FAQ's

Preparation for Marriage

We're getting married, and will live in the home that I own. My brother, who is divorced, says I would lose the house if we were to divorce. How can that be?

Syrtash: People spend a lot of time planning details of their wedding, but very little time planning for the legal changes that marriage brings about. An experienced family lawyer can go over your situation and help you draft a domestic contract that will be very helpful should the marriage break down. A consultation with an experienced family lawyer is well worth the fee, and may save you much time, money and grief in later years.

I'm thinking of remarrying. I've got kids; she's got kids. Should I be talking to someone about our situation? I don't want things to end up like they did last time.

Syrtash: Statistics show that most divorced people do remarry. Often, people who are remarrying not only have more complicated circumstances than people who are marrying for the first time; they also have the experience of what can go wrong in a marriage. They are often more ready to recognize the need to think clearly about the assets that they are bringing into the marriage. A carefully drafted domestic contract may provide a sense of security to the new marriage. It's important to deal with a lawyer who practices family law, because the law is constantly changing and only someone who deals with these situations regularly will have the experience to handle your situation.

I am getting married. Should I draw up a marriage contract and if so, do I have to do it before I am married?

Syrtash: To answer the second question first, in certain American states only agreements made prior to marriage are enforceable marriage contracts, hence the term pre-nuptial agreement or "pre-nup." In Ontario, a marriage contract can be made either before or during a marriage. In addition, if you are living together, you can draft a cohabitation agreement and designate that it become a marriage contract should you ever get married.

The general answer to the first question, legally speaking, is yes you should have a marriage contract. When you and your spouse enter into a marriage contract, you are essentially agreeing on the terms of your divorce, a difficult thing to contemplate either prior to, or shortly after, a wedding ceremony. On the other hand, it is at that point when generosity and fairness are most keenly felt, so it may, in fact, be the best time to negotiate an equitable agreement as to how the relationship will conclude. Each party will then know where they will stand in the event that the relationship ends. Generally speaking, a marriage contract will also make any divorce or separation easier to resolve. But marriage contracts must be drafted with care because the parties involved are trying to negotiate an agreement based on their assumptions about the future.

Separation

What is the importance of being separated?

Syrtash: One of the ways to establish marriage breakdown under the Divorce Act is to prove that the spouses have lived apart (have been separated) for at least one year immediately before the divorce judgment and were living separate and apart at the time the proceedings began. A divorce proceeding cannot begin until after the parties have begun separation, and cannot be finalized until that separation has been for at least one full year.

The date of separation is also important under the Family Law Act when calculating equalization payments. The date that the spouses separate is the most common valuation date, and is used to work out the equalization amount to be paid.

How do I know if I am legally separated?

Syrtash: There is no such thing as a "legal" separation because there is no such thing as an "illegal" separation. Parties are either separated or not. Under the Family Law Act, the parties must be separated and without reasonable prospect that they will resume cohabitation. Often one party thinks there may still be a chance of getting back together and working things out. To that party there still may be a "reasonable prospect" of resuming cohabitation. However, if it is clear that at least one of the parties is acting such that there is no prospect of them reuniting in the minds of a reasonable person, the couple will be regarded as separated.

How can I tell if I'm living separate and apart?

Syrtash: Parties who live in different residences are considered to be separate and apart. Parties who live under the same roof, and even in the same bed, might also be considered separate and apart depending on the circumstances. In those cases the courts will look at such things as if the parties have been having sexual relations, are continuing with a shared social life, eat together, share the same food in the kitchen, do laundry together, etc. This can be a delicate question. Usually the actual date of separation doesn't matter much unless there is a doubt if the parties were separated when the divorce proceedings were begun or if a year has passed so that the divorce can be finalized.

We've separated and I don't know anything about our bank accounts or our insurance. What can I do?

Syrtash:

The law provides that when a marriage breaks down there must be full financial disclosure on both sides so that informed decisions can be made in coming to an agreement about the issues arising out of your separation. A lawyer can advise you of the information you need and help you get access to documents in your spouse's possession. Since these situations can be very complicated, it's important that you get good legal advice as soon as possible.

My wife and I have been having problems. I know she has been to a lawyer and I think she's going to leave me and come after me hard. I would like to prepare myself for a divorce. We still live together. What should I do?


Syrtash:

(a) You should take all of your financial papers and records and put them in a place where your wife does not have access to them.
(b) You may wish to have your mail or bank statements re-directed to your office.
(c) Make a note of the return address printed on the envelope of any mail sent to your wife by financial institutions, but only if the envelope is in plain sight.
(d) Record any of your wife’s financial information that is in plain sight.
(e) If you have a joint account, consider closing it or at least monitoring it very carefully, reducing your contribution and eliminating any overdraft protection.
(f) Consider closing any joint lines of credit.
(g) Be careful about putting anything in writing to her, even conciliatory overtures. Invariably you will end up saying something about how this is "all your fault" and the note will end up as an exhibit in an affidavit.
(h) Get yourself a lawyer.

DO NOT DO ANY OF THE FOLLOWING:
(a) Open her mail – it is illegal to open another person’s mail.
(b) Lose your temper. No matter what is said or what is broken or what threat is made, do not lose your temper.

 

Divorce

Where can I learn more about Divorce?

Syrtash : In Canada, divorce falls under the authority of the federal government. It has passed a law called the Divorce Act. Because this is a federal statute, this means that the law for divorcing spouses is the same across the country. You can find the Divorce Act in the Statutes of Canada, Volume 4, Chapter D-3.4. These books are available at Law Libraries in the Court House in your town, the library of any law school and in municipal public libraries. There are also many excellent self-help books available at municipal libraries to guide you.

Is the Divorce Act available online?

Syrtash : Yes. If you want to read the Divorce Act online, check out http://laws.justice.gc.ca/en/d-3.4/47860.html. Another site to check out is the Access to Justice Network (ACJNet).

Why do I need a divorce?

Syrtash : You only need a divorce if you want to remarry. Otherwise you can technically live forever legally married to someone from whom you are separated.

What matters are dealt with in the divorce proceedings?

Syrtash : Obviously, bringing the legal relationship of marriage to an end is the chief function of the divorce proceeding. As well, the Divorce Act allows the court to deal with issues of spousal support, child support, or custody and access.

The division of property or other property issues cannot be dealt with under the Divorce Act. These must be dealt with under the legislation of the province or territory in which you live. In Ontario these are dealt with by the Family Law Act.

How do I go about starting divorce proceedings?

Syrtash : Divorce proceedings are started by filing a document called a Petition for Divorce or Application for Divorce, depending on where you live. The person asking for a divorce is called the Petitioner. The person being divorced is called the Respondent. If there are any complicating factors, such as children, substantial assets, businesses, or financial need that may require support payments for one spouse or children, you would be well advised to use a lawyer. If your situation is uncomplicated and it is unlikely that you and your spouse will disagree about the divorce and the division of your assets, you may conduct the proceedings on your own. It is still wise to consult briefly with a lawyer rather than use one of those “do it yourself” kits or go to someone who is not a lawyer. Often people miss limitation periods or are unaware of rights they didn’t know they had until long after they processed their own supposedly simple divorce and later found out what issues should have been properly resolved. Better safe than sorry.

Are divorce applications heard in family court?

Syrtash: It depends on where you live. Sometimes they are heard by Judges who hear other matters as well, such as Landlord and Tenant Act or commercial disputes. However, in Ontario and other jurisdictions, the Courts are becoming increasingly specialized and many of them have now been assigned solely as courts that will only hear Family matters. For example, in Toronto, Ontario all family matters are heard at the Superior Court of Justice (Family Division) at 393 University Avenue. But in other parts of Ontario, which are less busy the same Judge will have a diversified list of cases to hear.

 

How much does a divorce cost?

Syrtash: There is no easy answer to this question. In 2004, lawyers across Canada charged as little as $600 and as much as $1200 in fees plus out-of-pocket disbursements for uncontested divorce, assuming that the other spouse is easy to find and a few hundred dollars more if he has be found or a special court order has to be obtained because he can’t be found. There are “do it yourself” kits that reduce the cost substantially, but we don’t advise anyone to do it yourself.

A divorce involving parties without children can be as inexpensive as $1200. You will have to arrange to have the petition served on your spouse and this will cost a fee when you use someone to do this. You are not permitted to do this yourself. If you consult a lawyer, you may be quoted a set fee if the divorce looks straightforward. However, if unforeseen problems arise that lead to additional work for your lawyer, then the set fee may not hold. If your divorce is bitterly fought between the two of you, then it could take months (or years) to resolve, many court applications, and possibly a trial. In that case, your lawyer will charge you according to his or her hourly rate. You will be told of this rate when you first see the lawyer and you will probably be billed from time to time as your case goes on. Divorces like this may cost thousands of dollars.

 

What are the grounds for divorce?

Syrtash: In Canada there is only one ground for divorce: breakdown of the marriage. The most common way to establish a breakdown of the marriage is to prove that the spouses have lived apart (have been separated) for at least one year immediately before the divorce judgment is granted and were living separate and apart at the time the proceedings began. That is, if you are using one year of separation to establish the breakdown of the marriage you can't begin the proceeding until after the spouses are already separated and can't finalize it until at least one full year of separation. But you don't have to wait a year of separation to get the proceedings started.

From time to time one of the parties wants to get the divorce without waiting the year from date of separation. This can only be done if adultery or cruelty can be established. Usually raising one of these to show a breakdown of the marriage will cause more upset and aggravation than it is worth. If the other side simply decides to deny the allegation you may have converted an uncontested divorce into a contested one and it likely won't be finalized within the year anyways. Almost all divorces begun nowadays show breakdown by one year separation.

I have been separated for over a year and have met someone new. If he and I sleep together, is that still adultery?

Syrtash: Yes. If your ex-spouse finds out and does not approve of or condone the adultery, he or she can still sue you for a divorce based on adultery.

What is an "uncontested divorce"?

Syrtash: Most often the divorce itself is not contested. In those cases the party being served with the divorce documents may chose not to oppose the request for a divorce and not file any responding material. It is no longer seen as a sign of shame if the other person "gets" the divorce. This usually happens where the parties have already negotiated the terms of their separation and have a separation agreement, marriage contract, or cohabitation agreement. The divorce judgment in these cases may include the terms already agreed upon or not make any reference to anything but the divorce itself.

If you are the person being served with divorce documents and think that everything has been agreed upon, you should be sure you have it in a proper agreement before allowing the divorce to go through uncontested. This is one of those situations where you should have advice from a family law lawyer before deciding whether to let the divorce go through uncontested. Just thinking you and your spouse have agreed upon something may not make it so, even if the two of you are in agreement.

Can I get my divorce if there are still things we haven't settled?

Syrtash: Yes. The Divorce Act makes a distinction between the act of getting people freed from the legal relationship of marriage and finalizing the various other issues that may still exist between them, including spousal support, child support, or custody and access. These other things are called collateral issues and they can be dealt with after a divorce or as part of the divorce proceedings, but after the divorce itself has been granted. This allows parties who want to remarry to do so without forcing them to first settle the corollary issues.

I want to remarry in my own religion but my spouse is preventing it. Is there anything I can do about this?

Syrtash: Yes, the Divorce Act deals with cases where the parties are before the court in a divorce proceeding and one of the spouses is refusing to remove a barrier to the remarriage of the other spouse in that person's religion. If the removal is within the first spouse's control the court may, subject to terms it considers appropriate, dismiss any application filed by the refusing spouse or strike out any of the pleadings or affidavits of that spouse. That can be quite severe if the other spouse is seeking or opposing support or such things as a division of property or an equalization payment.

The Divorce Act does not apply where the power to remove the barrier to a religious remarriage lies with a religious body or official. The court may also refuse to exercise its jurisdiction where the refusing party files an affidavit indicating genuine grounds of a religious or conscientious nature for the refusal and satisfies the court that there are genuine grounds of a religious or conscientious nature for refusing to remove the barrier.

Is it legal for me to tape record phone calls with my spouse?

Syrtash: In Canada it is legal for one person to record conversations they are having with another person without that other person’s consent if you are using your own telephone line and not tampering with someone else’s telephone. The tapes are also admissible in evidence but there are certain evidentiary and practical rules that should be followed. For example, use only good equipment and know how to use it; practice using the equipment ; use only one tape per phone call, DO NOT TELL ANYONE YOU ARE TAPING PHONE CALLS, etc. However, before doings so, check with your lawyer to make to obtain guidelines on how to successfully and legally tape calls.

I want to remarry. How long does it take to be divorced?

Syrtash: Assuming that this was the first marriage for each of you, that you were and continue to live in Ontario, that there are no children or other issues that your spouse might contest, and your spouse is expecting the petition and will cooperate, you can expect to be divorced at a minimum of between three and four months.

After the petition is prepared it is sent to court where it is given a file number. That same day, the court sends a form to Ottawa requesting clearance from Ottawa to grant the divorce. That clearance will be given provided there are no other divorce cases involving the two parties. If there are no other cases, the Central Registry will issue a Clearance Certificate and send it back to the court where the divorce was issued. It takes a minimum of six weeks and an average of eight weeks for the Registry to send the clearance certificate to the court. A court will not grant a divorce unless the clearance certificate has been received.

Twenty-one days after the day the other spouse was served with the petition, the petitioner may move for a divorce judgment, by swearing an affidavit. The affidavit and other material is then sent to court, where it is processed and (if the clearance certificate has arrived) placed in a box to be sent up to a judge for review. It generally takes a minimum of two to three weeks before a judge reviews and signs the divorce judgment. If the affidavit arrives before the clearance certificate, it may be rejected or the court will wait to process it until the clearance certificate arrives.

Once a judge signs the divorce judgement it takes a further month before the divorce takes effect. The entire time line from petition to judgment takes an average of three and a half months.

In urgent circumstances, a lawyer can arrange to see a judge and ask the judge to sign the divorce that day and make it effective the day it was signed. Technically, the circumstances have to be not of the client’s making. An impending wedding is not considered a sufficient reason to make a divorce effective immediately. Lawyers can sometimes convince judges otherwise, but judges are becoming increasingly reluctant to grant "quickie divorces."

In addition, there are several unforeseen circumstances that can further delay the divorce. Some of those include: a civil servant’s strike or slowdown, if the parties were married outside the province and one or the other was divorced at the time of marriage or if there are difficulties serving the other spouse.

I have no idea where my spouse is. How can I get a divorce now?

Syrtash: You must either serve your husband with the Divorce Application so that he gets a copy personally, or get a judge to give you an order allowing you not to serve him or to serve him in some other way. Your lawyer will ask you to do some leg-work here. You should contact any of his friends, relatives or employers that might know where he is to see if they can put you in touch. You should also try to contact him at his last known address.

Your lawyer will put the results of these inquiries in a document called an affidavit and ask you to swear to the truth of the information in the affidavit. It will then be filed at the Courthouse and your lawyer will make an application to a judge for directions about what to do next to try to bring the divorce proceedings to your husband's attention. The judge will want to see from the contents of your affidavit that you made a genuine effort to locate him. The judge might do away with any need to get the petition to your husband or he or she might order that your lawyer mail a copy to your husband's last known address or even advertise a notice of the petition in the local newspaper in the community where your husband was last known to have been. Usually, the judge will also order a waiting period of about 30 days after mailing or publication to give the spouse time to respond. Once the waiting period is over, if you have not heard from your husband, your lawyer may proceed with your divorce.

How can I avoid having a bad divorce?

Syrtash: If you have not yet separated but the separation seems inevitable, take a few seconds to consider your options. Nearly all relationships end involuntarily either through death or separation. The end of a relationship is like a death. Anger or resentment will not revive the marriage, so leave those feelings behind or you won’t be able to move forward.

If you are not in court do what you can to keep it that way. Use mediation, use a collaborative lawyer, talk between yourselves, call upon a religious advisor. Once you are in court, you are like a passenger in a car. You want to go somewhere and you’re giving directions, but someone else is driving. You do, however, have to pay for the gas.

If you cannot avoid court, do what the judge tells you to do. Obey every court order or if you don’t feel you can obey every court order, then appeal those that you cannot follow. Provide every piece of disclosure you are ordered to provide. Do not "bad mouth" your lawyer or your spouse’s lawyer to your spouse. Make your own decisions about how you want the case to go. Keep on good terms with your lawyer and your friends.

 

Child Support:

Who pays child support?

Syrtash: A spouse or former spouse may be ordered to pay child support to the parent who has the custody or daily care and control of the child. An order for support can be made even in the absence of any actual order for custody or joint custody.

The party ordered to pay child support does not have to be the spouse or former spouse of the receiving party. Under the OntarioFamily Law Act, any person who has shown a “settled intention to treat a child as a child of his or her family” may be ordered to pay support. Recently the Ontario Courts have ruled that grandparents, under certain circumstances, may also be liable for child support.

How is Child Support Calculated?

Syrtash : It is usually based entirely on the gross annual income of the parent who pays it and the number of children in the care of the other parent, depending on the province where the children reside. Every province has a different pay scale according to a national grid called the Child Support Guidelines that shows how much the paying parent is obliged to pay.

What are the Child Support Guidelines?

Syrtash: The Child Support Guidelines were introduced in March of 1996 by the Canadian Government as one method of ensuring that family support obligations were respected. The Guidelines consist of a set of rules and tables for calculating the amount of support that a paying parent should contribute towards his or her children, and were designed to make the calculation of child support fair, predictable and consistent for the benefit of the children.

The provinces and territories share responsibility with the federal government for matters relating to child support. In general, the federal Divorce Act sets out the rules for setting child support amounts if you are already divorced or planning to divorce. Provincial laws apply if you have never been married or are separated, or planning to separate, but have decided not to divorce.

It should be noted that the Guidelines are exactly that - guidelines. Child support amounts can be adjusted at the discretion of the court to recognize a child’s special expenses, or to prevent undue financial hardship for a parent or a child in certain circumstances. For further information go to the Government of Canada Federal Child Support Guideline Website: http://canada.justice.gc.ca/en/ps/sup/grl/glp.html

 

What is interim child support?

Syrtash: “Interim child support” means an order for support that last only until the court makes a final order. The intention is to sustain the recipient party until the final hearing, and does not provide for all of the things that a final order might take into consideration. Sometimes the interim support order will become the basis for a settlement, or remains the only order made, because the parties cease to continue with litigation. The time between the interim and final order may also be substantial, thus making the interim order one that should be treated seriously.

Can we make our own arrangements for child support?

Syrtash : Parties are free to enter into their own agreements for child support payments, but it is advisable to have a lawyer look over any agreements to ensure that both parties are being treated fairly. A lawyer can also recommend changes or additions to an agreement in order to cover issues that the parties did not consider. Issues such as appropriate cost of living, extracurricular expenses, or schooling costs are only some of the things that the parties may not have considered that should be taken care of in an agreement.

An agreement cannot prevent the court from assessing the situation and making an order to replace the agreement. The court always has the right and discretion to consider and remedy a situation as it sees fit.

How are child support orders enforced?

Syrtash : In Ontario, all orders for child or spousal support are registered with the Family Responsibility Office. All payments are made to the Office, which then send the payment to the recipient. Defaults are dealt with directly by the Office, although every province or territory has its own enforcement provisions.

Parties in Ontario can jointly withdraw from the direction of the Office, and then any payments are made between the parties. The recipient then becomes responsible for looking after any defaults. Some individuals prefer looking after their own enforcement rather than leave it to the government to collect.

Does bankruptcy affect child support payments?

No, although a bankruptcy can wipe out other debts, it does not effect a child support obligation. Often the person paying support will threaten to file for bankruptcy unless the recipient is more cooperative. However, in reality a bankruptcy would actually alleviate some of the pressure from the paying party by eliminating outside debts, thereby making more money available to pay child support.

Is there a connection between child support payments and spousal support payments?

There is no direct connection. These are two separate calculations, two separate payments and two separate obligations, and the quantum of child versus spousal support is often a point of strong negotiation between the parties.

The Child Support Guidelines recognize that there may not be enough money available to pay spousal support once the child support is paid and the former spouse will then have to wait until the child support has ended to determine if the issue is worth raising.

 

Spousal Support

Who is a "spouse"?

Syrtash : Under the Divorce Act, only someone who is married and part of a divorce proceeding is eligible to obtain an order for support, or any other relief. As well, the two spouses must be of opposite sexes. In Ontario, however, spousal support may be ordered for people who are not married.

Under the Family Law Act, a "spouse" means either a man or woman who are married to each other or have entered into a marriage that is void or voidable if entered into in good faith by the party making a claim. This includes polygamous marriages if celebrated in a place where such marriages are recognized as valid. The Family Law Act also considers parties who have cohabited for a set period of time with or without children. This is considered a common law marriage. A recent Ontario court decision also determined that same sex couples can be considered to have been involved in a common law marriage, and therefore may qualify for support under the Family Law Act.

Are spousal support payments taxable?

Syrtash : Yes, every person who receives spousal support after separation must include that as part of his or her income if it is paid on a periodic basis pursuant to the terms of a court order or written agreement. Support payments are deductible from the income of the payer. Only child support payments are non-taxable. There are no plans to change the taxability of spousal support payments.

How do I enforce a spousal support payment?

Syrtash : Like enforcement of child support, in Ontario all orders for support are registered with the Family Support Plan. Payments must be made to the Plan which then sends the payment to the recipient. Defaults are dealt with by the Plan, although every province or territory has its own enforcement provisions. Recently in Ontario there has been a huge backlog such that payments which have been made by people ordered to make them have been received but not processed or forwarded to the recipient for weeks or longer. The provincial government claims to be sensitive to this problem and has declared its intention to clean it up.

Will a bankruptcy affect spousal support payments?

Syrtash : No, support payments are not affected by a bankruptcy. They remain in full force and effect.

 

Custody

Who has custody of the children?

Syrtash : To begin with, both parents have custody of the children. This is not an issue until one of the parents, or some other person, wants to remove custody from the other parent or from both of the parents. Until the court makes an order or the parents enter into an agreement, both parents have the same "rights" to custody of their children and neither has more "rights" than the other.

Who can ask for custody?

Syrtash : Under both the Divorce Act and the OntarioChildren's Law Reform Act either parent or any other person may apply to the court for an order respecting custody of, or access to, a child. This allows grandparents, common law step-parents, other family members or friends to apply for custody where they feel it is appropriate.

If the application is under the Divorce Act, the application may only be with respect to a child of the marriage and any application by someone other than a spouse requires the leave of the court. These requirements don't apply under the Children's Law Reform Act. Each of the provinces and territories have their own legislation dealing with child custody.

 

What is "interim custody"?

Syrtash : An interim custody order is a short term custody order that has effect until the final order is made. It is usually sought by one parent right after separation so that the person with the children will be secure in the knowledge that the other parent cannot remove them claiming to have as much "right" to the children as the other parent.

As with interim support orders, an interim custody order may have effect for a long time. In the nature of things, what a party may have been prepared to accept because it was only intended to last a short while may end up lasting long enough to become what the court will consider to be the "status quo." In that case the interim arrangement may become permanent without one party realizing it.

 

What principles apply to custody?

Syrtash : The over-riding principle is the “best interests of the child.” The courts are concerned with what is best for the child and not what is best for, or most convenient for, the parents. The past conduct of the person requesting custody is not of any significant unless it is relevant to the ability of that person to act as a parent for the child.

What rights does the person with custody have?

Under the Children’s Law Reform Act, the person with custody has the rights and responsibilities of a parent in respect of the child, and must exercise those rights and responsibilities in the best interests of the child.

What is "joint custody"?

Syrtash : Joint custody is an arrangement that leaves each parent with exactly the same rights of custody as they had before they separated. This only works where the parents can get along with each other and work together in the interests of the children. Many times the parents will agree that there is to be joint custody, or the court may order it, but one of the parents is named as having the primary care and control of the children or the agreement or order sets out that the primary residence of the children will be with one of parents.

It is generally felt that it is in the best interests of most children to have as much stress-free contact as possible with each of their parents. Sometimes the circumstances allow for the children to live with one parent for part of the week and with the other for the rest of the week, or to live for one or two weeks with one parent and then switch. Any form of shared parenting that works is likely to be acceptable to the courts and parents are encouraged to put their own differences aside when it comes to dealing with the children.

Can I move with the children if the court has given me custody?

Syrtash : This is an issue of mobility rights. The best interests of the child will prevail when the court considers whether or not to allow a custodial parent to move with the children. Where a parent wants to move away because of a better job opportunity, to live with a new spouse, or to be closer to family, the courts will primarily consider the impact that such a move would have on the child. If there is an indication that there will be a negative impact on the child, the court may refuse to allow the child to be moved.

My son is 10, why can't he talk to the judge or swear an affidavit?

Syrtash : First he is too young. Your son does not want to go to school, but he does it because you tell him to. He doesn’t want to go to the dentist or get a haircut but he relents because you have authority over him and because he wants to please you (or at least doesn’t want to make you angry). Maybe a child on a witness stand or in an affidavit will do what you want him to do as well. You don’t let a child choose his doctor, choose his diet or choose how late to stay up at night. So how can he choose which parent he wants to live with?

Second, there are ways your child’s wishes can be presented before the court either through an assessment by a social worker or through the appointment of a lawyer to represent your child. The older the child is, the more persuasive those wishes will be to the court.

Is it true that a child can decide which parent he/she wants to live with at age 14?

Syrtash : There is no set age for a child to have attained before a court will honour or respect his/her wishes. Parents often believe that there is a magic age where a child can just decide on his/her own to move from one parent to another.

Where a custody and access order exists, an access parent who does not return the child to the custodial parent is in breach of that order. The correct thing for the access parent to do is to bring an application to the court to vary the custody order before the child moves. Many parents don’t want to do this because they don’t want to spend the money or they don’t think they have to get a new court order.

There is no guarantee that a court will respect the wishes of a 14-year old or a 15-year old, although clearly these wishes will be given a good deal of consideration. The court may want evidence as to the child’s maturity or evidence that the child is not being pressured or bribed to change residences. A 13- or 14-year old may want to live with a parent for any number reasons, some of which may not be beneficial to the child, and a court will want to know what reasons the child has for wanting to change his or her residence. The wishes of a 14-year old who wants to live with the father because the father doesn’t make her go to school are likely not to be given great weight by a court. If, however, a child of 14 absolutely and steadfastly refuses to return to an custodial parent for any reason, a court may decide it would be more harmful to force a child to live with that parent than to respect the child’s wishes. The reasonably expressed wishes of a regular 14-year old of average maturity will be given great weight, but will not necessarily be determinative of the issue.

 

Property

Who owns the property in our marriage?

Syrtash ; There are many rules governing property in a marriage. Subject to certain qualifications, each person owns the property in his or her name. Where something is bought which doesn't involve title documents, the item will be regarded as owned by the person who paid for it. If you got the property as a gift, even though you didn't pay for it, it is considered yours. If it was bought from a joint bank account or on the understanding that it was to be owned together, then it is jointly owned by you and your spouse.

Sometimes property may be bought with one spouse's money and put into the name of the other spouse but the court will conclude that it is really owned jointly by the parties or by the person who paid for it. This happens when the non-titled spouse claims an interest because of a trust. The law dealing with trusts (there are constructive trusts, remedial constructive trusts and resulting trusts) has become quite complex as it relates to dealing with property acquired during the marriage. However this approach has been used by the courts to give property rights to non-married spouses which they would not otherwise have.

The courts have also assisted non-married spouses by applying the principles of unjust enrichment to try to remedy a situation where one person will end up with a benefit to which they may be entitled in law but not in fairness. In these cases the courts can look to what is referred to as the principles of equity.

How does family property, or matrimonial property, get divided?

Syrtash : Each province and territory deals with the division of property upon separation and divorce differently and you should consult with a family law lawyer in your jurisdiction. In Ontario the Family Law Act governs how people deal with property upon separation and divorce. Generally, property is left in the hands of the owner and not dealt with directly. Instead, equalization payments will be ordered to ensure an equitable division between the parties.

What is an "equalization payment"?

Syrtash: When spouses in Ontario separate there is no division of property - but there is a calculation made to determine how much money the person whose net asset value has increased most during the marriage should pay to the other so that they each end up with assets of equal value for the period of their marriage. This payment is called an equalization payment.

How is the equalization payment calculated?

Syrtash: An economic snapshot is taken of the value of the assets owned by each party on the date of the marriage and on the date of their separation. Everything is counted and valued as at each of those two dates.

Once you have the values of the things you brought into the marriage (less any debts) you subtract that from the value of the things you owned at separation date, unless you got them during marriage as a gift or inheritance (after subtracting your valuation date debts) and end up with your Net Family Property (NFP). Do the same with your spouse's assets and debts to figure out his or her NFP. Then you deduct the lower NFP from the higher one and divide the difference in half. That figure is the amount of the equalization payment because, once it is paid by the richer to the poorer party, they will each end up having assets of the same value.

This is complicated by the fact that there are certain things that aren't included in the calculations. The value at separation date of any inheritance or gift received by a party after marriage is excluded from his or her NFP. If you inherited $10,000 from your great aunt a few years before separating and spent it on a vacation or paid off the mortgage, none of it is left at separation and there is nothing to value or exclude. But if you put that money into a separate bank account, bought a painting or invested in stocks with it you could then value the bank account, painting or stocks as at the date of separation and would be able to exclude that amount. Sometimes the amount of the exclusion is greater than the value of the gift or inheritance when you got it because it has gone up in value in the meantime. There are other exclusions to keep in mind and special rules setting out when you can or cannot deduct the value of the matrimonial home in your name. Because of the importance these deductions and exclusions will have on figuring out any equalization payment, make sure you contact a knowledgeable family law lawyer to be clear about your rights and entitlements.

What is a "matrimonial home" and does it get any special treatment?

Syrtash: Under the Ontario Family Law Act a matrimonial home is every property in which a person has an interest and that was ordinarily occupied by the person and his or her spouse as their family residence at the time of their separation. There can be more than one matrimonial home. For example, a vacation home may also count as a matrimonial home.

The matrimonial home in Ontario qualifies for special treatment in two ways. First, regardless as to whose name it is in, both spouses have equal rights to the possession of the matrimonial home. That right continues until the parties are no longer spouses or until there is a court order or agreement providing otherwise. No one can throw out the other spouse just because one party owns the house. Second, if a home is a matrimonial home at the date of separation and was the same home lived in at the date of marriage then the owner cannot deduct its marriage date value when calculating his or her Net Family Property. It's valuation date value is included as a valuation date asset but without any corresponding deduction. This situation doesn't come up often, but when it does it can have a huge impact.

How are pensions valued in calculation of property and equalization?

Syrtash: Pensions are considered property and must be valued when calculating NFP and an equalization payment. Because they are difficult to value, the help of an actuary is required. A pension is worth more than the value of the contributions made to it, and its value changes depending upon how much longer the pensioner will be working, whether there will be early retirement, if the pension is indexed, or whether the calculation should be made as if the pension member was terminated at the valuation date.

Some pensions are governed by federal legislation, and others by provincial or territorial legislation. Different rights may apply if you are separated at the time the pension becomes payable or not.

WARNING and GENERAL DISCLAIMER: The contents of these Frequently Asked Questions are intended as general legal information only. If you have a personal problem, please consult a lawyer. Neither John Syrtash nor the firm of Garfin Zeidenberg LLP shall be held liable should any individual choose to rely upon the information provided herein for the purposes of legal advice.

«back to top


 
Garfin Zeidenberg LLP




Book - Religion and Culture in Canadian Family Law

“Religion & Culture in Canadian Family Law”
by J. Syrtash
Published by Butterworths in 1992, this is the only book of its kind in Canada by critically acclaimed author John T. Syrtash. It received rave reviews at the time and is only available at public and law libraries across the country.


Nothing on this website should be relied upon as legal advice. All information on this website is general in nature and neither Garfin Zeidenberg LLP nor John T. Syrtash shall be held legally liable in the event that any party relies on any information recited herein to their detriment. All readers are strongly advised to seek the counsel of a highly experienced family law lawyer in their jurisdiction before taking any steps in respect of their questions or problems.