Separation and Divorce

Going through a separation and divorce can be a hugely stressful time in your life. Divorce can impact on your financial stability, parental rights, personal property, and assets. There are of course many aspects of your life that a separation and divorce might impact. Langer Law provides affordable legal services during your time of need and focuses on a client centric approach to the practice of family law.

Langer Law will guide you through the transition period of a separation and divorce so that you can begin moving forward with your life. A family lawyer’s job is to be compassionate about the factual circumstances surrounding the separation and divorce while minimizing the stress of going through the separation process. Langer Law is dedicated to fighting for your interests whether that means negotiating terms of a separation agreement or proceeding in court. Langer Law will advocate for your best interests.

 

Separation Agreement 

Separating or divorcing spouses do not need to go to court to settle family law matters. If the relationship is amicable or the spouses wish to keep legal costs down, settlement of outstanding family law matters can be finalized by agreeing to a separation agreement. A separation agreement can resolve issues including: property division, child support, spousal support and the custody/access of a child.

A separation agreement must be in writing, signed by both spouses and the signatures must be witnessed. Both spouses should retain a lawyer so that they each receive independent legal advice on the separation agreement. One of the lawyers typically drafts the separation agreement but the other lawyer will review the draft separation agreement and provide comments before it is finalized and signed. A lawyer will ensure that the spouse is not signing the separation agreement involuntary, under undue influence or based on threats made by the other spouse. If one spouse does not retain a lawyer and receive independent legal advice, it is possible that a court will overturn the separation agreement or refuse to enforce the terms.

A separation agreement offers both spouses a high level of control over the separation process. Significantly, a separation agreement tends to decrease the adversarial nature of a separation or divorce along with decreasing the legal costs typically associated with proceeding to court.

As a separation agreement is a legally binding contract between the two spouses, the rights and intentions of each spouse should be accurately outlined. Even if spouses can agree orally, all aspects should still be included in writing and every term must be reasonable and clear. Separation agreements are treated seriously by the court and if terms in the separation agreement are unreasonable or unclear, the court may overturn the separation agreement or refuse to enforce the terms.

Spouses agreeing to a separation agreement must both be prepared to provide honest and accurate financial disclosure. This means that both spouses must disclose their income, assets and debts for the date of the marriage and the date of separation. The purpose behind providing financial disclosure is to ensure both spouses are fully informed of the financial situation during settlement negotiations. If a spouse does not provide honest and accurate financial disclosure, it is likely that a court will overturn the separation agreement or refuse to enforce the terms.

 

Divorce 

In Canada there is a no-fault divorce system. Due to the no-fault divorce system, regardless of whether there was adultery or the breakdown of the marriage was solely based on the conduct of one spouse, entitlement to property division, custody, access to the children, child support and spousal support is not impacted. The main ground for a divorce is the breakdown of a marriage, which can be easily established by showing that spouses have lived separate and apart for at least one year. The only way to legally end the marriage is for the court to grant a divorce and it is not a requirement that both spouses want the marriage to end for a divorce to be granted.

Spouses do not have to be citizens of Canada to file for divorce in Canada, however there are criteria that must be met before the divorce process can be initiated. An Ontario court will not officially provide a divorce until there is clear evidence of the following:

  1. Both spouses were legally married in Canada or in another country;
  2. Both spouses lived in Ontario for at least 12 months before the application for divorce was filed;
  3. One spouse is prepared to separate permanently from the other spouse or have already begun living separately and there is no possibility of reconciliation.

There are three types of divorce applications in Ontario with the major differences being the level of cooperation between the parties, costs and whether a separation agreement has been entered into.

  • What is a Simple Uncontested Divorce? For a simple uncontested divorce, only one spouse initiates the divorce application but neither spouse opposes the divorce. Once the proper documents are filed with the court, the other spouse must be served with the divorce documents. That spouse then has 30 days to contest or challenge the divorce or make a responding claim for child custody, spousal support, child support or the division of property. If the spouse does not challenge the divorce, the divorce process will proceed as an uncontested divorce.
  • What is a Joint Uncontested Divorce? For a joint uncontested divorce, both spouses file a joint application. A joint divorce eliminates the requirement for serving the divorce documents on the other spouse. In a joint uncontested divorce application, the spouses can jointly ask the court to include an order relating to child custody, spousal support, or child support if both spouses agree to the terms.
  • What is a Contested Divorce? For a contested divorce, the spouse initiating the process wants not only a divorce but for a court to order corollary relief which may include child custody, spousal support, child support or the division of property. This type of divorce is appropriate when the spouses cannot agree on any of the main issues involved in a divorce and cannot agree on terms for a separation agreement. This type of divorce requires the intervention of a court and includes higher legal costs.

Below is a list of divorce documents that may need to be completed depending on the type of divorce application that you are seeking and whether or not there is child support or spousal support being requested.

For further assistance with determining which type of divorce application is right for you or to learn how to properly fill out the proper divorce forms, contact Langer Law for more information.

 

Common Law Relationships

In Ontario, spouses are considered to be in a common law relationship if they have not been married but have been living continuously with each other in a conjugal relationship for 3 years or more. If spouses have had a child together by either birth or adoption, they do not need to have been living together for 3 years before they are considered to be in a common law relationship. Being in a common law relationship or cohabitating is becoming more prevalent in today’s society, so the legal consequences need to be properly understood and appreciated.

What common law spouses need to understand is that spousal support can be payable depending on the context of the relationship. If for example one partner earns a significant income and supports the other over the continuous period of the common law relationship (3 years or more) and the relationship ends, there is the possibility of spousal support entitlements. If a common law spouse quits their job or becomes a dependent due to an injury or disability, the other spouse can be found by the court to have financial obligations. A cohabitation agreement can specifically provide what, if any, support obligations common law spouses have to each other.

Common law spouses are responsible for child support obligations. Being a parent to a child automatically results in a positive obligation to financially support the child, regardless of whether the parents were married. The Child Support Guidelines provide an accurate estimation of how much child support can be owed and the calculation is generally based on annual income and the number of children. A cohabitation agreement cannot contract out of child support obligations common law spouses have to their children.

An important aspect of the separation of common law spouses is that there is no legal claim to assets or property. This means that when a common law relationship ends, each common law spouse is only entitled to the property they personally own. The legal concept of equalization or a 50/50 split of all property does not apply to common law spouses. There are of course exceptions, including unjust enrichment claims and constructive trust claims, however it is most common for spouses in a common law relationship to separate simply by walking away with whatever property and assets they came into the relationship with. A cohabitation agreement can specifically provide how jointly owned property is to be split or explicitly outline how property is to be shared.

Whether you think you might already be in a common law relationship or you are thinking of moving in with a person with a long-term plan to the future, educate yourself on the legal and financial implications of the decision. Common law spouses should consider entering into a cohabitation agreement to specifically agree on what rights and obligations flow as a result of the relationship and how a future separation may impact them directly.

 

Custody

During a separation or divorce, spouses with children have very important decisions to make regarding their custody rights to the children moving forward. Custody is a legal term describing the legal right of a parent to make decisions for the child including: education, health care, dietary needs, religious upbringing, social activities, extracurricular activities, and day-to-day concerns. Custody does not refer to the amount of time a parent spends with the children as this is referred to as access rights. The courts make a clear distinction between custody (decision making rights regarding the children) and access (parenting time with the children) as these are two separate legal concepts.

There are different types of custody arrangements that are tailored either by an express written agreement or outlined in a court order that focus on the best interests of the child.

  • Sole Custody – Under a sole custody arrangement, one parent makes all important decisions that impact the child. It is often the case that the child lives primarily with the parent with sole custody, but this is not always the case. The fact that one parent has sole custody does not mean that the other parent cannot see the child, in fact the court typically finds that it is in the best interest of the child to have a relationship with both parents.
  • Joint Custody – Under a joint custody arrangement, both parents make all important decisions that impact the child. Both parents must agree before an important decision is made, meaning that one parent cannot make a final decision without consulting the other parent and receiving express agreement.
  • Shared Custody – Under a shared custody arrangement, each parent spends at least 40% of the time with the child over the year and both parents make all important decisions together, even though the child may be living mainly with one parent. Shared custody is similar to joint custody except for the increased requirement of both parents spending a set amount of time with the child.
  • Split Custody – Under a split custody arrangement, each parent has custody of different children. This is a rare form of custody but comes into play when pre-teens and teenagers personally decide to live with different parents.

The court will order a custody arrangement that best serves the needs of the child while taking into account the relationship of the parents. An important factor is how well the parents can communicate and work together to make important decisions that impact the child.

 

Child Support

Child support is the legal principle that all dependent children have a legal right to be financially supported by both of their parents. Typically, the primary caregiver will pay most expenses in raising the child so the other spouse is expected to pay child support to financially assist with raising the child.

The amount of child support is determined by the Child Support Guidelines and is based on the payor spouse’s income, the number of children and the province the payor spouse lives in. Importantly, child support is payable whether the spouses are married or in a common law relationship. Spouses can use a child support calculator to determine an approximate amount of child support owing. If the spouses are unable to reach an agreement, the court can determine a fair and objective child support payment. The monthly amount of child support is not often contentious because judges typically apply the Child Support Guidelines unless there are extenuating circumstances or if the facts are more complex and do not lend themselves to applying the Guidelines.

The general rule is that a parent must pay child support until the child is at least 18 years of age. This financial obligation can continue if the child continues to be financially dependent, if for example the child is a full-time student at post secondary school. If a child is disabled, the length of time the child is dependent can be extended even further. The single most important factor in the determination of child support is the best interests of the child, regardless of the marital status of the parents or any other applicable facts relating to annual income or other child expenses.

Child support payments under the Child Support Guidelines are intended to cover many of the child rearing expenses by the primary caregiver parent, but there are certain expenses that are not covered by standard child support payments. These expenses are called Special/Extraordinary Expenses or section 7 expenses. They are expenses that go above and beyond the basic necessities of a child’s life and must be reasonable and necessary. In general, parents split section 7 expenses based on their proportionate incomes. Some examples of expenses that have previously been found by the court to be section 7 expenses include the following: post secondary school expenses (tuition, books, lodging), private school tuition, cell phones, music theater fees, violin lessons, hockey and hockey equipment, and summer camp. Some examples of expenses that have been denied as section 7 expenses by the court include the following: personal training, public transit expenses, driver’s license expenses, clothing and the travel and accommodation at an out of town sport’s tournament.

 

Spousal Support

Spousal support is not an automatic right associated with a breakdown of a marriage or the separation of common law spouses. The Divorce Act governs spousal support for married spouses but the Family Law Act includes spousal support provisions for common law spouses. Regardless of whether one spouse committed adultery, the court will only consider entitlement to spousal support without there being an impact or consideration on spousal misconduct leading to the breaking of the relationship.

Based on the 1999 Supreme Court of Canada of Bracklow v. Bracklow, the three types of spousal support as follows:

  • Contractual: What spouses have agreed to in a contract, most commonly a separation agreement
  • Compensatory: To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown. Aspects of a marriage or common law relationship that can lead to entitlement under compensatory spousal support can include staying at home with the children, being a secondary income earner, moving cities to benefit the other spouse’s career, financially supporting the other spouse when they were receiving education or career training, or working in a family business.
  • Non-Compensatory: To assist a spouse that has an inability to meet their financial needs or providing support when there is a clear decline in the standard of living from the standard during the marriage or during the common law relationship. Aspects of a marriage or common law relationship that may have a bearing on non-compensatory spousal support can include the length of the relationship, a drop in the standard of living after separation, and the economic hardship impacting a spouse.

While only technically applying to married couples, the Divorce Act at section 15.2(6) provides a list of objectives that judges must consider when ordering spousal support:

  • Recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
  • Apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • Relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
  • In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Once a judge determines that a spouse is entitled to spousal support, the judge must then decide the amount of spousal support and for how long it must be paid. The following is a non-exhaustive list of factors that the court may consider:

  • The length of the marriage or common law relationship;
  • Whether there are children and what arrangements have been made for them;
  • The roles the spouses played during the marriage or common law relationship;
  • The age of each spouse;
  • The annual income of each spouse (employment income, investment income, business income); and
  • Each spouse’s financial situation and the ability for each spouse to support themselves.

Courts use the Spousal Support Advisory Guidelines (SSAGs) to assist with determining how much spousal support should be paid and for how long. Judges have noted that the SSAGs are guidelines and not laws but they can still provide a good starting point to understand what amount of spousal support could be payable. Generally, spousal support payments are usually higher and paid longer when there is a big disparity between the annual incomes of the spouses, in cases where the spouses lived together for a long period of time and when there are children involved. Spousal support payments are usually lower when the spouses have roughly comparable annual incomes and in cases where the marriage or common law relationship was shorter.

This free online support calculator can provide an estimate for what spousal support could be payable depending on facts inputted by the spouses. However, it cannot provide the whole story because it only takes into account the following: the age of the spouses, length of the marriage or common law relationship, number of kids and annual employment income. For a more in-depth understanding of spousal support, contact a licensed Ontario family lawyer.

The simplest way to claim spousal support is by way of a separation agreement, whereby both spouses agree to there being spousal support entitlement, a monthly spousal support amount and the duration of the spousal support payments. However, if the separation is not amicable and no agreement can be reached, contact Langer Law to discuss steps to initiate the court process.

 

Motion to Change

A motion to change is the court process used when a spouse wishes to request that the court either change a final family court order or change an agreement to pay child support or spousal support. The most common reason to bring a motion to change is to change a support payment and is often brought when one of the following happens:

  • The support payor is making more money than they were when the order or agreement was made;
  • The support payor is making less money than they were when the order or agreement was made;
  • The child has finished school, married, moved out on their own, or should be considered a dependent;
  • The child is now living with the payor or a different person;
  • The support payor has lost their job;
  • The support payor has gone bankrupt; and
  • The spouse receiving spousal support is able to support themselves.

An important legal concept for motions to change is a judge finding a “material change in circumstance.” Without evidence of a material change in circumstance, the court will not vary a previous order or separation agreement. The spouse who wants an order to be varied bears the burden of proving to the court that the change in circumstance has reached the level of “material change” necessitating that the order be formally varied. The court will also have to determine if the material change was unforeseen at the time the original court order was made and whether a different court order would have been made if the current factual circumstances were known at the time.

When applying for a motion to change or vary an order or agreement for child support, reviewing the Child Support Guidelines is essential. A court making a variation to a prior order in relation to child support must do so in accordance with the Child Support Guidelines. Section 14 of the Federal Child Support Guidelines notes a change in circumstance that would result in a different child support order being applied in accordance with the table amount is sufficient for a variation of a child support order. What this means on a practical level is that a variation order may be granted if the payor spouse’s income increases or decreases to a point where they are no longer paying the correct table amount under either an agreement or a prior order.

The process to bring a motion to change for a variation order differs depending on whether there is already a separation agreement in place or if there is a court order. If the spouses wish to bring a motion to change child support or spousal support contained in a separation agreement, and attempts to negotiate an updated agreement are unsuccessful, the court will need to become involved. The separation agreement must first be filed with the court by completing Form 26B: Affidavit for Filing Domestic Contract or Paternity Agreement with the Court. Form 26B is filed by attaching the separation agreement and advising the court that the separation agreement has not been set aside by the court and has not been changed on consent by the parties. Once the separation agreement has been filed, only child support and spousal support provisions can be varied. It is important to note that terms in the separation agreement relating to custody, access, or property division cannot be varied.

Rule 15 of the Family Law Rules sets out the procedure to change a final order. Completing the proper forms is essential in bringing a motion to change or vary a final order. If both spouses are amicable and intend only to consent to a motion to change a final order in relation to child support, Form 15D must be completed and filed with the court. If both spouses are amicable but intend to consent on changing a final order in relation to aspects other than just child support, Form 15A, Form 15C, and Form 14B must be completed and filed with the court. If both spouses are unable to consent to a motion to change a final order, Form 15 and Form 15A must be completed, filed and served on the other spouse.