Family Law: Frequently Asked Questions
Any issues related to separation, divorce, child custody, child or spousal support, the division of property, and all other family disputes requiring legal intervention, are usually extremely stressful for everyone involved. At Simard and Associates, we understand you may feel confused and anxious while dealing with these nerve-wracking situations. Our Family Law team comprised of qualified, relationship-focused family law lawyers has been serving clients in and around Clarence-Rockland and Ottawa for over two decades. Over the years, we have seen that there are a host of common questions and concerns that arise when people facing family issues ponder over legal options.
In this section, we share insights and provide answers to some of the commonly asked questions in the various areas of family law.
Separation and Divorce
- Do common law spouses and married spouses have the same legal rights when separating?
Not necessarily. While common law spouses and married spouses might have the same legal rights on issues related to spousal support, child support or custody, the rules may greatly differ for property matters. Aspects related to dividing the property, such as the division of family property or deciding who can stay or sell the family home, will depend on your marital status.
- Can I resolve my separation without going to court?
Yes, the law does not require you to go to court in order to finalize the terms of your separation. There are various options available to separating spouses which do not involve the legal court system such as collaborative law, lawyer-based negotiations and mediation to help the involved parties reach an amicable separation agreement.
- My spouse and I are separating; can we meet the same lawyer?
No, even if you agree on the terms of your separation, a lawyer cannot meet with both spouses and provide them with legal advice. However, if you decide to participate in mediation, a neutral party (a lawyer mediator) can meet with both spouses and assist in resolving all matters arising from your separation , by providing you both with legal information (but not legal advice) It is also recommended that each party review the terms of any agreement with their own lawyer and obtain “independent legal advice”. Your lawyer is duty-bound to offer advice and options that work in your best interests and help you reach decisions in private, free from the influence of any other party involved.
- My husband/wife and I have just separated, what happens to my assets?
In Ontario, the Divorce Act and Family Law Act sets out the general rules and exceptions used by the courts to divide and equalize the value of married spouses’ assets, after they separate. The law is very clear on the division of property notwithstanding in whose name the assets may be. There are also exceptions for excluded assets which could apply in specific scenarios.
- I am separating. What happens to our house?
It depends. Usually, you will need the consent of your marital/common law spouse if you wish to sell or transfer any property, unless you have an explicit court order that allows you to transact without consent. Again, the ownership of property might not be the sole deciding factor.
- Do I need to review my Separation Agreement periodically?
Yes. Several aspects, such as changes in salaries, new relationships, new jobs, children completing their studies, etc. can change from year to year and have far reaching effects on the terms of your Separation Agreement. It is best to review your Separation Agreement once every year.
- I’m separating, do I need to get a divorce?
Not necessarily. Separation and divorce are two different concepts, and whether or not to get a divorce depends on the circumstances of your separation.Know that a Separation Agreement defines your rights and obligations when you live separately, whereas a divorce order formally changes your legal status and allows subsequent marriage. It is important to note that one’s rights and obligations following separation can differ once a divorce is obtained.
Child Custody and Child Support
- What is the difference between custody and access?
“Custody” is generally defined as the decision-making power over a child; whereas “access” is a broad term referring to the child’s living arrangements and schedule. Custody can be either sole, joint or shared, and gives the custodian legal authority for all types of important decisions about medical care, education and religion . Access allows the non-custodian parent the right to spend time with the child, without any legal decision-making powers. An access parent can also be entitled to receive information about the child’s health, education and overall well-being.
- If we share custody, does either spouse need to pay child support?
Yes, in most situatoinschild support will still be applicable, even if you have shared custody. The amount of child supportdiffersif the child spends 40% or more of his or her time with both parents. In cases of shared custody, the Federal Child Support Guidelines take into account all the associated costs of shared custody, as well as the needs, means and circumstances of both parents.
- Am I entitled to Child Support?
According to the Divorce Act and the Family Law Act, the amount of child support is based on various factors including, but not limited to, a child’s residency schedule and the parents’ respective incomes. The amount of support is governed by the Federal Child Support Guidelines.
- Is Child Support Applicable for common law partners?
In Ontario, child support obligations are to be borne by all parents, including marital spouse and common law spouse. Child support can also apply to non-biological parents, such as step-parents, based on various factors.
- Can a custody parent refuse access if child support is not being paid?
No. Access and child support are not interlinked; hence access cannot be denied even in cases where child support is not paid or ifchild support payments are missed/late.
- How do I collect support?
It depends. Child support (and spousal support) can be paid directly between parents. However, child support can also be paid through the Family Responsibility Office (commonly referred to as the “FRO”) which acts as the intermediary to collect and administer payments of support between the involved parties. The FRO has the authority to garnish wages, seize bank accounts and undertake other measures to enforce the support payments.
- Am I entitled to spousal support?
According to the Divorce Act and the Family Law Act, one’s entitlement to spousal support and the amount of support paid is based on various factors including, but not limited to, the length of cohabitation/marriage, roles played by each party during the relationship, age of each party and the parties’ respective incomes.
- What happens to spousal support once the individual remarries?
It depends. While every case can greatly differ, the remarriage of either spouse does not automatically terminate spousal support. Most court orders and separation agreements that grant spousal support accounts for the length of support and terms for review and/or termination of support. Hence, the cause for which the support was granted could be re-evaluated, when either spouse remarries depending on the terms of one’s separation agreement or court order.
- For how long is either spouse obligated to pay spousal support?
It depends. Once it is determined that one spouse is entitled to spousal support, various factors are taken into consideration in determining the length of support including, but not limited to, the age of the parties, the length of the relationship and if there are children involved. However, there are further nuances that take into account the diminished earning capacity of separating parties, especially if they are nearing retirement age or are unable to work for justified reasons.
Family Law Mediation
- Is mediation an alternative to court?
Yes. Family mediation is an alternative dispute resolution process which assists parties in settling issues around custody, access, property division, child and spousal support, and other disputes. An unbiased, third party mediator conducts these meetings in a confidential manner and draws up a written agreement, incorporating all the decisions that emerge from the negotiations and discussions. Once the Separation Agreement is signed, both parties are legally bound to adhere to it.
- Is a violation of Separation Agreement held up in the court of law?
It depends. If a Separation Agreement was signed by both parties andwitnesses following various criterion such as full and frank disclosure, it is usually enforceable in a court of law. However, if the court finds evidence of non-disclosure, duress, or fraud when the agreement was drawn up and signed, they can declare the contract null and void. That means the Separation Agreement is set aside and no longer binding on either party.
- How does the cost and time of mediation compare to the traditional court process?
Generally speaking, mediation is a much faster resolution process than court. Mediation will take whatever length of time is necessary to come to an agreement on all the disputed issues. There is no fixed length, and the time taken purely depends on the number of issues involved, along with the ability of both parties to discuss, negotiate and arrive at a mutually agreeable arrangement. Whereas a traditional court process can last upwards of a year or two, mediation is usually completed within a few months.The mediation process is highly personalized, informal, and focused on achieving amicable solutions for the disputed issues. The cost of mediation will depend on the mediator used, the number of sessions involved, and any counsel representation that either party opts for. In most cases, the cost of mediation is shared between the parties which reduces each party’s cost. However, despite the above factors, mediation may require less time and money, as compared to the long-drawn and expensive, traditional court processes
- Is mediation an alternative to court?
While these responses are indicative, every case may be different. To discuss your specific situation and understand your options, get in touch with one of our Family Law lawyers today. Our knowledgeable team will guide you on your rights and obligations and design options and strategies that best address your situation.