Family Law

Separation

Separation is not clearly defined. The definition is simple enough, but applying it to particular facts is not always easy. A legal separation begins when a couple lives "separate and apart with no reasonable prospect of reconciliation". That sounds simple enough, but it is possible to live separate and apart while living in the same house, and it is also possible to not be separate and apart when the two people are on opposite sides of the world.

The law encourages couples to get back together, so it is possible to live together in an attempt to reconcile, while still being considered legally separated.

Determining exactly when you became legally separated is more important if you are legally married than if you were living in a common law relationship; but determining the date of separation can have a large impact on your rights and obligations. It is generally best to discuss your particular facts with a lawyer who is acting only for you before you agree to anything (and certainly before you sign anything) involving legal separation or divorce.

Divorce

Divorce brings about the end of a marriage. Once married you can not re-marry in Canada until you have obtained a divorce. The end of a marriage also entails issues of equalization of net family property, and spousal support. If there are children of the marriage (who may of may not have been the biological children of both parties) there will also be issues of child support, custody and access.

Custody of Minor Children

Custody of minor children is the right to be consulted in the making of major life decisions affecting the child. Decisions such as which school the child will attend, whether the child will receive religious training and in which religion, and medical decisions about the child are examples of custodial decisions.

Custody is not necessarily related to where the child lives.

Access

Access is the right to spend time with the child. Access can be clearly defined (e.g. 1:00 p.m. on the second Friday of the Month for 3 hours at a particular building to be supervised by a specific person or agency) or it can be vague (e.g. reasonable access on reasonable notice).

An "access parent" has additional rights, such as the right to access medical and educational records.

Child Support

Unless there are no "children of the marriage" (a legal term), there will be issues of child support to be settled. Generally, the Courts will use the Federal Child Support Guideline tables in determining who pays how much child support to whom.

The Ontario Ministry of the Attorney General has a web page which explains how the Federal Child Support Guidelines work in this Province.

Spousal Support

Spousal support may be payable by one spouse to the other, and will be calculated based on the payor spouse's ability to pay and the payee spouse's need for support. The length of time for which spousal support will be payable usually depends on the length of the marriage and the amount of time it should reasonably take for the payee spouse to become financially independent again.

Equalization of Net Family Property

If a married couple can not (or does not) agree about how to divide the property they own at the end of their marriage the law provides a method which will be used by default. The rules which make up the net family property equalization scheme are set out in the Family Law Act. Once the value of all property is known, once there is agreement as to what if any property is excluded, and once the date of separation is known, the equalization of net family property calculations are reasonably straight forward.