|Child Support||Spousal Support||Property Division|
Separation It is wise to consult with a lawyer before deciding whether to separate. A lawyer can advise you as to the proper procedure and whether you may take the children with you. The legal separation is usually achieved simply by physically living separately and communicating to your spouse that you intend on living separately from that point. You may be “separated” from your spouse even while living in the same home if there is withdrawal from the matrimonial obligations.
Separation agreement The issues of child custody, access and support; spousal support; property division; debts; and estate matters can be dealt with in a separation agreement. This is the most economical approach as court appearances and trials can become very expensive. If you cannot agree on these items with your spouse directly, you may use the services of a lawyer, who will initiate contact and negotiate with your spouse or his/her lawyer. A lawyer can draft the separation agreement for you.
Divorce can be obtained on one of three grounds: adultery or cruelty of the other spouse or having lived separately for one year. Most people opt for the one year separation ground as it is less expensive, quicker, easier and less acrimonious than the “fault” grounds of adultery or cruelty. You need not wait one year to start the process. It is wise to consult with a lawyer before obtaining a divorce as it may affect other issues such as possession of the matrimonial home and the ability to remain a beneficiary to your spouse’s health plan or other employee benefits such as pension. if uncontested by your spouse, divorce can take three months or more. The reasons to object to or delay the granting of a divorce are inadequate provision for the children or your spouse may claim support or a property division or other relief. However, you may ask the court to grant the divorce separately and deal with the other issues later. In Ontario, a person may not withhold the granting of a religious divorce to obtain a favourable property result.
Custody means the care and decision making for the children. The legal test in Ontario is set out in the Children’s Law Reform Act - “What is in the best interests of the child? A major determinant is who is the primary care giver for the child during the relationship and immediately after the break down. Sole custody means that one person is in charge of making the major decisions for the child. For example which school does the child attend, in which religion the child is to be raised, and what medical care ? Joint custody means both the parents have equal say in those major decisions. Shared custody is the same as joint custody and the children share the time with each parent on at least a 60/40 basis.
Access is also governed by “the best interests of the child” test. The form of access/visitation depends on the availability of the parents. If both parents work Monday-Friday 9-5, then the access parent has the children every other weekend from Friday evening to Sunday evening or Monday morning and one or two evenings or overnights during the week. If the parents work shifts, the access accommodates their particular schedules. If necessary, where violence is alleged against the access parent, the access can be supervised at an access centre or by a third party. Access depends on the age of the children and distance between the parents' homes. The primary focus guiding judges in determining custody and access is the right of the child, not the rights of the parents.
Child Support The parent with whom the child is living is entitled to receive child support from the other non-custodial parent. In Ontario, the amount paid by the non-custodial parent is governed by the Child Support Guidelines. The amount paid depends on two factors: 1. the gross annual income (as listed on line 150 of his/her last income tax return) of the non-custodial parent and;
2. the number of children. The CSG tables can be found at http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/legis/fcsg-lfpae/index.html
If the non-custodial parent is self-employed, the court may disallow business deductions even if these are allowed by Canada Revenue Agency. In addition to the CSG table amount, the payor may be required to pay the children’s “extra expenses”. Section 7 of the Guidelines sets out "extras”. They include childcare, healthcare and post secondary expenses, “extraordinary expenses for extracurricular activities”, such as sports, arts or other programs. These expenses are to be shared proportionate to parties income.
Spousal Support If an entitlement exists to spousal support, the amount and duration can be determined by reference to the Spousal Support Advisory Guidelines (SSAGs). The SSAGs are not law, but Ontario Courts refer to them as an aid. The SSAGs are not set out in tables; they can be determined by specialized software that takes into account, the length of the marriage, the custody situation, the age of the parents and the amount of child support paid. These calculations can be done for you upon request.
Property division for married couples is governed by the Family Law Act in Ontario. The premise is that the parties will “equalize” their net family properties and one spouse will pay the other half the difference between their respective net family properties which is calculated as of the date of separation. Property owned before marriage remains the property of that person and its value at the date of marriage is deducted from his/her net family property. Some property such as gifts or inheritances that exist on the date of separation or property that can be traced to that gift or inheritance are excluded from the calculation of net family property, However if the gift or inheritance was used to purchase a matrimonial home, it is not excluded. For example, if the husband had $100,000 in assets and $10,000 in debt, his net family property would be $90,000. If the wife had $50,000 in assets and $20,000 in debt, her net family property would be $30,000. The husband in this case would have to pay the wife half of the difference of $60,000 or $30,000.
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