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 greatly differ for property matters. Unlike married couples, common law partners do not have an automatic entitlement to property division/equalization.
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 family law, party to party negotiation, lawyer based negotiation and mediation. These alternatives can help the parties reach an amicable separation agreement outside of court.
A separation agreement is a legally binding contract that deals with the legal issues that arise in your separation. The legal issues that you may encounter are child custody and access, child support, spousal support, and property division/equalization.
When you negotiate your separation agreement, you reach an agreement with your spouse on all issues stemming from the breakdown of your relationship. A Separation Agreement must be in writing and is usually a very detailed document. The Separation Agreement must be properly witnessed in order to be legally binding.
“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, split or shared, and gives the custodial parent the legal authority to make important decisions in relation to the child’s medical care, education and religious upbringing.
Access refers to a parent’s right to spend time with the child (usually non-custodial parent), and does not refer to 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 your children reside with the other parent most of the time, you will have to pay child support pursuant to the Child Support Guidelines. The Child Support Guidelines contains a grid or chart for how much child support that you must pay based on the number of children and your gross income. The Child Support Guidelines are different for each Canadian province.
In Ontario, you can use the following link to determine your child support obligation: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.aspx
Yes, in most situations child support will still be applicable, even if you have shared custody. The amount of child support differs if the child spends 40% or more of his or her time with both parents. It is usually calculated on a set-off basis.
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.
In Ontario, child support obligations are to be borne by all parents, regardless if you are legally married or common law partners. Child support can also apply to non-biological parents.
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. FRO has the authority to garnish wages, seize bank accounts and undertake other measures to enforce the support payments.
If you are receiving payments directly from your former spouse/partner, but he or she has not been making them on time, or has fallen behind on those payments, you can reserve the right to file your agreement or court order with FRO for enforcement purposes.
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.
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.
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.
In Ontario, you will have to make a property payment to your spouse when the net value of your assets is greater than the net value of your spouse’s assets on the date of separation. If the husband has $200,000 in net assets and the wife has $100,000 in net assets on the date of separation, the husband has to pay one-half the difference between the value of his net assets and the value of his wife’s net assets.
The difference is $100,000 in this example so that the husband would have to pay $50,000 to the wife or one-half of $100,000 to equalize the value of net assets between the husband and the wife. Your assets include your bank accounts, RRSPs, stocks, bonds, real estate, and pensions.
You calculate your net assets by determining the value of your assets on your date of separation and deducting the total amount of your liabilities, including your mortgages, lines of credit, monies owing on credit cards, and outstanding tax payments.
You are also allowed to deduct the net value of your assets on the date of marriage from the net value of your assets on the date of separation. In this way, your spouse will not share in the value of your assets that you owned before you entered the marriage.
Each spouse is responsible for the payment of their own debts. Your spouse is not responsible for the payment of any portion of your own individual debt. You are permitted to decrease the total value of your debts by deducting the total amount of the debts and liabilities that you have on the date of separation for the purposes of calculating any property payment that you owe your spouse or that they owe you.
You and your spouse are responsible for the payment of any joint debts, such as a mortgage. As a practical matter, when you sell your home as part of a separation or divorce your mortgage and lines of credit that are secured against your home or property will automatically be paid as part of the sale of the home.
When you get separated or divorce, your house will be handled in normally one of two ways. You and your spouse can agree to sell the matrimonial home or you or your spouse can also agree that one spouse will purchase the other spouse’s legal interest in the matrimonial home.
If you decide to let your spouse purchase your legal interest in the matrimonial home, you must make sure that your spouse refinances the existing mortgage so that the existing mortgage is paid off and you are no longer on any mortgage on this property. If you transfer your legal interest in the property to your spouse in exchange for a reasonable amount of money but you are still on the mortgage, you can be held legally liable if your spouse fails to make the mortgage payments.
When you and your spouse sell your matrimonial home, you must specifically set out in a separation agreement or court settlement how the net proceeds of the sale of the home will be divided. You and your spouse will not necessarily split the net proceeds on an equal basis so that each spouse gets half of the net proceeds. For example, if your spouse owes you a property payment as described in question #13 above, you want to make sure that you obtain this payment from your spouse’s portion of the net proceeds of the sale of the matrimonial home.
The matrimonial home has a unique set of rules that differentiate it from the rest of your property. Please check out our blog post relating to matrimonial homes for more information.
