FAMILY LAW

What is Family Law?

Family Law is concerned with the break-up of families, both where the parties were married and where they were living together as if married.

Some of the issues that arise are divorce, child custody and access (also called parenting), support for children, support for spouses, division of assets, protection orders, and occupancy of the family home.

Many times negotiation is possible through mediation, resulting in a separation agreement.

Prenuptial (pre-marriage) agreements are contracts that some people make between themselves, before they are married, which set out the rights and responsibilities of the parties that will come into play if the parties decide to separate and divorce.

Co-habitation agreements are contracts that people make before they begin living together; because they are not getting married they don’t have a prenuptial agreement, but other than the name of the agreement, the co-habitation agreement is a contract very much like a prenuptial.

Family law also encompasses the planning for the possibility of future incapacity of someone in the family. Incapacity usually arises through catastrophic injury, such as a car crash or sports injury, or illness, such as Meningitis, or Alzheimer’s disease to name just a few.

Overview – Our Family Law Services

Divorce, Child Custody and Access, Spousal and Child Support, Division of Assets, Protection from Abuse.

We can help you:

• With child custody or access for you or for grandparents and other family members as well as parents;
• Obtain support for yourself and/or your children;
• Divide family assets such as real estate, family businesses, RRSP’s, pensions, investments and other property, no matter in whose name they are;

Have your spouse removed from the family home, and obtain sole use of it for yourself;

Obtain an Order keeping your spouse away from you and/or your children, or setting strict limits on the kind and frequency of contact your spouse is permitted;

Divide assets from a common-law relationship, even if the assets are not in your name;

Obtain a Paternity Order and get support from your child’s other parent;

Deal with questions of an infirm or elderly relative’s care and management of his/her estate.

Your case will begin with us interviewing you at length so we know the history of the relationship; to keep costs as low as possible, we may ask you to provide us with a written report setting out the circumstances of your case, with dates, times, names, and as much detail as possible.

Remember you know more about your case than we do, so the more detail the better. We need to know how you and your spouse divided child care and household responsibilities, how much each of you worked outside the home, and the dates each of you did so, what you earned, and what financial arrangements you had, what assets each of you brought into the relationship, and what assets were acquired after the relationship began. We will give you a financial worksheet to complete, from which we can prepare a Property and Financial Statement – a document that is needed at the outset.

Only about 10% of our cases actually go to trial; the vast majority are settled by negotiation. We do however obtain a trial date “just in case”; if your case cannot be settled, at least there is a trial date, which means the end is in sight.

We will not try to explain the whole process here: it is complex, and more easily explained in person.

Divorce/Separation is such a final step, with such an impact on children, that the Federal Government has made it a legal requirement that lawyers advise you to make every effort to reconcile. Lawyers can only be of limited assistance because we are not trained counsellors. We take this responsibility very seriously, and have a Registered Psychologist in our office. There is no charge for our clients to use the services of our Registered Psychologist in assisting you with the decisions to make after separation or to assist you with strategies to manage difficult times in the litigation process. Unfortunately, we can not offer free psychological assistance for our Legal Aid and Pro Bono clients.

Child Support

Child support is dependent on a number of factors but the most important are the gross income of the paying parent. That is almost always what is reported on your last year’s income tax return at line 150.

Child support is not deductible by the paying parent and is not reported as income by the recipient parent.

Child Support in Canada is governed by the federal Child Support Guidelines (here put in a link to the federal website).

The federal government has mandated how much child support one parent will pay the other.

Generally the parent with whom the child spends the least amount of time will pay child support to the other parent; the Guidelines also provide that if a child spends 40% or more of the time with each parent then there is usually a balancing of the child support obligations of each parent. That means that the child support obligations of one parent would be determined and offset against the child support obligations of the other parent, with the net difference being paid from one to the other.

This is not an automatic process but it is common. There are other ways of calculating child support in such shared custody situations, but those are too complex to go into in this website.

When there are expenses that are over and above the normal usually anticipated childcare expenses, then they are to be shared between the parents in proportion to their respective incomes, regardless of how much time the children spend with each parent.

Although the list of possible expenses is almost limitless, some of the more common ones are the cost of sports equipment and fees, music lessons, summer camp, orthodontic care, and other special medical care. Not all extra-curricular activities are special expenses; the courts have often decided that fees charged to enroll a child in swimming lessons or other sports are not extraordinary, but are the ordinary expenses that a parent would have and therefore such expenses are not divided between the parties.

Our job is to assist you with assessing how much child support is paid to you or by you under various scenarios, and advise you of the most likely outcome.

In the event that we cannot reach an agreement with other party then our job is to take the matter before a judge and do our best to convince the judge of the correctness of your position.

Of course most parents who have their children’s best interest at heart don’t balk at spending extra money on their children.