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.

Children typically will spend more time with one parent than the other when parents separate. Therefore, child support is an important issue that needs to be dealt with when parents separate. Parents do not have to file for divorce, nor do they need to be legally married to request child support.

When children live and spend more time in one parent’s care, the expenses for the children are typically more. Yet, one parent should not be burdened with providing 100% of the children’s financial support. They are entitled to seek financial support from the other parent in the form of child support payments.

The Family Courts require parents to be financially responsible for their children. The parent responsible for child support payments is meeting this requirement by paying their share of childcare expenses.

What is a dependent child?

The definition of a dependent child is typically any child that is less than 18 years old. However, if they get married, voluntarily withdraw from parental control, or become fully independent once they reach age 16, they are no longer considered dependent.

However, there are certain exceptions parents need to be aware of that could affect the duration of child support payments. For instance, if the child is disabled or has special needs, or is enrolled in a full-time university degree program, child support payments can continue after the child turns 18.

Who creates the child support agreement?

The parties can enter into these Agreements themselves, or they can bring an Application to the Family courts, asking for a child support order.

How are child support payments determined?

Initially, financial information, such as income tax returns, business statements, pay stubs, and other such documents, are reviewed to determine the income and earning capacity of each parent. From there, the courts rely on the Child Support Guidelines to determine the exact amount of child support.

Can child support payments change?

Yes, child support payments can change and should change yearly based on the payor’s income. The payor is the parent paying child support. The obligation to change child support payment especially where the payor’s income has increased, exists independent of whether or not request is made by the recipient for them to update their financial information. The payor can also request the other parent update their financial information if there has been a change in earning capacity that can impact the amount of child support payable (for e.g. in shared parenting situations) or if there are special and special expenses being paid by both parents.

How are child support payments enforced?

Family Courts will fill all child support orders with the Family Responsibility Office (FRO) to begin enforcement once the order is signed and becomes legally binding. The FRO is responsible for enforcing child support payments using the following methods:

• The FRO takes necessary action when payments are missed.
• The FRO serves as the intermediary between the parents on behalf of the court to ensure payments are collected and issued.
• The FRO collects payments from a parent who lives outside the jurisdiction where their children primarily live and issues those payments to the other parent.

What are the Child Support Guidelines?

The Child Support Guidelines provide a reference for the parents and the Family Courts to use to determine how much child support the payor will need to pay. Each province and territory in Canada has its own tables, and amounts can vary from one area to the next.

Are There Any Exceptions?

There are a few exceptions where the Family Court could lower child support amounts from the Table Amount. For example, in cases of undue hardship, where the payor’s income is very high, or a stepparent, grandparent, or another legal guardian has a financial responsibility to a child, the amount can be reduced.

Does the court look at both parents Table Amounts?

Yes, in cases involving shared parenting, the Family Court will review the Table Amount for each parent to determine their respective payments. The smaller amount is deducted from the larger amount. The difference is typically the amount of the child support payment.

Additionally, when there are extraordinary and special expenses, like daycare, healthcare insurance premiums, medical bills, extracurricular activity expenses, etc., the Family Court will take these into consideration when the payor is fully covering these expenses. As such, child support payments could be reduced. Alternatively, when parents split these expenses, then the amount of child support may not change.

How do I know my Table Amount?

Your Scarborough child support lawyer can assist you in determining your Table Amount. For example, if you reside in Ontario and the children reside in Ontario, then the Ontario Table Amount is used.

On the other hand, if you reside in British Columbia and the children reside in Ontario, the British Columbia Table Amount is used. For payors who reside outside of Canada, and the children reside in Ontario, the courts will use the Ontario Table Amount by default.

What is Imputing Income?

The Family Court judge has the right to impute income as allowed by the Child Support Guidelines. Imputing income is used in various situations such as where the payor has a higher earning capacity and intentionally quit their job, is underemployed, or attempting to circumvent their financial obligation to their children.

The details about imputing income are contained in Section 19 of the Child Support Guidelines as follows:

• 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.

The judge has complete discretion to decide if imputing income is necessary by reviewing situations listed in Section 19 and considering scenarios not covered in this section.

It is essential to remember the courts will always place the child’s best interest first and foremost, including when deciding whether to impute income. To ensure children are receiving financial support from both parents, the judge will intervene when necessary and impute the payor's income to ensure both parents are contributing fairly to the financial support of their children. This financial obligation is covered in in Section 26.1(2) of the Divorce Act and Section 31 of the Family Law Act.

To illustrate, imputing income is common for many parents who are self-employed or are a small business owner. Since there are deductions and tax write-offs they can utilize to lower their gross income, their tax returns do not accurately reflect their earning capabilities. As such, the judge can decide to impute the income of the payor.

How likely will the judge impute my income?

The judge could impute your income for any of the nine reasons covered in Section 19 of the Child Support Guidelines. Equally so, your income could be imputed if you are self-employed, underemployed, own a small business, attempting to hide income, or deliberately quit working. The primary issue when imputing income is holding the parent accountable for their financial responsibilities towards their children.

Can the court stop me from starting a business?

No, the court cannot stop you from becoming self-employed or starting a business. This is entirely up to you to decide. However, the court can hold you accountable for child support and impute your income accordingly. It is the payor’s responsibility to plan ahead so they can continue to maintain their child support payments regardless of their decision to become self-employed or start a business.

What other discretion do courts have regarding child support payments?

The Family Courts can rely on case law relating to other imputing income cases, as well as unique circumstances, to use their discretion to vary child support payments as they see fit while protecting the child’s right to be financially supported by his or her parent.

Past Imputing Income Cases

• In Quintal v. Quintal (1997), 9576 (ON SC), the father was forced to resign and take early retirement. He asked the court to reduce child support payments because his income was drastically reduced from $51,577 to a pension of $12,288. The family court agreed to reduce the child support payments for six months as the father was actively seeking employment, after which the payments would revert to the former amount whether he found employment or not.
• In LePage v. Porter (2000), 7 R.F.L. (5th) 335 (S.C.J.), the court held since the parent decided to leave working as a social worker to engage in a stock speculation and real estate investing venture, and choose to venture into a self-start-up career outside their usual profession, according to Section 26.1(1) of the Divorce Act, the parent still had an obligation to pay child support. Even though the parent’s income plummeted, the court still imputed his income.
• In Visnijic v. Visnijic (2000), 7 R.F.L. (5th) 195 (S.C.J.), the court stated if the payor parent wished to pursue self-employment, they must continue to meet their child support financial responsibility either through borrowing or using their business capital.
• In Depace v. Michienzi (2005), 5 R.F.L. (5th) 40 (S.C.J.), the court held they might allow for a grace period to allow for start-up business losses a payor parent may face when starting a business.
• In Risen v. risen (1998) AC.W.S (3d) 669 (Ont. Ct.) (Gen Div), the family court held that while Section 19 of the Child Support Guidelines establishes a non-exhaustive list of reason to impute income, the court has the discretion to deviate from the list, as the case bears some similarity to the reasons on the list.
• In Mascarenhas v. Mascarenhas (1999), 44 R.F.L. (4th) 131 (Ont. Ct.) (Gen Div), the family court held that in any situations where the court has to use their discretion outside the list in Section 19, it should have some resemblance to the items on the list.

Is a child support agreement dependent on parenting and contact orders?

One common misconception parents have about their child support agreement, and parenting orders is they are dependent on each other. Some parents believe if one parent prevents parenting time for the payor, then the payor does not have to make child support payments.

However, this is not true, and both parents could end up in trouble with the court. Child support orders are considered a separate agreement. So, the payor is required to make payments even when the other parent is preventing them from having parenting time with their children.

Conversely, the payor has a right to parenting time even when they are not making child support payments. When these situations arise, it is best to resolve them with assistance from our Scarborough family lawyers.

Why get help from Scarborough child support lawyers?

There are all sorts of scenarios and situations that vary from one case to another. The circumstances in your case are often different from someone else. Our child support lawyers can provide assistance in determining the financial contribution of each parent to help you get an idea of how much child support you will receive or will need to pay.

Furthermore, we perform an in-depth financial analysis and utilize the Child Support Table to determine the amounts. If you have concerns over situations where imputing income may be necessary, it is better to obtain legal representation.

It is worthwhile to be prepared for child support matters when they arise, whether you will be receiving child support payments or are the payor.

AP Lawyers have been assisting parents with child support matters for numerous years. Our experience with Family Courts, child support payments, and situations where imputing income can occur can be of great value when you need legal advice and representation to resolve child support issues.

For further information or to schedule a confidential consultation to discuss your child support matters, please feel free to contact AP Lawyers in Scarborough.

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.