Family Law

Divorce & Separation

Divorce and separation are some of the most stressful situations a family can experience, and they are central pieces in family law. Separation occurs when a couple decide to live apart from each other because the relationship has broken down. The couple may be married, or they may be unmarried but living together like a married couple in a common-law relationship. Divorce occurs when a court officially ends a marriage. Only legally married couples can get a divorce. A couple must be separated before divorce proceedings can commence. In fact, in most cases, the court will lack jurisdiction to make orders regarding children or family assets under family law legislation if the parties are not separated.

The date of separation, as can be imagined, is a particularly important date for most issues that require determination in family law. Child and spousal support will often be calculated from the date of separation. Equalization or division of family assets will be calculated from the date of valuation which is usually the date of separation. As well, the court will usually only be able to make a divorce order after one year has elapsed following the date of separation. Whether or not to grant a divorce is usually not the contentious part of family litigation. It is the orders that must be made as part of the divorce proceedings that take the bulk of the time in family law matters. These orders, also called ancillary orders, cover parenting of children, support for spouses and children, and division of family property.

Child Custody/Decision-Making

Claims relating to parenting of children constitute the bulk of family law matters dealt with in our courts. Parenting issues revolve around custody and access. Since March 1, 2021, when the amendment to the Divorce Act and the Family Law Act came into force, we now refer to custody as decision-making and access as parenting time. The parent with custody of a child would be the parent that has the responsibility to make major decisions about a child's wellbeing. This would include decisions about the child’s education, religion, culture, language, spirituality, extra-curricular activities, and health care. The court may make orders requiring both parents to jointly make decisions for their child. The court may also split decision-making such that one parent makes decisions in certain areas of the child’s life while the other parent decides on other areas. At OBVLaw, we have been dealing with custody matters for many years and are able to anticipate the range of options available to the court in each factual scenario. Contact us as soon as possible even before your matter gets into court. This is essential because actions taken by parents before a matter gets to court or at the early stages of the proceedings can go a long way in determining the outcome of the matter.

Access/Parenting Time

Since March 1, 2021, when the amendment to the Divorce Act and the Family Law Act came into force, we now refer to access in family law proceedings as parenting time. Parenting time refers to the right of the child and a parent to spend time together. Although the parent exercising parenting time may not have a role in making major decisions, he or she has the right to receive information about the child's education, health, and well-being. The parent to whom the court has allocated parenting time usually has the sole responsibility to make day to day decisions for the child while the child is in his or her care. Other family members, like grandparents, may also have parenting time allocated to them by the court. Usually, a parent who does not have decision-making rights will have the right to exercise parenting time with that child. The courts have wide discretion in formulating a parenting schedule for parties. Parenting time is often unsupervised. In certain circumstances however, the court may require a parent’s time with a child to be supervised. The court may also make an order prohibiting a parent from spending time with the child. Should you wish to retain us, it is important that you be as detailed as possible in providing us with the facts of the relationship. This is important because we are better able to propose favourable parenting schedule options to the court when we are armed with the full facts.

Child Support

Child Support orders take the form of one or more of the following: ongoing support, retroactive support, extraordinary expenses, and variation of existing support orders. Child support calculation is often not complicated for incomes under $150,000. The contentious issue in proceedings with child support claims is often the determination of the income on which the support is to be calculated. This is because, other than when an exception applies, the amount of child support to be paid is determined by the payor’s annual income based on the applicable table. For T4 employees, the determination of the support payable is often straightforward. When however, the parent who is to pay support has multiple sources of income; is self employed; or seeks to prevent the use of some of his or her income for determining the support payable, the issues to be determined become a lot less straightforward. At OBVLaw, we are familiar with the factors the court needs to consider in making a child support order. We know what the disclosure obligations of litigants are. We also know what must be done to appropriately determine the income of parties for support purposes.

Spousal Support

Spousal support is one of the most complicated areas of family law. The courts order payment of periodic or lumpsum amounts for the support of an ex-spouse when certain conditions are met. The start off point for the courts would be a determination of entitlement for support. A party may be entitled on compensatory, non-compensatory, or contractual grounds. When the court determines that an ex-spouse is entitled, the court will then look to the needs of the party requesting the support payment and the other party’s ability to pay. Before a matter is determined on a final basis, the court may make an order for interim support. For a final order, after the court has determined entitlement, need, and ability to pay, the court has some discretion in fixing the support amount. The court would also often have to determine the duration of the support payments. There are tax consequences to be considered in the making of support orders. This is because, unlike child support, spousal support is usually taxable in the hands of the person receiving the money and tax deductible for the person paying the support. If you wish to retain us, you can be assured that you are retaining counsel that have experience in litigating and settling spousal support issues.

Division of Property/Equalization

Without doubt, one of the most contentious issues at the breakdown of family relations is the division of assets especially the home in which the parties lived before the break down of their relationship. Where the parties were married, the court will, on the application of either party, equalize the net family property (NFP) of the parties. The initial task in an equalization matter is to determine the property owned by each party as at the date of separation/valuation date. This task is not always easy. For example, property, such as a bank account or interest in a corporation may be in the names of both parties but only one party has beneficial interest in the property. The party who is entitled to the property in name only would have to lead cogent evidence to rebut the presumption of joint beneficial interest imposed by the Family Law Act. This will increase the NFP of the spouse with beneficial ownership and force a more equitable equalization. This example underscores the importance of retaining a lawyer that has experience in dealing with property in family law practice. At OBVLaw, we have a wealth of experience in handling property matters.

After ownership of assets is determined, the court will equalize the net family property. This simply means that the party who has accumulated less value in property is entitled to one half of the difference between the value of his or her property and that of the spouse. For parties who were not married but have been spouses in common law relationship, counsel would have to rely on doctrines of constructive trust, resulting trust, and unjust enrichment to force the sharing of family assets. Contact us at your earliest opportunity if your matter involves property claims since your case may require time sensitive intervention such as a motion for a preservation order.

Child Protection/CAS Matters

Children’s Aid Societies commence applications for the protection of children in two scenarios. The first is when they perceive that a child needs protection that can be achieved through the supervision of the current caregivers. They will not remove the child from the parents in this scenario. In the second scenario, the Society would remove the child from the caregiver with or without a warrant and bring the child to a place of safety. In either scenario, the Society would bring an application before the court to determine if the child is in need of protection. Where the Society has removed a child from caregivers, the Society is required to bring an application as soon as practicable not (exceeding five days) for a court to determine if the child is in need of protection.

Child protection lawyers often get involved when parties are served with CAS application or when parents have had their child removed and have been informed of a court date. Initial response to these applications is often time-sensitive when a child has been removed from caregivers. The Society would normally have a care and custody motion before the court on the first court date. At OBVLaw, we encourage parents that have reliable family and friends who can care for their children in the interim to provide those names as early as possible so alternative placement can be canvassed instead of leaving the child with strangers pending a full care and custody hearing. In many cases, with the appropriate direction from counsel and response from parents, children are returned to their parents. In many other cases however, a trial will be necessary for the court to determine if the children are in need of protection and, if so, what the appropriate disposition should be. At OBVLaw, we do have advanced experience in these proceedings. We request that you contact us at the earliest opportunity whenever you are involved with a Children’s Aid Society.

Separation Agreements/Domestic Contracts

Two persons who are married or intend to get married may enter into an agreement that outlines their respective rights and obligations under the marriage; upon separation; or end of the marriage by annulment, dissolution, or death. They can agree on the ownership of property or how their property should be shared. They can also agree on child and spousal support obligations; the right to direct the education or moral training of their children; and any other matter for settling their affairs. A domestic contract cannot grant decision-making or parenting time rights. As well, such contracts, when they try to limit a spouse’s rights relating to matrimonial home will be unenforceable.

Domestic contracts can be a very cost-effective way of resolving matrimonial disputes. They are also effective in preserving rights and protecting property before marriage. A domestic contract that deals with support may be registered with the court and will be enforced and varied as though it were a court order. We do encourage parties to utilize separation agreements when practicable. At OBVLaw, we have done many domestic contracts over the years. They are not one size fits all as some are more complex than others depending on the issues to be resolved. We are well able to draft the agreements or provide Independent Legal Advice on them regardless of the complexity. We always remind our clients that separation agreements are only viable when there is a likelihood that the other party will negotiate and sign the agreement.

Other Areas of Family Law

Other than these major planks of family law practice, we also deal with a myriad of related areas such as Hague Convention matters; Family Responsibility Office matters; Adoption; claims about obtainment of government issued documents for children; claims around paternity of children; Claims about the names of children; enforcement of family court orders; motions to change final orders; etc. Contact us and let us know how we can help at the earliest opportunity.