Divorce can be granted on only one ground in Canada. The ground is marriage breakdown and it can be proven in one of three ways:
c) Living separate and apart for one year.
Custody and Access
The issues of custody and access can be contentious in a Family Law dispute. There are many ways to resolve the issues including the use of The Office of The Children’s Lawyer, the use of qualified psychologists to provide assessments as well as evidentiary proof provided by family members and other persons in the community.
Custody simply means decision making. If a person has sole custody that individual has the sole decision making powers for the children. In the even of joint custody the decision making is shared.
The court can also rule on the residency requirements for the children within this framework.
Child and Spousal Support
Child support is regulated by the Child Support Guidelines. The Guidelines are simply a chart that shows the amount of support to be paid given the number of children and the income of the payor. Individuals who have the children residing with them for more the 60% of the time will receive child support from the other spouse.
In the event that the children are shared there is an alternative measure to calculate support. Similarly, if the children are split such that some of the children reside with one party and some with the other, there is another split custody formula to deal with the calculation support.
Spousal support is primarily governed by the Spousal Support Advisory Guidelines. This is a software program that has been approved but the Ontario Court of Appeal to calculate the amount of spousal support. It takes into account the years of cohabitation, the amount of child support paid, tax considerations and the parties incomes.
Equalization of New Family Property
This area of law primarily deals with the division of assets. The parties equalize the increase in their net worth from the date of marriage to the date of separation.
In cases where the parties have not been married, unmarried couples may bring issues of property division to the Court pursuant to Constructive Trust, Resulting Trust of Implied or Expressed Trust.
Calcuation of assets that are owned by each individual are values as of the date of separation.
The parties are entitled to take a deduction for net worth assists that are owned on the date of marriage and are entitled to exclude assets that have been inherited, received as gifts as well as other assets that are listed under the Family Law Act provided those assets can be linked to an asset in existence on the date of separation with a further caveat that that asset cannot be the matrimonial home.
Frequently benefits are provided mutually to spouses and children, including health fringe benefits and life insurance benefits.
Pensions are required to be valued under Bill 133. The pension is valued by the pension provider. The maximum cost to be charged for this pension valuation is $600.00 plus HST. Once the application for pension valuation has been received the pension valuator has 60 days to provide the pension valuation.
There are basically three way to proceed to resolve Family Law matters.
The parties may negotiate individually or with lawyers in order to try and reach an agreement. The agreement is then turned into a domestic contract known as a Separation Agreement. If the agreement is negotiated in good faith, fairly and with full disclosure, the agreement will be valid and binding.
If the parties wish to negotiate a settlement to their issues but are unable to reach an agreement they can use an accredited mediator.
While mediators are not required to be licensed at the present time there are accredited mediators that are a member of a provincial organization that are highly trained and have experience in Family Law.
Finally, either party may proceed to Court in order to obtain a remedy.
In many litigated cases the successful party will be entitled to costs against the unsuccessful party. These costs are designed to help alleviate the fees charged in order to obtain a successful result and are fixed by a Judge at each step if the parties elect to have their issues resolved by a Court.