In the event that a party does not disclose their full financial picture, the other party can later go to court, and attempt to have the Separation Agreement declared null and void. As well, prior to signing the Separation Agreement, both parties must have a different lawyer provide them with independent legal advice, confirming that each party understands the agreement fully, and that they are entering into it of their own free will and without duress. Same-sex couples are obviously also able to separate and divorce, and as well, to enter into a Separation Agreement.

COMMON LAW RELATIONSHIPS

The legal rights and obligations of unmarried couples, whether in opposite-sex or same-sex cohabiting relationships are complicated. Ontario law grants unmarried couples similar rights to married couples. Under Ontario law, both same-sex and opposite-sex common-law couples are referred to as "spouses", and are granted rights as married couples, generally after three years of cohabitation.

On the other hand, under Federal Divorce law, only legally married couples are called "spouses", and all other couples who live together whether same-sex or opposite-sex, are referred to as "common-law partners". The Divorce Act grants them similar rights and responsibilities as married spouses, after living together for just one year.

A common-law relationship is established when two people live together as a couple. If they do not live together, then they cannot be considered to be in a common-law relationship. If they have been living together and later cease to do so, they are no longer common-law spouses. They do not need to bring any legal proceedings in order to end the relationship. On the other hand, once a couple is married, both partners immediately have all of the legal rights and responsibilities that come with marriage. This is not the case with unmarried couples who live together.

Under Ontario family law, you must have lived together for three years, in order to have similar rights and be legally considered as common-law spouses, unless you have a child together. Under the Federal Divorce Laws, the period of time required, as noted above, is one year. There is no legal difference any longer, between children whose parents are married and those whose parents are not. The terms "legitimate" and "illegitimate" no longer apply to children in Ontario law.

A child's right to be supported, to inherit, to use their parent's name, or to receive survivor's benefits, does not depend on the marital status of their parents. Both birth parents and adoptive parents have a legal responsibility to support their child at least until the child turns 18 years of age.

Sometimes the right to support by a child can be extended, if the child continues to be dependent. It makes no difference whether the parents are married or whether they live together. Living in a common-law relationship does not by itself, give one a right to a share of the other spouse's property. In a common-law relationship, the property that you bring into the relationship normally continues to belong to you alone.

If you and your spouse later separate, there is no automatic right to divide it or share its value. Anything you buy for yourself with your own money during the relationship and hold in your name, usually belongs only to you. But property that spouses purchase jointly during the relationship, belongs to both of them. If they separate, these things, or their value, will be divided.

On the other hand, married spouses who separate have an equal right to stay in the family home until it is sold, even if the legal title to the property is in only one of their names. Common-law spouses do not automatically have this right. If the family home is only in one spouse's name, the other spouse is not protected from their spouse selling or mortgaging the home without their written permission.

The general rule is that each common-law spouse owns what he or she brings into the relationship. However, if the common-law spouse who does not own the property made some kind of a contribution toward it, a Judge might rule that the spouse has a right to a share in it. As well, if common-law spouses want to make their own arrangements for sharing or dividing property in the event their relationship ends, they can sign a cohabitation agreement. In the agreement, they can set out and agree clearly, how they intend to arrange their finances during their relationship and how they wish to deal with the property if they separate.

Under the Family Law Act, common-law spouses in Ontario have the same responsibility, as married couples, to financially support themselves and each other. This responsibility may continue after the relationship is over, if one spouse needs support and the other is able to provide it. Many factors affect whether a court will order one spouse to support the other, after the end of the relationship, and if so, for how long. Some of these factors include the length of the cohabitation, whether one spouse was financially disadvantaged by the relationship, and the ability of each spouse to be financially self-sufficient.

Legal responsibility to provide support does not begin as soon as you start living together as a couple. That applies only to couples who are married to each other, or who have lived together continuously for at least three years, or are in a relationship of "some permanence" and have had a child or adopted a child together.

Canada allows same-sex marriages, which is a welcome development in the law. Same-sex couples are also able to enter into a domestic cohabitation agreement between them, to govern their relationship. These agreements may turn into marriage contracts if they later marry each other. In the past, only married, opposite-sex couples had the right to have their property equalized, when the marriage ended.

Due to changes in the the Family Law Act, same-sex married couples now also have this right. As a result of changes in the law, obligations and rights to spousal support now also apply to same sex couples who marry, without having to wait for a certain period of time. Furthermore, a married same-sex spouse now has full access to pensions belonging to their spouse and to their proper share of the property in the event of the death of their spouse.

If you are not legally married, divorce does not apply to you. However, you are still able to negotiate a separation agreement or apply to the court for custody, access, child support and other matters. Common law couples do not have the same rights as married couples to share the property they purchased when they were living together. Normally, items purchased and other property belong to the person who bought them. Common law couples also do not have the right to divide between them the increase in value of the property they brought with them into the relationship. As noted, if you have contributed to property your spouse owns, you may have a right to part of it.

If a common law relationship ends, and you need money to support yourself, you may ask your spouse to pay you support. You can ask for support for yourself if you have been living together for three years, or if you have lived together for less time and have a child together. If you and your spouse have a child together, you can also ask for support for that child. Children of parents living in a common law relationship have the same rights to support from their parents as the children of married couples. Furthermore, if your spouse treated your child as their child while you lived together, you can also ask for support for that child from your spouse.

The amount of support is determined pursuant to the Child Support Guidelines. As part of a support order for you or your child, you may seek to remain in the home you shared with your spouse when you lived together. The judge can order this even if you do not own the home, or if your name is not on the lease. This is to be contrasted with married couples, who automatically have an equal right to stay in the home.

Couples in a common law relationship are also able to enter into a cohabitation agreement to protect their rights. A cohabitation agreement can set out what you both wish your financial and family arrangements to be. It can state who owns the items you purchase while you are living together, how much support will be paid if the relationship ends and how your property will be divided. As well, it can set out who has to move out of the home if the relationship ends.

It cannot, however, set out who will have custody of, or access to, your children if your relationship ends. This cannot be decided prior to the relationship being over. Both of you must obtain separate independent legal advice from a lawyer, prior to signing the cohabitation agreement, and it must be signed in front of a witness, who must also sign the agreement. Prior to entering into a cohabitation agreement, you should each retain a different lawyer and exchange financial information, so that you each know what assets, income and debts the other party has.

CHILD SUPPORT

In the past, an obligation to support children was shared by the parent who had custody of the child, as well as the non-custodial parent, proportionate to their respective incomes. In the last few years however, a new approach has been adopted with respect to child support, that requires the payor of child support to pay an amount that is calculated based both, on his or her income, and the total number of children that are entitled to support.

The income of the parent who has custody of the child or children, and who is the recipient of support, is not taken into account in this calculation in most cases. The parent who does not have custody of the child, is obliged to pay child support to the parent who does have custody. The Child Support Guidelines determine the amount of child support payments.

The obligation to pay child support falls on biological or adoptive parents of a child, and as well, on persons who have a relationship with the child that is referred to as that of a "psychological parent". A person may incur a legal obligation to pay child support even if he or she is not a biological parent of the child, and was not married to the person who has custody.

Family Law provides also, that persons who stand in place of a parent, and persons who have demonstrated to a child a settled intention to treat the child as their own, also may have an obligation to pay child support. The obligation to pay child support is very significant, because once it is legally established, it can last many years and is enforceable by the Province of Ontario as against the payor of child support. If a payor who is obligated to make child support payments fails to do so, the Family Responsibility Office F.R.O in Ontario, takes various and sometimes extreme steps against him or her to enforce the obligation to make child support payments.

If you are paying money to, or receive money from, your child's other parent as financial support of your child, those payments are known as "child support".

The idea behind our child support laws, is that children should continue to benefit from the financial means of both parents just as they would if the parents were still together. If parents are divorced or separated, they are both responsible for supporting their children financially. Children are entitled to support by law, if they are under the age of majority and still dependent on the parents. Even where a child is over the age of majority, he or she may still be entitled to support if he or she cannot become independent because of an illness, disability or "other cause". Courts can order parents to support older children going to university or college. This level of education may sometimes be considered a valid "other cause".

If you and the child's other parent set up your own support agreement, you have some flexibility regarding the amount that will be paid, so long as you can both agree and the amount is fair. Some parents use child support guidelines to assist them to come to an agreement. If a judge is asked to decide, the judge must usually set child support amounts having regard to rules set out in the child support guidelines.

In Canada, there are provincial/territorial guidelines as well as the Federal Child Support Guidelines. The guidelines that are to be employed, either by a judge or by parents, will depend on the situation.

The Federal Child Support Guidelines would normally be used if parents were legally married and then subsequently obtained a divorce. Provincial child support gudelines would be used if you and the other parent were never married to each other or if the parents were married, but decided to merely separate, as opposed to proceeding to obtaining a divorce.

The Federal Child Support Guidelines (Federal Guidelines) are regulations made under the Divorce Act. They consist of rules to show the amount of child support, that parents must pay when they divorce. The idea of the Federal Guidelines is to set a fair standard of support for children. The Federal Guidelines have often reduced conflict and tension between parents because they make child support calculations fair, objective and predictable. They may also assist the parents come to an agreement about support by themselves, and in this way avoid having to go to court. Going to court can be a very stressful, expensive and time consuming experience, however, in some cases it is unavoidable.

CHILD CUSTODY AND ACCESS

Child custody law in Ontario makes the custodial parent responsible for the care, control and well-being of a child on a daily basis and for making major and final decisions on behalf of the child. The parent who does not have custody, is usually granted visitation rights or access, to the child, and is entitled to have input into important decisions affecting the educational, physical, religious, social, and moral development of the child.

The non-custodial parent is also entitled to ongoing contact with the child, including periodic overnight visits, weekend, holiday, birthday and vacation access, and is also entitled to be kept fully informed by doctors, dentists, and schools as to medical and educational issues relating to the child. There are various child custody arrangements possible between parties, which can be ordered by a Court or agreed upon by the parties.

These can include sole custody, joint custody, split custody and shared custody, among others. Joint custody or what is known as shared parenting, grants each parent the right of consultation and input into major child-related decisions. A child's relationship with his or her parent is the right of the child, and not of the parent.

The fundamental principle used in determining who shall have custody of the child, is known as the doctrine of the "child's best interests". As well, if the wishes of the child can be ascertained, that evidence carries a great deal of weight in determining which parent shall have custody.

In cases where there is much dispute as to the issue of who shall have custody of the children, family law custody assessments are frequently conducted by psychologists, psychiatrists or social workers, who are hired by either or both of the parties to provide recommendations to the Court as to the best interests of the children, and who should have custody.

In situations where parents cannot agree on custody and access issues, they have to go to court and ask a judge to decide what custody and access arrangement will be in effect. When a judge makes decisions about custody and access, he or she is normally guided by the principle that it is better for a child to have a continuing relationship with both parents.

SPOUSAL SUPPORT

There are various circumstances, depending on the facts of each case, in which a Court may order spousal support to be paid, following separation, by one spouse to the other. The three variables in spousal support determinations are entitlement to spousal support, the quantum of the spousal support and duration of spousal support.

In general, every spouse is obligated to provide support for himself or herself as well as for the other spouse, according to their respective needs, and to the extent that they are capable of doing so. When a marriage has broken down, either spouse may apply for an order for support.

There are several factors, which help in determining whether a spouse is entitled to support. These include the length of the marriage, any negative financial consequences and hardship suffered by a spouse as a result of the marriage or its breakdown, and the likelihood that support payments will lead to financial self-sufficiency of the spouses.

In order to make spousal support more predictable, Spousal Support Advisory Guidelines have been drafted by the Federal Government and can be used by the courts. These guidelines, however, are not legislated into law, are intended to operate on an advisory basis only, and are not mandatory. They contain two different schemes, one for families with dependent children, and another one for families without dependent children.

Spousal support payments which are made pursuant to a Court Order or are contained in a Separation Agreement, in contrast to child support payments, are to be included in the taxable income of the recipient and are deductible from the taxable income of the payor spouse. Spousal support is paid monthly, but in some cases it may also be paid in a lump sum. However, if the support is paid in a lump sum, it is not taxable for the recipient and the payor cannot claim it as a tax deduction.

Spousal support issues after marriage-breakdown are governed by the Divorce Act, while spouses who were not married, but rather have satisfied the legal test of having cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child, have recourse to the Family Law Act in order to obtain spousal support.

A "same-sex partner" can also apply for spousal support under the Family Law Act. Same sex couples who marry are also covered by the definition of "spouse" and are entitled to apply for spousal support if their marriage breaks down. In cases of marriage-breakdown, an application for support under the provisions of the Family Law Act must be made before the parties are divorced. If no claim for support was made in the divorce proceeding and a divorce judgment has been granted, the support claim must be made as a corollary relief claim under the Divorce Act and not the Family Law Act.

Instead of having to go to Court, spousal support can instead, sometimes be negotiated and agreed to by the spouses and reflected in the terms of a separation agreement. This can be done also with child support, custody and access, property division, and other matters. As well, it is sometimes possible to obtain spousal support retroactively, that is, for a period of time before the application for support was made.

A government office known as the Family Responsibility Office (FRO) is in the business of enforcing support payments. When a Judge makes an order for support, the court automatically files the support order with the FRO. A Separation Agreement can also be filed with the FRO, if a party has filed it with the court. The FRO directs the payor spouse to make all support payments to the FRO. All payments made to the FRO are then sent to the recipient spouse.

RESTRAINING ORDERS

Both women and men can be victims of domestic violence, however, the overwhelming majority of reported violence involves men abusing women. Violence can have a lasting harmful impact on victims, including children. The perpetrator of violence can be arrested, charged, and put in jail. Aside from physical violence, there can occur psychological, emotional and financial abuse as well. Domestic violence can also take the form of sexual force, actual or threatened, by your partner or ex-partner.

If you are concerned that your spouse or your former spouse will attack you or abuse you, you can ask a court for a Restraining Order. Such an Order can be made in family court by a Judge, in order to protect you and any children in your care from violence. The Restraining Order can be a general one, in that it orders the other party to stay away from you, or it can specifically set out the places where the other party cannot go, such as near your home, work or school. If the party against whom a Restraining Order has been made breaches it, the police can arrest him or her. A restraining order can be made in Family Court against a former married spouse or against a former common law partner. This includes a same-sex ex-partner.

In addition, our laws require a family court to consider any violence against a spouse or parent of a child when the court is making an order for custody of, or access to a child. If a child is a victim of abuse by one of the parents, the court can deny that parent access.

PROPERTY DIVISION

The intention of the Family Law Act is to ensure that the value of all assets acquired by either or both parties by virtue of the marriage partnership will be shared equally upon the marriage breakdown. The value of nearly all property accumulated during the marriage as opposed to the property itself, is to be shared equally between the spouses on marriage breakdown, through a process known as "equalization". This occurs in every case, unless the spouses have agreed otherwise in a domestic agreement, or the fact situation falls within one of the exceptions stipulated in the Law.

The first step in the equalization process is to calculate each spouse's "net family property" . The valuation date for determining the value of each spouse's net family property, is the earliest of several events, but normally is the date the parties separated, with no reasonable prospect of a resumption of their cohabitation.

The second step, is to "equalize" the spouses' net family properties, which requires a payment equal to one-half of the difference between the value of their net family properties be made. In many cases consequently, separated spouses tend to minimize their own net family property, and maximize the net family property of their spouse. The exception provided by the Law to the general rule that parties will "equalize" the value of their properties, applies where such equalization would produce unconscionable results.

In such a case, the court has the discretion to vary the equalization payment, ordering an amount payable that is greater or less than one-half of the difference between the parties' net family properties. A spouse, former spouse or deceased spouse's personal representative may apply to the court for a determination of any matter respecting the spouses' entitlement to equalization of property.

"Spouse" for the purposes of the Family Law Act's property settlement provisions, means either a man and woman who are married to each other, and recent changes in the Law establish that same-sex couples may apply for division of property as well. There is more than one definition of "spouse" under the Family Law Act, and the second definition is found under the sections which govern support obligations. The definition of spouse under those sections is wider than one under the property division sections of the Act, and it includes persons living "common-law" for a three year continuous period.

Common law spouse may also indirectly apply for a division of certain specific property, as an incident to a claim for support. Another way for a common-law spouse to assert a claim to property, is to claim that the other spouse is holding certain property in trust for him or her.

These principles of law are known as "constructive trusts" and "resulting trusts", and they may be used in order to obtain a share of property held in the other common-law spouse's name. An application for a division of Matrimonial Property may be brought when a specific event occurs, including when a divorce is granted, when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, when a spouse dies, or when the spouses are cohabiting and there is a serious danger that one spouse may improvidently deplete his or her net family property.

At the same time, an application cannot be brought after the earliest of, two years after the day the marriage is terminated by divorce or judgment of nullity, six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation, and six months after the first spouse's death.

Certain Matrimonial Property is excluded from the equalization calculations, including property that was a gift or inheritance from another person to one of the spouses, damages received from personal injury settlements by a spouse, and any property that the parties agreed by a marriage contract or pre-nuptial agreement, would be excluded from the spouse's net family property.

The Divorce Act does not deal with dividing your property or debts upon marriage breakdown. As noted, it is the Family Law Act which deals with this issue. "Property" can include things like the home you and your spouse lived in, its contents, any other real estate, a cottage, employment pensions, cars, the Canada Pension Plan, RRSP's, GIC'S, investment certificates, monies deposited in bank accounts, cash and many other things. Debts can include mortgages, amounts owed on credit cards, and other loans. The Law sees marriage as an equal partnership, and the general rule is that the value of any property that you acquired during your marriage and that you still have when you separate must be divided equally between the partners. Property that one partner brought into the marriage is theirs to keep when the marriage ends. Any increase in the value of this property during the marriage must be shared equally.

There are some exceptions to these general rules, which allow one partner to keep the value of some property for themselves, such as gifts received during the marriage from someone other than their spouse, property that the partner inherited during marriage, certain insurance policy payouts, and proceeds of monies received as damages resulting from a personal injury.

The Matrimonial Home is another exception to the general rule, and will be dealt with in more detail in another section below. Briefly, the law holds, that upon the end of the marriage, the full value of the Matrimonial Home must be shared equally, even if one of the parties owned the home prior to the marriage.

In some cases, the court will make an unequal division of Matrimonial Property, specifically, where to do so would be unconscionable and result in extreme unfairness to one of the parties. As well, the parties may decide to divide their property in any manner they wish, by negotiating and entering into a Separation Agreement.

THE MATRIMONIAL HOME

A Matrimonial Home is defined by Law as any property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence.

Spouses can have more than one matrimonial home. The Law makes special provisions for the treatment of the Matrimonial Home, but these only apply to spouses who are married, and not to common-law spouses. It is only necessary that a spouse have an interest, and not necessarily ownership in a property, in order to have that property qualify as a Matrimonial Home.

Therefore a leased apartment may qualify as a Matrimonial Home. Regardless of which of the spouses owns the Matrimonial Home, both spouses have an equal right to its possession. Furthermore, any paragraph in a marriage contract that limits the right to possession of the Matrimonial Home by a spouse, is unenforceable.

When only one of the spouses has an interest in the matrimonial home, the other spouse's right of possession is personal as against the first spouse. This right terminates upon them ceasing to be spouses, except if a separation agreement or court order provides otherwise. The right to equal possession of the Matrimonial Home is not absolute, and in some situations, the court can order that one spouse be given exclusive possession of the home or a part of it for such period as the Court directs.

This can occur where spouses are unable to continue living together in the home and a spouse wishing to remain in the home applies for an order that the other spouse leave. In these applications, the Court will consider several factors, including the best interests of the children, the financial situation of both spouses, any written agreement between the spouses, the availability of other accommodation and any violence by one spouse against the other or the children.

Exclusive possession orders are only available to married spouses, and not to divorced former spouses. As can be seen, the Matrimonial Home is afforded special treatment, in that it is largely irrelevant if only one spouse is on the registered title. If that is the situation, then the spouse whose name is on title is legally entitled to keep the ownership of the home after the divorce, but the other spouse is legally entitled to be paid one-half of the value of the home, valued as on the date of separation. If this situation exists in a common-law relationship, where the couple are not married, the non-owner spouse can only make a claim to a part of the value of the home pursuant to the doctrine of constructive trust.

DEFENCE LAWYER FOR PARENTS AGAINST CHILDREN'S AID

The Child and Family Services Act is the Statutory Authority in Ontario which deals with child protection proceedings. It allows the Government or its agency, the Children's Aid Society, to intervene in cases where it perceives that a child's parents are unable or unwilling to provide a minimum standard of care, where the physical well-being of a child is endangered, and where the emotional well- being of a child is in jeopardy.

Child protection proceedings differ from custody disputes between parents, in that the State is involved in the former, in an attempt to ensure the safety and the best interests of children. The process can be seen as an invasion on the rights of the parents and the family by the Government, which justifies its intervention on the basis of the protection of the best interests of the child.

It can also be viewed by the parents as a breaching of their rights to bring up a child in a traditional or customary manner. There is, at the same time, no doubt, that where there is real danger to the safety of the child, that the State has a duty to intervene to protect the child. The child, of course, can be involved in the process, and take part in the proceedings more fully, especially where his or her wishes can be ascertained.

A child protection proceeding is not a criminal proceeding but is a civil hearing. Aside from the Children's Aid Society which represents the State, the other usual parties in a child protection proceeding are the child's parents, and the child, if he or she is at least 12 years of age, unless the court is satisfied that being present at the hearing would cause the child emotional harm. A child under the age of 12 years is not entitled to be present at the hearing, unless the court is satisfied that he or she will not suffer emotional harm by being present at the hearing and that the child is able to understand the proceedings.

A child of any age has a right to retain a lawyer, and that lawyer is entitled to participate fully in the proceeding. The Act also enables the Court hearing the matter, to appoint a lawyer for the child from the Office of the Children's Lawyer.

If parents get contacted by a Children's Aid Society, they should retain a lawyer almost immediately, and certainly should try to say little to CAS. Unless there is obvious imminent danger to a child, CAS must get parents' permission to enter the home.

It is important not to sign any papers presented to parents by the CAS, until the parents receive legal advice from their lawyer. In some cases, the CAS can take a child away from the parents. If that happens, you should immediately retain a lawyer to help get your child back. The CAS must take the case to family court shortly after they take the child away, and parents must be prepared to present their case on Court. I will fight for the rights of parents in order to ensure that a miscarrige of justice has not occurred.

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NOTE: If you require legal assistance with any Family Law issue, contact Toronto Divorce Lawyer, George J. Kubes LL.,B. immediately at (416) 926-9298 or (416) 464-5139 for a no-obligation consultation.

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The information on this website is intended for general information purposes only and is not intended to be a substitute for legal advice, nor is it a substitute for legal advice and should not be relied on as such. You are expressly advised and cautioned to consult with a qualified lawyer for legal advice. While George J. Kubes, LL.,B. and Kubes Law Firm have made all reasonable efforts to ensure that the information presented on this website is correct and up-to-date, there is no warranty or guarantee as to its accuracy.