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A. The Ontario Family Law Act sets out the mechanism used by the courts to equalize the value of married spouses assets after they separate. The general rule is that only those values accumulated during one's marriage are subject to equalization. Your lawyer can advise you of the exceptions to this general rule and how to equalize the values. Q. Who gets the kids after we separate? A. There are a number of factors the courts will consider prior to granting a parent the primary residence of children. The children will always be placed in accordance with their best interests. The factors which are considered to determine the best interest of the children include but are not limited to: the love between the child and parent, the child's views if old enough to make these known, the stability of the family unit, the proposed plans to raise the child, etc. Q. What is the meaning of "custody"? A. "Custody" has historically been defined as the decision making power over a child. Where one parent is granted "sole custody" that generally implies that the parent has sole decision making power over the important matters in a child's life such as the choice of schools, the choice of religion, health care, sporting activities, etc. Where the parents share "joint custody" they are generally both involved in the decision making process for their child. Custody or Joint Custody are granted by the courts in accordance with what is the best interests of the child. The laws which help us determine proper levels of child support also contain definitions for "split custody" and "shared custody" but these refer to the length of time a parent spends with a child and not who is granted the power to make decisions. Q. Am I entitled to child support ? A. The Divorce Act and the Family Law Act both have a regulation called the "Child Support Guidelines". These Guidelines contain a series of tables which determine the level of non-taxable child support based on a payor's total income. Once the total income is determined monthly child support is payable based on the total number of children that payor is responsible for. Q. Am I entitled to spousal support ? A. If you fall within the definition of a "spouse" under the Family Law Act or the Divorce Act, you may be entitled to spousal support. Spousal support will be awarded if there are economic consequences which flow from the breakdown of your relationship or marriage, if you need assistance to become self-supporting and to relieve financial hardship. You must also establish that you are in need and that your former spouse has the ability to pay. There are a number of other factors outlined in the legislation which have a bearing on whether spousal support is warranted. Your lawyer can outline these other factors for you. Q. Is a "common law relationship" treated differently than a "marriage" before the law? A. There remain important differences in the treatment of common law couples versus married couples before the law. The property division regime is not the same. A married spouse, has rights of possession to the matrimonial home whereas a common law spouse does not. There are other differences which go beyond the scope of these brief answers. Q. Can I resolve my separation without going to court ? A. Yes, your lawyer will explore the alternatives to avoid going to court these include resolving the matter by way of a separation agreement. To achieve this, your lawyer will negotiate for you. The lawyer will also schedule settlement meetings, participate in mediation sessions or an arbitration hearing. The benefit of mediation and out of court agreements cannot be overemphasized. Very often, the best resolution is one where you decide your own outcome as opposed to having a third party (a judge) decide it for you. |
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