The Basics

First off, you do not need to show that the other person was at “fault”, so long as you have been living separate and apart and there is no possibility of reconciliation, you can apply for a divorce.

A divorce most commonly requires a year of separation before it can be granted however, the application process may start before the year is up. Exceptions to this rule require exceptional circumstances such as adultery or physical/mental abuse or cruelty.

Even if the exemption does not apply to you, you may start the application for divorce before the year is up. This approach still requires a year wait, but effectively cuts down waiting time once the year is up.

A divorce may be contested or uncontested. With the uncontested divorce process, the affected parties generally agree upon the terms of divorce, and reach consensus without the need for a trial or extensive court processes. With the co-operative nature of uncontested divorces, it is cheaper and faster than contested divorces.

The contested divorce process essentially exists in opposition to uncontested divorces. Complex legal issues, financial issues and increased layers of court proceedings all commonly arise in contested divorces. In both scenarios, it is wise to seek legal counsel to inform an involved party of their rights, possible strategies and experienced advice.

Notable Steps in the Process:

Divorce requires an Application to an appropriate court. The Application will need to be served on the other partner and any other parties involved. Proof of Service also needs to be filed with the court. The person bringing the application is called the Applicant and the spouse is called the Respondent.

The Respondent has 30 days to serve and file an Answer. Should the Respondent not do this, the process may continue with documents that may still satisfy a judge’s criteria for divorce.

Approximate Length of Divorce Process:

The court process may take roughly 3 – 4 months in uncontested divorces.

Several factors may affect the length of time of divorces in general. These factors include the spouses’ location, ability to cooperate, the court in which the Application is filed, division of property issues, child custody and access, as well as any issues related to support.

For further information regarding a the divorce process in Ontario, do not hesitate to contact us.

Legislative Provision – Section 8 of the Divorce Act

• (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
• Breakdown of marriage

(2) Breakdown of a marriage is established only if

• (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
• (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
  • (i) committed adultery, or
  • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses

Recent Successes

1) J. v. A.

J and A submitted a Joint Divorce Application after 33 years of marriage. Their Application was rejected because it was unclear whether J was the same person listed in both her Divorce Application and Marriage Certificate.

Can lack of clarity lead to a rejection of a Divorce Application?
Yes, it can, if there is a question as there was in this case, whether J was the same person on the Divorce Application as well as the Marriage Certificate.

AP Lawyers was able to help J by submitting Affidavit Evidence proving her identity and her Divorce Order was granted shortly thereafter.

2) L. v. J.

18 months after the parties separated, L retainedAP Lawyers to assist her with a simple Divorce Application. The parties had 2 children and despite multiple requests by L who lived primarily with the children, J would not pay child support. L no longer cared and just wanted a divorce.

Are Divorce and child support connected?

We were able to advise L that based on our experience, if parties are unable to show that the children would be adequately provided for, a court is unlikely to grant the divorce.

We were able to assist L in getting child support for the children and being able to convince the court that the children were being adequately provided for, the Divorce Order was granted.

Once parents with children separate, the issue of support for the children needs to be dealt with as quickly as possible. .

During the separation process (whether culminating in a divorce or not), a child will likely spend most of his or her time at one parent’s home versus the other. When a child spends most of their time at one home, the parent in that home will likely rack up higher expenses for raising the child. That parent isn’t left out in the cold as they must get help from the other parent. The other parent must pay money to the parent/primary caregiver to help with the expenses of child raising; this is called child support.

Dependent Children

There is a legal duty for parents to support their dependent children. The law defines a dependent child as anyone under the age of 18 unless they have married or have voluntarily withdrawn from parental control and became independent by the age of 16. In the case that a child is enrolls in a full-time post-secondary degree and/or has a disability, child support may extend beyond the age of 18.

Parents/caregivers can work out a support agreement for themselves. When this is not possible, getting legal services (which we can certainly provide) can help hammer an agreement out that both parents can agree upon or pave the way for an order of support. A parent can apply to court for an order of support. An order of support is the main way in which child support becomes legally binding.

Information required to determine Child Support Payable

Naturally, financial information is required including things like income tax returns, statements of earnings from employer (or from the parent if they own a business), and notices of assessment/reassessment. The parent paying (payor) the child support must update their financial information if the other parent requests it. Generally, updates can be requested once a year.

The Family Responsibility Office

The Family Responsibility Office of Ontario (FRO) is the legal enforcer of payments. In several ways, the FRO acts as a buffer or intermediary for the courts and each parent by handling things between the parties such as receiving and forwarding payments, taking necessary action where payments are missed and collecting payments from payor parents outside the jurisdiction. The court automatically files all support orders with the FRO.

Child Support Guidelines

The Child Support Guidelines is used in determining how much a payor parent should pay for child support. The Child Support Guidelines has a table for each province and territory which shows how much support should be paid, based on the payor parent’s gross income.

If you are a step-parent, the court may order that you pay an amount lower than the Table Amount.

Also, in Shared Custody situations an amount less than the Table amount may be ordered. In these cases, the court will figure out the Table amount payable by each amount and will subtract the smaller amount form the larger amount. The same could also apply in Split Custody situations.

Special or Extraordinary Expenses

In addition to paying support according to the table amount, payor parents may have to contribute towards expenses such daycare, medical or dental insurance premiums, medical expenses, extra-curricular activities, etc.

Which Table applies to me?

The table amount to be applied depends on the circumstances. For example: if the payor parent lives in Saskatchewan and the child lives in Ontario, the Table for Saskatchewan will apply. If both parents live in Ontario, then the Ontario Table will apply but if the payor parent lives in the United States as an example, and the other parent lives in Ontario then the Table for Ontario will be used.

Imputing Income

The Child Support Guidelines allows the courts to imput income to a parent in certain circumstances, most often where a parent is intentionally unemployed or underemployed. The relevant provision reads as follows:

Imputing income

• 19. (1) The court may impute such amount of income to a spouse as it considers appropriate in the circumstances, which circumstances include the following:
  • (a) the spouse is intentionally under-employed or unemployed, other than where the under-employment or unemployment is required by the needs of a child of the marriage or any child under the age of majority or by the reasonable educational or health needs of the spouse;
  • (b) the spouse is exempt from paying federal or provincial income tax;
  • (c) the spouse lives in a country that has effective rates of income tax that are significantly lower than those in Canada;
  • (d) it appears that income has been diverted which would affect the level of child support to be determined under these Guidelines;
  • (e) the spouse’s property is not reasonably utilized to generate income;
  • (f) the spouse has failed to provide income information when under a legal obligation to do so;
  • (g) the spouse unreasonably deducts expenses from income;
  • (h) the spouse derives a significant portion of income from dividends, capital gains or other sources that are taxed at a lower rate than employment or business income or that are exempt from tax; and
  • (i) the spouse is a beneficiary under a trust and is or will be in receipt of income or other benefits from the trust.

Child Support and Access

Lastly, payment of child support is not dependent on whether a person gets access to the child or not. A parent may be obligated to pay child support even if they have zero access to the child. Conversely, a parent can continue to have access to a child even where child support payment is owing.

Imputing income for Child Support

One of the most fundamental issues that accompanies a separation/ divorce for parties with children is the matter of child support. In Canada, a judge can effectively ‘impute’ the income of a parent to be paid for child support purposes. Parents have an obligation to jointly support their children based on their income and ability pursuant to Section 26.1(2) Divorce Act.

Family lawyers are experts when determining how much of a parent’s income is accountable for child support. This is based on the payor parent’s gross income compared to the value in the corresponding Federal Child Support Table. The judge has the discretion to establish the amount of income to be imputed based on that parent’s earning capacity and not necessarily what that parent currently earns. This is a result of complications that can arise in situations when a parent is self-employed and their income tax documents do not accurately emulate their income or when the payor parent intentionally chooses to be unemployed or in a position with a low salary in order to avoid their moral and legal obligation to pay child support.

Section 19 of the Federal Child Support Guidelines (“the Guidelines”) outlines situations that a judge can order income imputed to a parent. As the court has the autonomy to use their discretion in such scenarios, income can also be imputed in situations not listed in Section 19 of the Guidelines. Courts will always place the interests of the child first and place precedence on the child’s right to support over the parents interests. Therefore, should child support payments become an issue in a family law matter, the court can effectively intervene and critically analyze a parent’s career decision and/or how they operate their business. The onus of proof will be placed upon the parent owing child support payment.

When is income likely to be imputed to a payor?

Section 19 of the Guidelines states that imputed income can occur in any of the following nine scenarios. Note that this is a non-exhaustive list:

• The payor parent is exempt from paying federal or provincial income tax.
• The payor parent receives their income from a trust that they are a beneficiary of.
• The payor parent did not comply with their legal obligation to disclose income information.
• The payor parent is unreasonably deducting expenses from their income.
• The payor parent is not reasonably generating an income from the use of their property.
• The payor parent intentionally continues to remain unemployed or under-paid in their employment.
• The payor parents lives in a country where the tax rates are much lower than Canada’s.
• The payor parent is diverting their income to alter the amount of child support paid.
• The payor parent acquires a portion of their income from dividends, capital gains and/or other sources that have a lower tax rate or are exempt from tax.
• In the case of Risen v. Risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the court stated that although Section 19 of the Guidelines sets out a non-exhaustive list, and the court has the discretion to deviate from it, the case must bear some similarity to the scenarios enumerated. Also inMascarenhas v. Mascarenhas (1999), 44 R.F.L. (4th) 131 (Ont. Ct.)(Gen Div), the court held that any scenarios where the court must use their discretion outside of the list enumerated in Section 19, should bear some resemblance.

In the case of Risen v. Risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the court stated that although Section 19 of the Guidelines sets out a non-exhaustive list, and the court has the discretion to deviate from it, the case must bear some similarity to the scenarios enumerated. Also in Mascarenhas v. Mascarenhas(1999), 44 R.F.L. (4th) 131 (Ont. Ct.)(Gen Div), the court held that any scenarios where the court must use their discretion outside of the list enumerated in Section 19, should bear some resemblance.

Case Law

Case law is imperative to the matter of imputed income as the courts have a broad discretion on determining the amount of child support to be paid.

In Contino v Leonelli-Contino 2005 SCC 63, the court initially imputed the father’s income according to the Federal Child Support Table. However, after analyzing the child’s custody and access, the court determined that the father owed less than what was specified in the table because the child lived with the father approximately 50% of the time.

Another case that displays the courts discretion is Quintal v. Quintal 1997 9576 (ON SC) where a father who was forced to resign for his retirement asked the court to vary his child support payments because his income significantly plummeted from $51,577 to a pension of $12,288. The court reduced his child support payments for six months as he stated he was actively seeking employment elsewhere and therefore unable to make his child support payments. Actively seeking employment is a debateable point in almost all cases as the father could have intentionally been unemployed. However, the court granted him six months until his payments increased again whether he was employed or not because his health, desire and expectation to find employment justified imputing income to him in the reasonably foreseeable future, if not immediately.

The main issue among all imputed income cases is that the court will always place the child’s interest first as it is not fair for them to bear the financial consequences of a parent’s misconduct.

One of the most popular circumstances where a court will impute income as mentioned above is when a parent intentionally leaves a secure employment to pursue self-employment. This can be for whatever reasons the parent chooses as they have the autonomy to do so. However, the parent must be responsible to still maintain their child support payments regardless of their endeavours. The court can exercise their discretion and may vary support payments for a specific time period.

In Depace v. Michienzi(2000), 5 R.F.L. (5th) 40 (S.C.J.), the court stated that they may allow a “grace-period” to account for start-up loses a parent may face.

Further expressed in Visnjic v. Visnjic (2000), 7 R.F.L. (5th) 195 (S.C.J.), the court held that if a parent wishes to engage in self-employment they must continue to meet their financial responsibilities out of their capital or through borrowing. Where a parent chooses to venture into a self-start-up career outside of their usual domain, a court will most likely impute income as displayed in Le Page v. Porter (2000), 7 R.F.L. (5th) 335 (S.C.J.) where the parent left working as a social worker to engage in stock speculation and real estate investing. The parent did not speculate that his income would plummet as much as it did; however, pursuant to Section 26.1(1) Divorce Act, he had an obligation to pay child support and his income was imputed effectively.

Conclusion

A court can impute income from a parent in many different scenarios based on their discretion. There are many different circumstances that will warrant an income to be imputed, as displayed above, and many that are reasonably foreseeable based on the non-exhaustive list under Section 19 of the Guidelines.

It is important to be prepared in such matters and to know if income may be imputed to you. At  AP Lawyers, we have many years of experience and know what the court is looking for when they are determining whether or not to impute income to a parent. We can represent and assist you should you find yourself in a vulnerable position and either require child support payments from a spouse or are the spouse owing child support payments.

Contact us online, by email at [email protected], or call 289-622-7662.

Recent Successes

1) L. v. P.

When L and P separated following a very short affair, they agreed to a shared custody arrangement. They believed that because parenting time was shared, they did not have to deal with child support as each would provide for the child when the child was in his or her care. L earns $70,000 per annum; P earns $120,000 per annum.

Five years after, L brings an Application for ongoing and retroactive child support. L also claimed the child lived primarily with her. Angela Princewill was able to negotiate a favorable settlement for P where he only had to pay the set-off amount of child support and $0 for retroactive child support. This saved P thousands of dollars in retroactive child support payments and both parties saved tens of thousands of dollars in legal fees.

2) W. F. v. W. M.

The parties were married for 10 years. They had no biological children. W.F. had a child from a previous relationship who lived primarily with W.F. and W.M.

W.M. believed he shouldn’t have to pay child support because he was not the child’s biological father.

Angela Princewill was able to prove that W.M. stood in loco parentis (in place of a parent) and so should pay the full table amount of child support.

3) V.J. v. U.B.

V.J. brought a Motion to change child support because the child in question now attended post-secondary school, outside the province. AP Lawyers was successful in ensuring child support payments continued to our client U.B.

4) E. v. T

In this case, E was unable to get T to pay for the children’s daycare. She felt her child support payment was enough to cover the cost of daycare. Through negotiations, we were able to get T to recognize through her counsel that child support payment does not include daycare which is considered a special/extraordinary expense.

T then only agreed to paying half the cost of the children’s daycare. While a step in the right direction, it was insufficient as you see, T made 70% of the parties’ NDI (Net Disposable Income.)

Also, given that T was self-employed, there were concerns if her full income was being disclosed.

T decided to bring a Court Application, which we thought was ill advised. AP Lawyers representing E, requested extensive disclosure on T’s business activities and the appropriateness of a lot of her business expenses.

An Order was issued on consent with E receiving $800 more in child support payments monthly and T paying 70% of the child’s daycare.

It was a huge win for E given the children were aged between 4-8 years old.

What is spousal support

In the eyes of the law, spousal relationships are essentially financial partnerships. Accordingly, when a relationship ends through divorce or separation one party may be required to assist the other through financial support – legally referred to as spousal support. Judges on a case-by-case basis determine whether spousal support is appropriate, the amount and length of time that it should be paid.

Who can claim spousal support

In order to claim spousal support you must fall within the legal definition of a “spouse.” There are two statutes that define “spouse”: the Divorce Act and the Family Law Act (FLA). When claiming for support you must do so under one of these statutes.

The Divorce Act is a federal statute, which can be applied any in province. Under this statute, either of two persons who are married to each other can claim for spousal support (s. 2). If a divorce has already been granted, support claims can only be brought under the Divorce Act and not the FLA.

The FLA is a provincial statue, which governs family issues within Ontario. Under s. 1 of the FLA “spouse” includes:

• Either of two persons who are married to each other or have entered into a marriage that is voidable or void in good faith;
• Either of two persons who are not married and have cohabited continuously for a period of at least three years in a conjugal relationship; and
• Either of two persons who are not married but who are in a relationship of some permanence if they are the natural or adoptive parents of a child.

If spousal support has been decided under the FLA and the parties then decide to get a divorce, the spousal support order remains in force until the Divorce Act puts a new order in place. In the event the parties have an order from the FLA and choose not to pursue a claim for spousal support under the Divorce Act, there will be no changes made to the support order under the FLA.

Factors considered in determining spousal support

Both the Divorce Act (s.15.2) and FLA (s. 33(8) have a set of principles to establish entitlement. The courts have held that the main concern is to redress the economic consequences of spousal relationships. The factors taken into consideration to determine this are: length of the relationship, the parties’ financial circumstances, and the roles the parties fulfilled while together.

The Supreme Court of Canada, in Bracklow v Bracklow identified three models in determining the basis for spousal support:

• Contractual: where the court will consider agreements between the parties to create or limit mutual support obligations
• Compensatory: where the court will compensate a spouse who suffered economic disadvantage due to the marriage or where a spouse has contributed to the economic advantage of the other spouse
• Needs based: where the court will consider the needs, means, and other circumstances of the spouse in order to determine if they are able to support themselves without the assistance of the other party.

The Role of Conduct in determining spousal support payments

Misconduct is not a consideration in spousal support orders under the Divorce Act (s. 15.2(5)). However, under subsection 33(10) of the FLA the court may consider misconduct in rare cases. For instance, whether a spouse has been unfaithful will not be taken into account under the Divorce Act, but it can be a consideration in making a spousal support order under the FLA. The misconduct must have obviously and grossly attributed to the breakdown of the marriage.

Moreover, entering a new relationship does not disentitle you to spousal support. However, it is a factor in assessing need and will mitigate the amount of spousal support based on the contribution of the new partner.

Factors considered in assessing the amount and duration of spousal support

Neither statute specifies directions as to the quantum of spousal support. The process requires that both parties exchange financial information and prepare budgets showing spending patterns during the relationship and current need. The standard of living during the marriage is the main factor in assessing the appropriate level of support. However, the payor’s income will also be considered and may limit the ability to replicate the pre-separation standard of living. The court will look at the payor’s income throughout the relationship, their present employment, as well as potential earnings. In other words, if the payor ceases to be employed shortly before or after separation, their obligation to pay spousal support does not cease.

Other examples of factors that may be considered by the court are: mental and physical health, amount of child support, need for education/training to become self sufficient, duration of marriage, domestic contracts and loss of career opportunities due to responsibilities to the household during the marriage.

Unlike child support, there are no mandatory guidelines in assessing spousal support. Since 2008, Ontario courts have used the advisory Spousal Support Guidelines as basis for determining how much spousal support should be paid and for how long. Although they are not mandatory, lawyers and judges regularly use them. Essentially, information in the particular case is factored into a very complex formula to calculate a low, middle and high range of support amounts to be considered. It is important to note, the courts maintain discretion in assessing spousal support on case-by-case basis and as such there is no guarantees as to how much will be awarded.

Where there is a material change of circumstances after an order has been made, either spouse may apply for re-assessment of amount and duration. For instance, in the event the judge states that child support has been used to limit spousal support, it is possible to apply to the court to have spousal support increased once child support is no longer necessary.

Final Spousal Support Orders

The court will give a final support order that may be indefinite, time limited or subject to review. An indefinite order means spousal support will only be varied if there is a material change in circumstances. For instance, if the recipient spouse becomes financially independent the payor may be able to apply to reduce or eliminate spousal support. Time limited orders are often provided in short-term marriages where there is evidence that the recipient spouse will find employment in a specific time frame or where they are not making reasonable efforts to find employment. Finally, where there is uncertainty at the initial decision, the court may order that a review of the spousal support order take place after a fixed period. Review orders are available under the Divorce Act, however, it is discretionary under the FLA.

Temporary Spousal Support orders (interim spousal support)

Where a spouse requires financial support immediately it may be possible to attain temporary relief pending a final order. This can be achieved by either having both parties agree to an arrangement or by bringing a motion and requesting an order from the court. For interim spousal support. The purpose for interim spousal support is to permit the dependent spouse to live in reasonable comfort in accordance with the parties’ means, pending a final decision on the issue.

Lump-sum spousal support

A lump-sum payment is a one time payment where no further spousal support may be provided thereafter. A party can request a lump-sum payment subject to the availability of sufficient resources. This would be most appropriate where the parties want a clean break; where the payor spouse is at high risk of default, or; after a short-term marriage where the award is minimal. For tax purposes, it should be noted that a lump-sum payment is not taxable in the recipient’s hands or tax deductible to the payor.

AP Lawyers can assist you with your spousal support issues. Contact us for a consultation to discuss how we can help you.

Property Claims and Equalization of Family Property

Property Claims:
Upon separation or divorce, couples have to deal with the often complex issue of dividing their property. It’s worth noting that unlike support, property division is an area in which common-law partners without cohabitation agreements often run into difficulties.

Common-law partners do not enjoy the same privileges that outright married couples do. It might be easier to say that common-law partners, although often honoured legally, do not have the same extent of privileges as married couples in the eyes of the law. For example, there is a significant difference is in the treatment of the home in which the couple cohabited. For married couples matrimonial homes are treated specially in relation to other family property.

Also, common-law spouses are not automatically entitled to equalization of net family property, there are other common-law rules however that can be used to ensure that common law spouses get a reasonable share of the family property upon separating from a partner who has title to the property

Married couples are entitled to more rights and privileges in regards to property claims and this includes the matrimonial home. Both parties have equal rights to reside in the home. Also, exclusive possession of the home may be granted to either partner regardless of the name on the ownership documents, or if it is jointly owned, regardless of the perception that one person is entitled to the property if they earn more or brought more assets into the marriage or accumulated more at the end of the relationship. The law sees the marriage as an equal partnership between the two partners.

Section 24(3)(4) of the Ontario Family Act which determines whether the court will make an order for exclusive possession states that the court shall consider,

• (a) the best interests of the children affected;
• (b) any existing orders under Part I (Family Property) and any existing support orders;
• (c) the financial position of both spouses;
• (d) any written agreement between the parties;
• (e) the availability of other suitable and affordable accommodation; and
• (f) any violence committed by a spouse against the other spouse or the children.

At AP Lawyers we always start by looking at the issue of ENTITLEMENT. By asking the right questions and understanding the nature of the relationship, we can determine the threshold question – is there any entitlement to spousal support in this particular case?

Income disparity alone does not create entitlement to spousal support.

An often-overlooked factor, is the basis of entitlement to spousal support? This affects how much spousal support will be payable.

Recent Successes

J. v. A.

In J v. A the parties were married for 7 years. They had a son – who was 6 years old. J was the primary caregiver to their son and worked for himself on a part time basis so he could care for the child. Upon separation, the parties agreed to a shared parenting plan but in reality, the child was in J’s care for most of the time.

We were able to negotiate spousal support at the high range for J as it is important for the child to enjoy a similar standard of living in both homes. We achieved this despite A’s position that she should pay no support because of the shared parenting arrangement.

P. v. A.

P retained Angela Princewill after unsuccessfully trying for years to get a variation of child and spousal support to be in line with A’s income increases as initially agreed to by the parties.

We got A to pay a substantial amount for retroactive child and spousal support.

A wanted income imputed to P who intended to return to school to retrain for a new career. Angela Princewill successfully set ongoing spousal support for another 5 years with no income imputed to P. This would allow P complete two years of school, find a job and get more stable in her job before spousal support terminates.

J. v. M.

Shortly after separation, J moved aggressively for a sale of the matrimonial home. M was concerned about her survival as she was unemployed and could not afford to qualify for a mortgage or even rent a place with no income.

We vehemently resisted the home being listed for sale, until the issue of spousal support was resolve by a court Order.

K. v. R.

K and R had a very amicable separation. R helped K find a new home, secure a mortgage and even helped with the actual move.

R then drafted a Separation Agreement which he convinced K was heavily in her favour and asked her to sign it, without independent legal advice.

Thankfully, K sought legal advice from Angela Princewill.

K was offered $0 in child support, $3,000 in spousal support and half the proceeds of sale of the matrimonial home only. Angela Princewill got K $2,300 for child support, $3,200 in spousal support, half the proceeds of sale of the matrimonial home, plus an additional equalization payment of $360,000.00.

When a marriage breakdown, or parties who are cohabiting separate, they must resolve certain issues which could include:

• Custody
• Child support
• Division of Property
• Access
• Spousal Support

These issues can be resolved by the parties through negotiation, mediation and/or Arbitration.

Physical separation is not a prerequisite. In Ontario, separation is recognized even though the parties continued to live in the same home.

The best-case scenario at the end of a relationship is entering into a Separation Agreement, which articulates the parties’ settlement terms and ensures the parties avoid the difficult and expensive litigation process.

The end of a relationship is always difficult and uncertainty about the legal ramifications can compound the difficulty.

It is important to seek legal advice from competent legal professionals even when you and your partner are “amicable”. This is where AP Lawyers come in. As experienced negotiators, we work with our clients to get them the best possible deal while maintaining the spirit of co-operation necessary to reach a final deal.

Too often, parties who believe they are amicable negotiate, draft and sign their Separation Agreements without the involvement of lawyers. We strongly advice against this. Here are a few of the issues we have observed in scenarios where parties have drafted their own Separation Agreement:

• Lack of clarity on terms of the Agreement
• One party gives too much due to a lack of understanding of the law
• One party receives too little because they did not understand the law and even if they did, they were coerced into the agreement
• Fail to address foreseeable future events
• No mechanism provided for change
• Contradictory provisions that affect the interpretation of the agreement
• Insufficient financial disclosure either due to lack of knowledge or manipulation by one party
• Issues inadvertently left unresolved
• Lack of independent legal advice which makes it easy to set aside the Separation Agreement.

We could go on, but we think you get the idea. Unfortunately,the costs and consequences of a poorly drafted Separation Agreement greatly exceeds the cost of getting it right the first time.

Angela Princewill and her Associates at AP Lawyers have negotiated and drafted hundreds of Separation Agreements. These Agreements have ranged from the simple to the complex, involving various other financial, tax and medical professionals.

S. v. C.

The parties negotiated, drafted and signed their Separation Agreement without involving lawyers.

10 years later, the parties were in litigation over the issues of child and spousal support.

S understood one thing, C understood another, and the Separation Agreement was not clear. Even worse, the terms were contradictory. S sought back payment of about $350,000 because of significant post separation increases in C’s income. We believed C owed S nothing based on his understanding of what he signed.

Ultimately, we settled the matter for only a fraction of the $350,000 and an amount that was much less than the legal fees if we were to take the matter through to Trial.

C is a busy professional and was thrilled with the result. Not only did he not have to waste time and money attending court, he was able to protect his future income.

This was a very expensive lesson for both parties who spent tens of thousands of dollars in legal fees. The animosity could have been avoided and a Separation Agreement could have been prepared for 1% of the legal fees the parties had to later incur.

C. v. M.

After 26 years of marriage, C and M agreed they will be happier apart, than together.

C consulted with AP Lawyers and Angela Princewill advised her that given the level of cooperation between C and M, and the simplicity of the issues, C could actually negotiate settlement ideas with M directly.

Angela Princewill educated C on her rights and obligations. She advised C on various options that would work for C’s family and armed with this knowledge, C and M were able to agree on settlement terms, subject to each one obtaining independent legal advice.

Angela Princewill believed the settlement terms were fair and proceeded to draft a Separation Agreement for the parties.

M was given a chance to review the draft to ensure the draft reflected what the parties had agreed to. He also obtained independent legal advice, so he also understood the legal ramification of the Agreement. M signed the Separation Agreement with his lawyer while C signed hers with us.

Many couples in Canada choose to live together without getting married. Approximately 17% of couples living together are cohabitating in a common-law relationship.

However, this number does not accurately reflect the real rate of couple cohabitating together, which in fact is much higher.This is because many couples just choose to live together without reporting that they’re in a common-law relationship. Other relationships are so short-lived that the parties do not meet the definition of common-law under the Income Tax Act, or the Ontario Family Law Act.

The Canada Revenue Agency considers you to be in a common-law relationship when you have cohabited for 12 months, however, common-law relationships for family law purposes are defined differently all-around Canada.

In Ontario, for spousal support purposes¸ it means two persons who are not married to each other and have cohabited,

(a) continuously for a period of not less than three years, or

(b) in a relationship of some permanence, if they are the parents of a child as set out in section 4 of the Children’s Law Reform Act.

Regardless of the situation, it is important to protect yourself, especially when you choose to own property with your partner or are bringing in valuable property into the relationship.

A cohabitation agreement typically lays out terms for division of assets and spousal support when a common-law relationship comes to an end. This is similar to a marriage contract in that it outlines each spouse’s rights and responsibilities. Such written agreementbecomes enforceable if unfortunately,the relationship ends.

Should you get married to your partner, your cohabitation agreement automatically becomes a marriage contract without any further action required.

Many people have misconceptions about cohabiting, thinking their assets and finances are protected because they did not get married. This could not be further from the truth.

Firstly, marriage is not a prerequisite for entitlement to spousal support. Secondly, when it comes to property division, there are Trust Laws that can be applied so that property is divided as though the parties were married.

The only way to achieve some level of certainty is to enter into a property negotiated and drafted cohabitation agreement.

At AP Lawyers, we follow our standard 6-step process of:

1. Consultation
2. Communication
3. Disclosure
4. Negotiation
5. Drafting
6. Execution

We have helped people from all works of life to draft cohabitation agreements that they are happy with. Some own significant assets, while others want to protect assets they will acquire in the future. The one thing they all have in common is that they want to define the terms should the relationship fail, rather than leaving things to chance and uncertainty.

Commonly referred to as a ‘prenup,’ a marriage contract, under section 52 Family Law Act, is an agreement outlining the terms parties have agreed to usually on how to resolve certain issues on a breakdown of the marriage.

It will usually address how you and your spouse will divide your finances and assets. Everyone can benefit from a marriage contract, even if you only have a small amount of assets. This agreement will protect your separate property, support your estate plans, define what property is considered marital or not, save money in reducing conflicts, outline special agreements, and establish any procedures/protocols you may want to follow for deciding on future matters between you and your partner.

The valuable characteristic of marriage contracts is that the couple have the autonomy to decide almost everything. If a marriage contract is non-existent, divorce becomes a nightmare and each spouse is essentially left unprotected and vulnerable. By outlining rights and responsibilities, it becomes easier to divide everything and adhere to any special arrangements regarding support, property, education, etc. without having a court decide for you.

It is the dreaded conversation that no one wants to have before marriage; however, the consequences of this may lead to difficult months and sometimes even years settling everything.

One of the most common mistakes a couple makes regarding marriage contracts is not knowing that they can still enter into an agreement after they are married. Should a couple choose not to address a marriage contract before marriage, they are able to enter into one after marriage as long as they are not doing so with the intention to get divorced in the near future.

At AP Lawyers, we follow a 6-step process with a couple who want to draft a marriage contract

1. Initial consultation – We spend time at this stage clarifying your objectives. Before providing any advice. It is imperative that we understand what you are trying to accomplish.

We then advise you on the legal implications of your goals and show you how we can draft an agreement that helps you achieve your objectives, while also ensuring that the possibility of it being challenged in the future is minimized.

2. Following the consultation, you can either discuss with your partner, or we can write to him or her, outlining the proposed terms of the marriage contract.

3. You exchange disclosure documents.

4. If your partner would like to incorporate some of his or her goals or negotiate different terms, we advise them to retain their own counsel and the negotiations is done through counsel to avoid any friction between the parties.

5. We draft the marriage contract and the party who is not our client must obtain independent legal advice

6. The marriage contract is signed by both parties and their lawyers.

Most marriage contracts cover:

• What happens with property each party brought into the marriage?
• What happens to the matrimonial home if it was owned by one party prior to marriage?
• How would property be divided if the parties separate?
• Are there specific assets that a party wants to exclude for various reasons?
• What happens to their property in the event of death?
• Would spousal support be payable on separation?

Remember, that if you do not answer and define what you want, you are left at the mercy of the law in force at some point in the future and chances are, you will not be happy with that result.

At AP Lawyers, we always recommend alternative dispute resolution processes, always starting with negotiations between lawyers.

Many matters settle at the negotiation phase. Others progress to mediation and/or arbitration.

However not all cases settle, and many others are unsuited for alternative dispute resolution. This means, the parties would have to resort to the courts to settle their disputes.

Parties always have the right to go straight to court to resolve their disputes except there is an earlier Agreement in which the parties have agreed to an alternate process.

If litigation is the next logical step or if the client already started the process before retaining us, we go over in detail, the steps in a Family Law Litigation matter.

STEPS IN A CASE – Family Law Matters:

PLEADINGS

• Application
• Financial Statement
• Custody Affidavit
• Answer to Claim
• Respondent’s Financial Statement
• Respondent’s Custody Affidavit
• Reply

FIRST APPEARANCE
CASE CONFERENCE

• Case Conference Briefs
• Financial Statements OR Affidavit (if no change or minor change)

SETTLEMENT CONFERENCE

• Settlement Conference Briefs
• Financial Statements OR Affidavit (if no change or minor change)
• Offers to Settle
• Net Family Property Statement

TRIAL MANAGEMENT CONFERENCE

• Trial Management Conference Briefs

TRIAL

OFFERS TO SETTLE –

• Can be made at any point throughout the case to settle some or all issues

MOTIONS –

• These are proceedings brought to deal with issues that cannot wait to be determined at Trial.
• Absent a situation of urgency, motions cannot be heard before a Case Conference.
• Orders at motions are usually temporary if it is for a substantive issue e.g. spousal support.
• Motions may also be effective for procedural matters such as getting an adjournment where it is contested or getting basic disclosure where it is overdue.

When parties who are parents of minor children separate or divorce, it is important that they articulate their agreement on how they will co-parent following separation or divorce.

The terms they agree to are then written in a document called a parenting plan. Parenting plans can also be included in a Separation Agreement.

Parenting plans are also helpful where the parties are in the litigation process, cannot come to an agreement and are relying on the judge to make the appropriate order.

By having a carefully thought out parenting plan, you demonstrate to the judge that you have thought through the idea of what is in the best interest of the child.

Indeed, a great parenting plan forces you to consider various aspects of the care of the child and you can plan in advance how to approach various aspects of the child’s life.

Without a plan, parties can often make merely emotional decisions without thinking of their responsibilities to the child and the challenges that follow co-parenting after separation.

A parenting plan should include/answer the following questions:

• How are important decisions affecting the child going to be made?
• Who makes the day-to-day decisions?
• Where will the child live primarily?
• Will the time be shared equally or will the child live with one parent most of the time?
• Are the times for pick up and drop offs specified to avoid confusions?
• Is the location for pick up and drop off specified?
• Does a long weekend or PA day alter time and location for pick ups and drop offs?
• How will holidays be shared?
• How will the parties exchange information regarding the children?
• Can belongings be shared between the homes or would each parent provide separately for when the child is in their home?
• How will the parents communicate with the child when he or she is in the care of another?
• If travelling with the child, what kind of notice is required.
• Do both parents have access to information regarding the child, if no, why not?
• What is the arrangement for parent-teacher nights? Does only one party attend? Do both attend together or separately?
• Can both attend school field trips? How will this be scheduled?
• How would changes be incorporated into the parenting plan?
• Is there a dispute resolution mechanism in place?These are just a few of the questions we consider at AP Lawyers in drafting a parenting plan.

Recent Successes

1) A. v. M.
When A and M separated there was a lot of animosity between them but surprisingly within 2 months, the parties were able to agree to a parenting plan for their daughters who both had special needs.

They agreed the children would live primarily with A and M would pick them up for dinner every Wednesday and would have the girls in his care from Friday after school to Sunday at 8pm.

M started to miss visits and leave A in a bind. She needed the time to herself as she cared for the children solely at all other times and it was no easy task given their special needs. Babysitters for special needs kids are expensive and A could not afford it.

We were able to assist the parties in drafting a new agreement that considered the children’s activities, M’s schedule and A’s needs as an individual. Most importantly, we included provisions whereby M would incur the cost of babysitting if he missed his scheduled parenting time. We also included processes for making decisions regarding the girls that eliminated the conflict that existed.

2) J. v. S.
For J and S the issue was, the defacto parenting arrangement the parties defaulted to after separation was simply not working for anyone except perhaps S, who was adamant in maintaining the status quo. The unspoken concern appeared to have been child support payments S was receiving from J for their 3 children. Since J also had a spousal support obligation, we were able to show S that a change in the parenting schedule would not necessarily lead to her receiving less support payments from J.

Ultimately, with a focus on the best interests of the children, the parties were able to agree to a detailed parenting plan and a parenting schedule that worked better for the children and parents.

It is important to get independent legal advice prior to agreeing to a settlement or signing off on a domestic contract.At AP Lawyers, we respect the parties’ right to negotiate a “fair” settlement and our goal is to ensure that our clients make informed decisions. In other words, the deal may not be “perfect” but provided it is made with complete awareness of the client’s options, we respect it.

Steps to get Independent Legal Advice at AP Lawyers

• 1. Call or email to schedule your consultation.
• 2. Arrive early with a copy of your Agreement.
• 3. A lawyer will review it and make notes on areas of concern or confusion.
• 4. You meet with the lawyer who discusses your goals and objectives, and any questions you may have and gets clarification on their notes.
  • You will receive advice on our legal opinion of the deal reached.
  • We would advice if the deal reached achieved your objectives. If it does not, we would make recommendations that would help you in reaching an agreement that achieves your objectives, while also being legally viable.
  • If there is an agreement drafted, we would advice you if it reflects what was agreed.
  • If there are any errors in drafting, we would recommend changes.
• 5. If the Agreement meets your objectives and the drafting reflects what was agreed to, we will sign off on the Agreement otherwise, we will schedule a follow up signing appointment free of charge.

Under the Ontario Family Law Act, divorced or separated partners are entitled to an equalization of their net family properties. The person with the higher net worth pays to the other, half the difference in their networth.

At a consultation with AP Lawyers we start by reviewing any marriage contracts to determine its validity.

If there is no marriage contract, we go over what would be required in calculating the parties’ net family property. We pay attention to assets and liabilities that existed on the date of marriage as well as properties such as gifts, inheritance and life insurance proceeds which can be excluded from the net family property.

We consider the length of the marriage. If it is less than 5 years, we review the facts in each case to see if equalization would be unconscionable. If it is likely that a case would meet the stringent test of unconscionability, we consider how much, if any, equalization should be paid.

When dividing your family property after divorce or separation, the value of an experienced family law lawyer cannot be overstated. Otherwise, you may find out too late that you overpaid, or that you were short-changed. Neither situation is ideal.

We make sure you get the benefit of every applicable exclusion and deduction. We consider the tax implications for each asset. We ensure each party’s assets are properly valued. We listen and pay attention to the details to identify unusual assets that could otherwise have been missed.

Recent Successes

1) M. v. A.
M and A cohabited for 33 months and married for 18 months. There were factors in the case that justified a departure from the usual 50 – 50 division of net family properties. AP Lawyers applied every possible deduction to reduce M’s net family property. AP Lawyers also got a 70 – 30 split of the net family property in M’s favour.

2) W. v. E.

In W v. E, the parties were married for 23 years but the relationship was a tumultuous one. The central issue here was the date of separation as it significantly impacted the equalization payment payable by W to E.

We were able to show that though W and E were still married and living together in the matrimonial home, they were living separate and apart for the last 3 years. The effect of this was a $500,000+ saving to W for the growth in her assets (mostly stock options) in the last 3 years.

3) T. v. R.

T retained us following the end of her 6 year marriage to R. Both parties had counsel and detailed financial statements were prepared. The main issue here was despite being represented by counsel, R still wanted to receive a deduction for the value of the matrimonial home which he owned for several years and had paid off the mortgage just before marriage.

T and R did not enter into a marriage contract.

Ultimately, T got half the full value of the matrimonial home as there was no reason in law to justify a date of marriage deduction for R.

4) B. v. S.

S received over $1,000,000 inheritance from her father’s estate. Prior to separation, she deposited $375,000 into the parties’ joint bank account. There was $175,000 left in the account on the date of separation.

AP Lawyers only asked to exclude the $175,000 of the inheritance left in the joint account but B, through his lawyers insisted that since the money was deposited into the joint account, it had lost its exclusionary value.

AP Lawyers was successful in getting S the exclusion.

5) H. v. Q.

H received a $500,000 payout from his father’s life insurance policy 4 years prior to the parties’ separation.

H was able to receive a full exclusion with the assistance of AP Lawyers.