Generally, the accumulation of the value of the total family property is to be equally divided upon separation. Ownership doesn’t necessarily change: one person makes a monetary payment to the other, in order to equalize the property. Some property may be excluded from the calculation, such as gifts from third parties, inheritances, lottery winnings; although, certain conditions must be present. To calculate net family property including real estate, work pensions, bank accounts and investments, you must also deduct the debt and liability. We help you determine how to calculate the total net family property and the equalization payment.
Not everyone may receive spousal support. First, the spouse must prove he or she is entitled to receive support. Secondly, there are bases upon which the courts determine if the spouse should receive support: (1) compensatory basis, (2) non-compensatory basis, and/or (3) contractual basis. Once entitlement is established the amount and the duration of support are determined. Child support, the length of the relationship, earning potential, income levels, and other factors, all help determine the range of support and the length it is payable. The Spousal Support Advisory Guidelines are not binding, but provide for a low, mid, and high range of support, which often provide a good starting point. In some cases it is appropriate to set a termination date, while in other cases it is more appropriate to set a date to review support. Spousal support might also be a lump sum rather than periodic payments.
Child support is for day-to-day child-related expenses. It is not the right of the parent, but the right of the child. The parent who is primarily caring for the child (or children) will receive a monthly amount determined by the Child Support Guidelines. If the child resides with both parents relatively equally, an analysis must be made to determine the appropriate amount of child support. Special or extraordinary expenses are those beyond day-to-day child-related expenses, like rep sports, equestrian, specials needs cost, etc. These are shared by the parents in some proportion.
Often where a final Order or Separation Agreement is in place, outlining the terms upon which the parties are to proceed with respect to children, division of assets and support, a party will find that a subsequent change in circumstances frustrates the terms of the Order or Agreement, or that for some other reason a variation of the Order is appropriate. In those cases, a variation of the terms is required. However, in order to warrant such a change there must have been a “material change” that had it been known at the time the Order or Agreement was made, the term(s) currently in place would not have resulted. This process does not have to be difficult or protracted, and we strive to make such changes in the most amicable fashion between the parties. However, a Motion to Change may need to be filed in court, with supporting financial information and evidence to support the requested variation. This is a common occurrence in the family law realm and our expertise can help make this process easier.
The terms custody and access are commonly misunderstood. "Custody" refers to parental decision-making in relation to children in four major areas: health, religion, education and major recreational activities. Custody can take many forms, including sole custody where one parent is responsible for decision-making, joint custody where parents make decisions jointly and parallel parenting where each parent is responsible for decisions in particular areas. "Access" refers to the physical time parents spend with their children. Common residency schedules include one parent maintaining primary residence of the children with the other parent exercising visitation for example on alternate weekends and one evening per week, or shared parenting, where the parties exercise access, for example on a week-about basis. The courts consider many factors when determining issues of custody and access, with the prevailing consideration being the best interests of the children.
Mobility issues typically arise where one parent wishes to relocate to a new area with the child/children. They are among the most complex issues in family law cases involving children, given that relocation will inevitably affect the non-relocating parent's access rights. In determining whether to allow a parent to relocate, a multi-factor analysis is applied and includes such factors as the distance of the proposed move, the reason for the move, and the impact on the children's relationship with non-moving parent in the context of the best interests of the child. In the absence of very extreme circumstances success in this kind of relocation is very difficult to achieve.
Marital Fraud: If your spouse deceived you as to his or her identity or marital status (i.e., that he/she was actually married) when he/she married you, you may have grounds to dissolve your marriage and seek an annulment as opposed to a divorce. An annulment and a divorce are two distinct legal concepts. An annulment declares that the marriage never existed in the first place because it was not validly constituted. A divorce terminates the marriage, but recognizes that it existed. Obtaining an annulment can be a very difficult process as courts are reluctant to grant them. Although you may have grounds for annulment, consult a lawyer to review your case and options before seeking an annulment.
Parties are obligated to provide full and frank financial disclosure during negotiations, mediation, arbitration, or litigation. Courts do not look kindly upon people who hide, deplete, or fail to disclose assets in order to defeat their partners’ claims. Courts have extensive power to order parties to provide full and frank disclosure. If you suspect your partner of hiding assets it is important to gather up whatever information and documents you have pointing to these assets and provide them to your lawyer, who can then request the court order your partner to disclose these assets. If you are considering hiding assets, don’t. It would be unusual for you to be successful in this and will only prejudice the court against you.
If you are a grandparent who has been primarily caring for your grandchild, you may be able to apply for and obtain child support from the child's parents, as well as an order for custody. If you are a grandparent who is seeking access to your grandchild, you may be able to apply to the courts for access to your grandchildren.
If you already have an order from a court, you may think all matters are finalized and you can relax. Unfortunately, people often disobey orders or refuse to obey orders, so there is still a need to act in order to enforce these orders. If your order has to do with custody and access and the other party is not obeying the order, they may be in contempt of court. If found guilty of contempt, they may face fines or even imprisonment. If your order has to do with support, these are typically automatically filed with the Family Responsibility Office, Ontario's support enforcement agency. Family Responsibility Office has a variety of powers to enforce support such as wage garnishment, driver's licence suspension, passport cancellation and prison. Navigating the Family Responsibility Office can be confusing and frustrating. If your order has to do with payment of money, such as an equalization payment, or the transfer of property, you may be able to enforce your order by filing a writ of seizure and sale, placing a lien on a person's property, or bringing a motion for contempt, to garnish their wages, or a writ of possession, among other remedies.
A family law matter can be difficult and challenging enough to manage without additional issues that might otherwise complicate reaching a resolution. Fortunately, the current definition of marriage in the Family Law Act extends to same-sex couples. The definition of “spouse" means either of two persons who (a) are married to each other, or (b) have together entered into a marriage that is voidable or void, in good faith on the part of the person relying on this clause to assert any right. Similarly, under s.2 (1) of the Divorce Act the definition of spouse means “either of two persons who are married to each other.” Accordingly, all the rights and obligations that flow from both the Family Law Act and the Divorce Act are equally applicable to parties of a same-sex marriage as to those of a heterosexual marriage. As such, we manage any matter for which we are retained with the same care and attention, regardless of the nature of the relationship. Let us assist you in navigating your same-sex family matter.
Not everyone's income and finances are created equally. Sometimes parties have complex income streams and assets comprised of wholly owned corporations, employee stock options, offshore holdings, securities and/or trusts. Understanding the values of these complex assets and incomes can be difficult and confusing, especially in light of the financial obligations for disclosure in family law. As understanding the values of assets and income is the basis upon which equalization and support can be determined, a resolution to any family law matter cannot be expected without this knowledge. We regularly deal with high-value and/or complex finances and have teams of experts in accounting to assist in these areas. Please keep in mind the above is only general information. If you require more information or advice, consult us about your options, as your case may be different depending your circumstances.
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