a spouse to satisfy an equalization payment by transferring a lump sum out of a pension plan if it is appropriate to do so, as per sections 9 and 10 of the Family Law Act. In making the determination about the transfer to one spouse from the other’s pension plan and the amount to be transferred, if any, the Court may consider the following factors, among other things:

The nature of the assets available to each party;

The proportion of a spouse’s net family property that consists of the value of his or her interest in the pension; and

The resources available to each party to meet their needs, and the desirability of maintaining those resources.*

*This brief summary is not meant to be relied on as a complete source of information on this issue.

Question: My spouse and I disagree on our date of separation. What are the consequences?

The date of separation is usually the date we lawyers call the “Valuation Date” or “V-Day”. Except in rare cases, such as where a party proves that they have an equitable or trust ownership interest in a particular piece of property, there is no sharing in the value of assets or in the debts or liabilities incurred by a party after V-Day. The value of the property, liabilities and debts that exist on V-Day will be shared if the parties are married.

Sometimes the result can be bad for you, such as when your spouse has incurred significant debt prior to the V-Day and sometimes the result is good, such as when an asset has significantly risen in value.

You can’t pick the valuation date based on what is most advantageous to you. Discuss with your lawyer the criteria a court will consider when making the determination as to what is the correct date of separation. Give some thought to these criteria before selecting the date and pick the date that best reflects the criteria for establishing the date of separation.*

*This brief summary is not meant to be relied on as a complete source of information on this issue.

Question: What is child support and who must pay it?

The parent the child lives with most of the time usually has most of the expenses of raising the child. The other parent must help with those expenses by paying money to the parent the child lives with.

This payment is called “Child Support” . The parent who pays child support is called the “payor” parent.

Every parent has a legal duty to support their dependent children to the extent that they can.

Generally speaking, the monthly child support amount will be based on the Federal or Provincial Child Support Guidelines, and be guided by the number of children for whom support is payable and the income of the support payor.

A parent has a legal duty to support his or her child financially. This is true even if that parent was never married to, lived with, or had an ongoing relationship with his child’s other parent.

Although a parent has a legal duty to support his or her child, the only way to force someone pay, who refuses to do so, is by obtaining a court order*.

*This brief summary is not meant to be relied upon as a complete source of information on this issue.

Question: Should I Attend Mediation?

Mediation is a way for people to settle disputes or lawsuits outside of court. In mediation, a neutral third party – the mediator – helps the disputing parties look for a solution that works for them.

In family law, when dealing with property and/or support issues, it is vital that you have complete financial disclosure and that you have been advised of your legal rights by a lawyer before engaging in mediation, because the mediator does not give the parties legal advice.

Mediators do not decide cases or impose settlements. The mediator’s role is to help the people involved in a dispute to communicate and negotiate with each other, and to try to find a resolution based on common understanding and mutual agreement.

*This brief summary is not meant to be relied on as a complete source of information on this issue.

Question: I am not married but I am living “common law”? What happens to my property if my partner and I separate?

Your rights with respect to parenting, and support are similar to those of married couples, but the fact that you are not married may make your property issues more complex. Whether or not you have an entitlement to a division of property is a very fact driven analysis, and one that should be discussed with your lawyer to determine whether you have a good claim.

The key feature of Part I of Ontario’s Family Law Act is that spouses are entitled to an equal share of the total financial product of their marriage. The basic premise is that marriage creates an economic partnership and that both spouses make a vital and essentially equal contribution to the economic viability of the family unit and hence to the acquisition of wealth. Ontario has not extended this partnership model to unmarried couples.

For now, the system of separate property continues to apply in Ontario to determine the property rights of common-law partners. On separation, determination of which partner owns any property acquired by either of them during the relationship is determined, in the first instance, by the ordinary property rules. Paper title (who, if anyone, is registered as the owner) and who paid for the property are very influential in determining legal ownership.

However, common-law partners now have access to equitable rules and remedies that may be of assistance to the partner who does not have legal ownership of the property. For example, using a resulting trust, a court can award a non-titled partner an interest in property where he or she contributed directly to the purchase price of property held by the other partner. Also, the courts have developed the concept of unjust enrichment as a cause of action in the context of property disputes between unmarried persons. What is important to understand is that unlike how it is with married couples who separate, for common law couples the goal is restitution, not equality. The court does not presume equal sharing, in the result, it strives only to achieve restoration. Restitution is restoring a benefit that it would not be just for the other party to retain.

*This brief summary is not meant to be relied on as a complete source of information on this issue.

Question: I just want to enter into a Separation Agreement with my ex, can I do that?

There is nothing stopping you from creating an agreement with your ex-spouse and signing it. All will likely be well, so long as both of you follow it. But, what if your spouse refuses to pay the support you agreed to or refuses to give you your child on Christmas?

What you really want, is an agreement that will stand up to the bad times, when you and your ex do not see eye to eye, and you have to rely on the agreement to say “you have to do X or you have to give me Y”.

If the Agreement is created properly, it will be legally binding and enforceable. To be legally enforceable, certain contractual cornerstones are required. Once you have met the criteria of a binding agreement, you can be very creative with how a case is settled.

Working with a lawyer will assist you to cover off the legal criteria necessary to enter into a binding and enforceable separation agreement.

*This brief summary is not meant to be relied on as a complete source of information on this issue.

Question: How do I choose the right Family Law Lawyer?

Lawyers who practice exclusively in the area of family law often have far more expertise, training and knowledge about how to handle the types of issues that will come up in your case, which can be of great benefit to you. Before you make a decision:

Ask the lawyer what portion of the lawyer’s practice is devoted to family law

Ask the lawyer about her years’ of experience in family law, and their experience in cases like yours.

Research the lawyer’s reputation and experience. Look at the lawyer’s website and search his or her name in available online search engines;

You should also inquire whether the lawyer has any trial experience. Although, most of the family law cases settle outside of the court, you should make sure that the lawyer has the skills and confidence to take a case all the way through trial if you don’t get what you want out of court. Transferring a file to another lawyer can be quite expensive.

Being able to communicate clearly and effectively on paper, face-to-face, via Zoom and over the telephone is crucial. This is because the role of a lawyer largely involves being able to advise and negotiate effectively with their client, the other side and the court. A good lawyer is not only knowledgeable about the law but is also skilled in the art of storytelling. He or she must be able to engage, influence and persuade.

You will have the opportunity to check out the lawyer’s communication style during your initial consultation. Pay close attention to how they communicate with you. You should feel good after your encounter with the lawyer, with a realistic view of your case.

The lawyer’s job is, to a large extent to:

Furnish you with information about your potential choices and the consequences

of those potential choices;

Offer you a safe and confidential forum for testing the reality of your perspective;

Help you identify, explore, organize and translate your problem so that it fits into

the legal framework and to then advocate for you (be your voice) in the legal

arena so that your problems can be addressed within that framework;

When you are unsure of yourself or of your objectives, provide you with the proper support to do so.

Be wary of “cheerleaders”. A good lawyer will always be candid with you about your chances in obtaining an outcome on a particular issue. If it sounds too good to be true or like you are going to get everything you want, be very wary. Good lawyers also don’t hesitate to tell you if you are doing something that will have negative consequences for your case, or if you are wasting your time and money.

Having a lawyer who just tells you what you want to hear is not helpful and can in fact be disastrous, financially and emotionally.

A lawyer should be dedicated, driven and passionate about clients and their cases. The chemistry between you and the lawyer is very important. You should feel comfortable approaching and talking to your lawyer, which means that the lawyer must have a level of interpersonal skills that work for YOU. No matter how experienced and well recommended a lawyer is, if you feel uncomfortable with her, it will be difficult to work with him or her effectively. Trust your instincts and look for a lawyer whose personality is compatible with your own.

LISTEN TO YOUR GUT!

*This brief summary is not meant to be relied on as a complete source of information on this issue.


Family Law Glossary

Family law uses some commonly used legal terms and other advanced vocabularies. Below is a quick primer on the definition of some commonly used words in family law to help you understand them better. Note that these definitions are for reference purposes only and should not be taken as legal advice.

AUTHORIZATION AND DIRECTION: Is a form signed by a client which permits a third party to send documents to someone or to speak with someone.

ARBITRATOR: Is a neutral third party hired by the involved parties to conduct an arbitration or a settlement of a dispute.

ARBITRATION: Is a process of dispute resolution which is voluntarily entered by the involved parties in place of the court.

AWARD: Is the decision given by an arbitrator.

CHARTERED BUSINESS VALUATOR: Is the term for financial professionals who are retained to assist in giving value to someone’s business or income.

CHILD SUPPORT: Is a payment that is sent from one parent to another for the benefit of a child.

COHABITATION AGREEMENT: Is an agreement entered into by two individuals who are living together or who are about to live together. This agreement addresses issues concerning spousal support and properties in the event of relationship breakdown.

FINANCIAL DISCLOSURE: Is information about an individual’s financial details during a particular time period and/or specific dates.

FINANCIAL STATEMENT: Is a standard form that sets out a person’s financial position during a particular time period and/or specific dates.

ENDORSEMENT: Are comments and/or reasons, and/or a decision by a judge that is written after an appearance in court.

EQUALIZATION: Is the payment from one party to the other party to match or balance the net family properties of each party.

FILED: Is the term used to mean that a document in question has been filed with the court.

FRO: Stands for The Family Responsibility Office

MARRIAGE CONTRACT: Is an agreement between two individuals who are married or who are planning to get married. This contract addresses potential issues such as spousal support and division of properties in the event of marriage breakdown.

MEDIATOR: Is a neutral third party hired by the involved parties to facilitate mediation.

MEDIATION: Is an alternative process for dispute resolution which is entered into by the parties as a means to resolve their disputes.

MINUTES OF SETTLEMENT: Is a document signed by both parties to signify that the parties have come to an agreement.

NET FAMILY PROPERTY: Refers to the net worth of the family that is assessed to calculate the equalization payment.

ORDER: Is an endorsement that is entered and issued by the court.

PARENTING AGREEMENT: Is an agreement that sets the parenting terms as agreed by the parties involved.

PARENTING COORDINATOR: Are professionals who help parents in implementing issues that result from a parenting plan.

PARTY: Is a term that refers to a client or their spouse.

SERVED: Is a term that means that a document has been formally delivered to a party in accordance with the rules of family law.

SELF-REP: Is a term that refers to the practice of when a party is not represented by a lawyer.

SEPARATION AGREEMENT: Is an agreement that finalizes issues resulting from the breakdown of the relationship. This agreement addresses issues such as property division and child support.

SPOUSAL SUPPORT: Is monetary support paid from one spouse to another for compensatory reasons or to fulfill the terms of a contract or agreement.

TRAVEL CONSENT: Is a letter of authorization that states that one party is permitted to travel with the children.

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