You don’t have to get a divorce to divide up your property. You can agree with your spouse to the terms of your separation, and specify them in a legally enforceable document. If you think a separation agreement is possible, but you can’t agree on everything, involving legal counsel may assist in the negotiation process. Both parties to the agreement should have independent legal advice, from separate lawyers, before signing it. This is important for three reasons:
- The purchase price
- The assets that are to be purchased and the values allocated to certain classes of assets
- A mechanism for adjusting the purchase price once final financial statements become available
APPLICATIONS TO THE COURT
It is important to remember that you always have two options: to settle issues directly with your spouse by entering into an agreement, or to apply to the court to have your disputes decided by a judge. The advantages of settling matters by agreement are that it is generally much less costly, and you retain control over the decision making process. Particularly with regard to children, most parents would prefer to compromise by agreement rather than run the risk that a court will impose a decision that they may not like and by which they will be forced to abide. However, failing agreement, either party may commence an application to the Ontario Superior Court of Justice.
There are many options to explore in determining custody of children, including joint custody and various means of sharing parenting after separation. A custody application takes time. In any litigation there are many steps and stages before a trial of the action when all matters are ultimately decided by the court. With regard to children, sometimes the court will seek the involvement of the Office of the Children’s Lawyer to appoint independent counsel to advocate in the best interests of the children. In other cases, the parties agree to a family court assessment, or one is ordered by the court, whereby the parents and the child are interviewed by a psychologist or social worker or other professionals, who then makes recommendations to the court. In the meantime, courts are reluctant to disturb the status quo. This means that wherever the children have been residing since the separation of the parents, they will probably stay there until the judge renders a final decision, subject to the court imposing a schedule for sharing time with the children between the parents. For this reason, it is important to get legal advice before you separate, so you will know the potential ramifications of your actions before you proceed.
Access is the legal right of the child. It is very rare that a court will deny access to a parent, unless there is evidence that access will be harmful to the child. If you can’t agree on access, involving legal counsel in negotiations may be useful. Your lawyer will know the circumstances in which access may be limited or denied, and will be able to give you an idea of the range and duration of access orders typically granted by the courts. With this information, you may be able to agree to terms mutually acceptable to both parties rather than run the risk of a court imposing terms you find unsatisfactory.
In some cases, parents simply can’t communicate. In the face of hostility between parents, sometimes it is preferable to avoid contact between the spouses. Many communities have supervised access facilities, where parents can safely exchange children in a child-friendly environment without the necessity of contact between the parents. Supervised access facilities also provide an environment for parents to visit with children under independent supervision, in rare circumstances where supervision has been ordered by the court.
When a couple splits up, the husband and wife — or the unmarried spouses — are expected to pay for their own needs as much as possible. Both parents must contribute to take care of their children. If you can’t agree on support issues, a judge will decide how much you or your spouse will pay. The judge has to review all the information pertaining to the needs and earnings of each spouse, as well as to the circumstances of each of the parties during the relationship and since the separation, so a final decision may take time. In the meantime, you can ask for a temporary order for support. If you receive notice that you are being taken to court to settle a support issue, you should contact a lawyer as soon as possible, as once a court orders an amount of support to be paid, the order is difficult to change.
Your lawyer can advise you with respect to an application of the federal Child Support Guidelines. The Guidelines have been in place since May 1997 to bring certainty and uniformity to orders for child support, and to provide tables of support payments which depend on the gross annual income of the payor spouse. However, the Guidelines legislation is more complicated than simply applying a table, and there are many factors that can affect the quantum of support to be paid, including the residency of the children, expenses for children that can be claimed as add-ons in addition to the basic monthly quantum of support, the age of the children, and considerations of undue hardship.
For spousal support there is no guideline to prescribe the quantum to be paid, and your lawyer can review with you the many circumstances and factors a court will consider in determining entitlement and quantum of spousal support.
While support payments that are agreed between the spouses can be paid directly between the parties, when a court orders support, the support is enforced by the Family Responsibility Office. This is an agency charged with the responsibility of collecting support payments from payor spouses and delivering the support payments to the recipient spouses. The Family Responsibility Office has various means available to it to ensure payment, including garnishment of wages, seizure of assets, G.S.T. rebates and tax refunds, and suspension of driver’s licenses. In the event of default, the office can further seek a court order for the arrest and detention of a support payor.
If you are paying support and the Family Responsibility Office is unable to collect payments, the amount of support you are required to pay will build in arrears. Ultimately, the Family Responsibility Office will resort to all methods available to it to collect those arrears, and you will be charged additional fees for the efforts of the Family Responsibility Office in enforcing the arrears. If you become unable to pay support that is provided for in an agreement or court order, it may be possible to have the order varied. It is important to see a lawyer immediately in the event that you are unable to meet your support obligations to determine what remedy may be available to you. Otherwise, you will be subject to additional costs and litigation when the Family Responsibility Office turns its attention to collecting the arrears that accrue over time.
COMMON LAW SPOUSES
The definition of “common law spouse” depends on the circumstances, as there are many laws that provide rights and entitlements to unmarried spouses who cohabit. A statutory definition usually prescribes a minimum period of time for cohabitation for persons to be considered “spouses.” The same laws of custody and access apply to unmarried couples with children. Common law spouses also have standing to apply for support under the Family Law Act. There are, however, differences in the law regarding property as applies to common law partners. A lawyer will be able to advise you regarding support claims and any potential claims you may have to an interest in the property of your common law partner.
More and more couples who are separating are choosing to enter into mediation with their spouse. A mediator is a person who facilitates discussion between the spouses to determine whether the parties can reach agreement without resorting to litigation. The mediator attempts to help couples reach an agreement that works for both of them, to obtain a “win-win” result, rather than resort to the adversarial process of litigation. A mediator has no authority to impose a decision on you if your fail to reach agreement. There are many family law mediators. Some have expertise in dealing with child custody and parenting issues, others are skilled in mediating property or support disputes. If you are contemplating entering into mediation, it is important to obtain independent legal advice. In the course of mediation you may compromise in the interests of settlement, but it is important to understand your rights and obligations at law before you enter an agreement that will affect you and your family for the rest of your lives.
Many courts have established a Family Law Information Centre, which is generally staffed by a clerk or mediator or advice lawyer who can provide information about the legal process, as well as provide you with self help information and booklets about family court and mediation options. Visit your local Family Court location or see a local lawyer to get informed: the more you know, the more you can alleviate the emotional stress of separation for yourself and your children.
The goal of collaborative law is to arrive at a negotiated resolution that satisfies the interests of both spouses and the needs of children, while preserving or building the ability of the parties to communicate and cooperate as needed, and avoid much of the financial and emotional cost of court proceedings or prolonged adversarial negotiations. In contracting to formalize separation by way of the collaborative process, the parties and counsel contract to exclude litigation as an option and commit to arriving at a negotiated settlement. This method directly involves each of the separating parties and both of their respective lawyers in a team approach with a view to negotiating settlement together through a series of cooperative sessions. The collaborative law process involves both parenting and financial issues. By understanding each party’s concerns, a cooperative approach to problem solving has both parties working together to arrive at a framework for settlement with the assistance of counsel. Parties can resolve the details of separation while reducing and resolving conflict, reducing costs, and discover a means for resolution that provides the foundation for ongoing co-parenting. It will be important to both parties to address the impact of support and property arrangements as they relate to the needs of children, and the long-term financial ramifications for each party. Additional family law and financial professionals can be introduced as needed to the collaborative team.