Ultimately to negotiate resolution the parties must be willing to negotiate. In some cases legal issues may be complex, or the law unsettled, and despite the parties’ reasonable efforts judicial guidance may be required to aid in the resolution process. In other cases parties simply disagree, or one party may not negotiate reasonably, or may not be willing to negotiate at all. In all matters where there is dispute parties have recourse to the Court to seek judicial determination of the issues.  Applications to the Court involve time and care and substantial document preparation, and at every stage are subject to formal rules for family law litigants, with significant cost and other consequences for failure to comply with the rules and timelines imposed by family law statutes and rules of Court.  Prudent litigants obtain legal advice and representation at the outset and throughout the litigation process.  It is important to remember that family law cases are case managed by a case management judge who will provide input and recommendations at various stages with a view to helping the parties reach compromise and resolution, and the judge will be interested in what steps the parties have taken to reach settlement before resorting to the Courts.  Consideration of formal offers to settle will be relevant to the Court in determining the payment of court costs.  It is prudent and cost efficient to carefully review settlement negotiations and other pathways for resolution with your lawyer before and during the litigation process, and to appropriately document these efforts.

There are many options to explore in determining custody of children, including joint custody and various means of sharing parenting after separation.  Parents may work cooperatively through negotiation, mediation or other collaborative process to retain their parenting authority to make important decisions respecting their children, and to creatively structure co-parenting.  Children grow and change, so arriving at a cooperative means of revisiting and revising your parenting agreement to change with them will serve you with the most time and cost efficient means of resolving parenting issues that will continue to arise as your children’s ages and needs change.

If rights and obligations respecting children are at issue in a family law court proceeding, the Court has additional tools at its disposal to help the Court best protect the interests of children, consider the wishes of the children, and ultimately determine what is in the children’s best interests.  In some cases the Court will seek the Office of the Children’s Lawyer to appoint independent counsel to advocate on behalf of the child, or to appoint a social worker to investigate the family’s circumstances and to make recommendations to the Court.   In other cases the Court may order an assessment of parenting capacity, wherein the family participates in interviews and assessments by psychological and social work and other professionals, who then make recommendations to the Court with respect to the children’s needs and the parties respective abilities to meet those needs.   A custody application takes time, in any litigation there are many steps and stages as you court case progresses:  it is important to get legal advice to ensure you are prepared for the potential claims that may be made against you and the processes which may be imposed upon you to aid in determination of the claims before the Court and be aware of all the potential ramifications of your actions before you proceed.

Ultimately the culmination of a family law application is a trial of the issues where the Court considers the claims of the litigants, hears the sworn testimony of all the witnesses, considers all of the evidence, makes findings of fact and determines the best interests of the children and decides the case.  However, the vast majority of court cases are resolved by resolution at some stage during the litigation, whether it’s early in the case management process on one of the many return dates before the Court, or on the eve of trial.  A prudent litigant obtains legal advice before commencing a court case and as early as possible to investigate resolution:  the least time and expense and stress expended on litigation the better for all involved, particularly for children.

Access is the legal right of the child.  The child has a right to know and obtain the benefits of a relationship with both parents. There is no “normal” or ordinary access schedule, access refers to the right to have parenting time with the child and to be provided with information respecting the child, including directly from  health and educational institutions. 

 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 to explore the circumstances in which access may be limited or denied, to provide advice with respect to the range and duration of access orders often granted in precedent case law, and to creatively consider terms and conditions for access which may reassure both parents as to how positive access visits may occur.  With this information parents may be able to agree to mutually acceptable access arrangements rather than run the risk of a Court imposing terms one or both parents find unsatisfactory.

In some cases parents simply cannot communicate.  In the face of hostility between parents, sometimes it is preferable to avoid contact between the spouses.  Lawyers can assist with crafting access arrangements that avoid direct contact between the parents when exchanging the children, and setting terms for appropriate communication about parenting issues.  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 to support themselves to the extent that they are able.  Both parents must contribute to take care of their children.  If spouses cannot agree on support issues, a Court can decide how much either or both will pay.  The judge has to review all the information pertaining to the needs and earnings of each spouse, as well as to the circumstance of each of the parties during the relationship and since the separation.  In the meantime, a party may ask for a temporary order for support.  If you are served with notice of an application to the Court to settle an issue for support, or other claims, 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 the workings of the federal Child Support Guidelines.  The Guidelines were legislated in 1997 to bring certainly and uniformity to orders for child support, and provide tables of support payments which depend on the gross annual income of the payer spouse.  However the Guidelines legislation is more complicated than simply applying a table, there is much more to the legislation than the Tables, which is the part most people are familiar with.  There are many factors that can affect the quantum of support to be  paid, how to ascertain the payer’s income for support purposes and correctly apply the Table,  or whether support is paid at all.  Some important criteria will include the residency of children, the ages and needs of the children, and considerations of undue hardship.  In addition to the Table amounts of child support, there may be special expenses for children that can be claimed in addition to the monthly quantum of child support. 

For spousal support there are no Tables that determine spousal support payable, however the Spousal Support Advisory Guidelines provide formulas for determining range and duration of spousal support which would be considered by a Court, and can be similarly used by parties in negotiating appropriate spousal support.  Similarly, there will be many complicated factors addressing entitlement to spousal support, as well determining amount, that will impact spousal support calculations:  you should review with your lawyer the many circumstances and factors that will impact spousal support considerations.  An obvious but often missed consideration  is when and how spousal support will end, and consideration of retirement, or other changes in spouses financial positions that may occur over time.

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.  Similarly even agreements for support that are paid pursuant to a written agreement, and not a court order, can be filed for enforcement by the Family Responsibility Office.  This is an agency charged with the responsibility of collecting support payments from payer spouses and delivering the support payments to the recipient spouses.  The Family Responsibility Office has various means available to the agency to enforce payment, including garnishment of wages, seizure of assets and tax refunds, suspension of passports,  and suspension of driver’s licenses.  In the event of default, the Family Responsibility Office can seek an order for the arrest and detention of a support payer. 

If the Family Responsibility Office is unable to collect payments from a payer, the amount of support the payer owes will build in arrears.  Ultimately the Family Responsibility Office will resort to all methods available to it to collect those arrears, and the payer will be charged additional fees for the efforts of the Family Responsibility Office to collect.  If the payer become unable to pay support that is provided for in an agreement or court order, it may be possible to have the order varied.  This involves an application to the Court:  the Family Responsibility Office cannot change your support order or agreement.  As a support payer, if you are unable to meet your support obligations it is important to see a lawyer immediately to determine what remedy may be available to you.  Otherwise you will be subject to additional costs and penalties when the Family Responsibility Office turns its attention to collecting the arrears. Some of the enforcement mechanisms available to the Family Responsibility Office involve short time lines and limited notice to the payer: this is particularly true of suspension of driver’s licenses, and imposition of a very limited window in which the payer spouse can apply to the Court to seek a refraining order to prevent the suspension of the driver’s licence:  if the permitted time period is not complied with, applying to the Court will be too late to prevent or reinstate the driver’s license.  In support enforcement matters,  it cannot be stressed enough that the time to seek legal advice is immediately. 

Many people are choosing to live together as spouses but not get married.  In some respects the law has evolved to address the circumstances of common law spouses.  Legal rights and obligations do arise out of living together, however substantial rights and entitlements of married spouses do not in fact extend to common law spouses.  Unmarried spouses need to be aware of their legal standing in order to adequately protect themselves and each other. 

A significant pervading myth is that living together for a certain number of years is the same as marriage.  It is not.  For one thing, there is not set number of years cohabiting that defines a common law spouse.  A statutory definition usually prescribes a minimum period of time for cohabitation for persons to be considered  “spouses”, but these definitions are different depending on the right, or obligation, being addressed by the particular law.   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, however the period of cohabitation will be relevant to entitlement. For other entitlements, such as claiming division of Canada Pension Plan credits, or a spouse’s standing to participate in consent to treatment issues, the minimum period of cohabitation is different.  The time period required to be considered a  “spouse” will differ depending on the legislation that prescribes the right in question. 

Living together is not the same as being married.  Common law spouses do not have the statutory rights to share in the value of one another’s property.  Similarly common law spouses do not have automatic entitlement to share in each other’s estates.  It is prudent for everyone to have a Will, but unmarried spouses in particular need Wills because there is no built in protection for them in the law. 

Married spouses have the right, prescribed by law, to share in the value of assets and losses accrued during the marriage.  The spouse with the higher net worth as at the valuation date will owe the spouse with the lower net worth one half the difference between them, which is called an equalization payment. Calculation of equalization is complex and subject to numerous exclusions and deductions, and will also be impacted by determination of the value of the assets themselves, so it is important to consult a lawyer and obtain full financial disclosure before settlement of married property claims.   This right to share in the accrued value during the course of the marriage is not applicable to unmarried spouses. 

What common law spouses do have are potential trust claims.  A trust claim is based on the principal of unjust enrichment.  The principle is that if one spouse has property, and the other spouse has made contributions to the acquisition or maintenance of that property, that the owner spouse may be unjustly enriched by those contributions. A trust claim can be based on financial contributions to property, but may also be based on non-monetary contributions that take the form of housekeeping or child care contributions to the relationship.  If a court determines that the spouse having title to an asset would be unjustly enriched by the other spouse’s contributions, the court may hold that the titled spouse holds part of his or her asset in trust for the other.  A trust claim can be made against any asset. So although a house is the easiest and most common example, a trust claim could be brought against any other asset, like investments, or an employer pension. 

Common law spouses may also seek for a Court to consider the sharing the value of assets accrued during the relationship similarly to the statutory scheme for property rights applicable to married spouses, if the cohabiting spouse can prove a joint family venture existed in the relationship partnership.  If a Court is satisfied assets accrued during the relationship as a product of the couple’s joint efforts, and that it would be unfair for one spouse to end up with a disproportionate share of wealth, a Court may order financial compensation from one spouse to the other, or determine appropriate sharing by way of transfer of property.  Simply cohabiting with a spouse does not constitute a joint family venture, and the Court will have to examine extensive criteria of the circumstances to determine if a joint family venture is demonstrated.   

For common law spouses seeking equitable compensation, joint family venture and the law of constructive trust will be important issues to obtain legal advice about upon separation.  For common law spouses entering into a new spousal relationship and wishing to maintain their property separately to provide for their own ultimate retirement needs, or to benefit their children of prior relationships, the issue of joint family venture and other potential trust claims are important risks to address at the beginning of the relationship, and consideration of whether a Domestic Contract would be appropriate. 

One way in which Common law spouses are similar to married spouses is that in Ontario spouses have no automatic right to deal with one another’s financial affairs in the event that a spouse suffers a mental incapacity.  Without a Power of Attorney, your spouse would not have access to your funds to care for you or him or herself.  While there are legal means to apply to the court for guardianship in order for family members to regain control of an incapable person’s property, this is an expensive and time consuming process.  If your spouse if financially dependent on you, he or she could find himself without the resources to fund a guardianship proceeding. 

Marriage Contract 

Marriage is a big step, and surprisingly bigger the second or third time around. This is because marriage changes your legal rights, and also brings with it legal obligations. For the mature groom or bride, marriage may require more planning and preparation because new legal responsibilities can present risks to financial security, or must be considered taking into account existing legal responsibilities to children of a prior relationship.  People who have already accumulated assets and have made plans for their retirement need to understand the financial duties created by marriage.  Marriage breakdown and the potential support obligations to a divorcing spouse pose a serious threat to retirement plans.   Marriage itself also has a significant impact on estate planning and balancing the needs of potential beneficiaries. 

For people who already have children the new legal obligations that come with marriage need to be addressed in the context of existing dependents.  Similarly those marrying into a preexisting family will want to understand their obligations to those children. 

The best way to smoothly bring marriage into your overall plan for financial security is with a marriage contract.  A marriage contract will be appropriate in many and varied circumstances.  The most common purpose of a marriage contract is to address property sharing:  in Ontario, married couples are entitled to share the value of property that accrues during the marriage.  A marriage contract can protect not only an existing asset from claims, but any increase in value to that assets, such as the growth on an investment, such as an employer pension or R.R.S.P., or the increase in value in a home or other property over the course of the marriage. 

The most substantial issue confronting couples who are marrying for a second time is the home.  In Ontario, upon marriage breakdown the couple shares the value of assets accrued during the marriage.  Assets that are owned by each spouse prior to marriage can be deducted, if their values as the date of marriage can still be proven.  The exception is the matrimonial home.  In Ontario, even if a spouse has owned her house free and clear for fifty years before she gets married, once she lives with her spouse in it as a matrimonial home, the value of the house becomes part of the value of accrued assets that she will share with her new spouse.   Keep in mind that a couple can  have more than one matrimonial home, so the cottage, the condo, the hunting cabin and other real properties may also be at risk. 

That is, unless there is a marriage contract.  A marriage contract permits the spouses to agree in advance as to the manner in which their assets and liabilities will be shared.  People are different and marriages are different:  it is unrealistic to expect that the legislative scheme can work best for everyone.  A marriage contract gives you the opportunity to make the rules that will be applicable to you. 

Protection of a home or other significant asset is usually the reason for a marriage contract, but the manner in which a marriage contract may be structured is not limited.  A couple who intend to purchase a home together may have a marriage contract to determine how the value of the home will be shared, and providing a buy-out option in the event of marriage breakdown rather than risking that the house will have to be sold.  Similarly if one spouse owns a home and the couple intend to live there both contributing to the expenses, they may wish to provide a formula for determining their respective interests in the home, as joint ownership may be inequitable if their contributions are unequal, or one spouse has already built up significant equity in the home. 

A marriage contract may be necessary to protect a business, or the value and growth of investments or a pension, or any other asset.  A marriage contract may also be useful for second marriages where both spouses have children from a previous relationship and wish to provide for their own children in their estate planning, rather than a new spouse  A marriage contract can protect a Will from challenge and protect beneficiaries from the expense and delay of litigation. 

Aside from simply excluding assets, marriage contracts can also address spousal support considerations,  how joint property will be shared upon separation, or what rights parties may have to share in one another’s estate upon death.  A marriage contract gives each party the security of knowing his or her rights an obligations such that problems that arise in the relationship do not get sidetracked by the uncertainty associated with financial inter-dependency.  Parties to a marriage contract no not have to wonder or worry how they will fair if the relationship ends. 

Ultimately  a marriage contract arises out of an amicable relationship:  the parties are planning to spend their lives together.  So don’t shy away from some frank discussions with your fiancé and your respective lawyers.  A marriage contract provides the opportunity to structure your rights and obligations arising out of marriage in a way that meets both your needs. 

Cohabitation Agreements 

Cohabitation Agreements for unmarried spouses are appropriate to address many issues arising on separation.  Cohabitation Agreements can address the entitlements of unmarried spouses similar to the child and spousal support obligations relevant to married spouses.  Cohabitation Agreements are also beneficial for protecting unmarried spouses in the event of a death of a spouse.  While married spouses have a right to share in the estate of the deceased partner pursuant to law even if she or he has died without a Will, a cohabiting spouse does not.  Imagine the scenario of a couple has lived together many years in the home owned by only one partner:  upon the homeowner’s death, the surviving spouse may find himself retired, elderly, grieving the terrible loss of his spouse, and now being forced to vacate his home, which will be sold by the estate.  For an elderly spouse who relies on his home and community to support the activities of daily living, this could serious impact one’s ability to maintain independent living.  A cohabitation agreement can balance couple’s intended estate planning for children of previous relationships with the needs of their spouse for security in the event of a happy union ending sadly in death, while not compromising the protections afforded in the event of relationship breakdown. 

While unmarried spouses do not have the same rights prescribed by the Family Law Act to share in the value of property accrued over the course of a marriage,  the rights of Common Law Spouses have evolved in jurisprudence to include property claims in equity as determined by Courts with respect to constructive trust, unjust enrichment and joint family venture.  These claims are not governed by statute and determined each depending on its facts, and as a result  are problematic to predict and expensive to litigate, and add considerable cost and strife to a relationship ending, or to the administration of the estate upon death. 

Protection against trust claims and joint family venture claims and support claims, and the expense associated with litigation, lies in a Cohabitation Agreement.  A Cohabitation Agreement can protect existing assets and assets accruing during the relationship from potential trust claims of a spouse.  Aside from simply precluding claims against one another, a Cohabitation Agreement can also address how joint property will be shared if the relationship ends.  Many people who live together own their home together, and would like to have a plan in place for buy-out of the other’s interest in the home if the relationship ends, rather than being forced to sell the house.  A Cohabitation Agreement can deal with a whole range of issues that present themselves during the relationship, not just when the relationship ends.   

Cohabitation Agreements can also specifically provide that they will become a Marriage Contract in the event that the couple subsequently marries. 

Smart couples, married or not, hope for the best but they plan for the worst.  A Cohabitation Agreement sets out in advance what rights and obligations spouses will have, or not have, against one another if they separate.  Protect your domestic contract by reviewing requirements for financial disclosure and independent legal advice with your lawyer. 

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, and takes into account their different interests.  While not every mediated agreement will result in the ideal “win-win” result of both parties being able to satisfy all of their respective interests, a mediate resolution often involves compromise and cooperation that produces a result satisfactory to the parties and builds in a tested process for resolution of future issues, which can be invaluable in family law cases where ongoing parenting responsibility is in play.  A mediated agreement involves direct participation and cooperation of the parties in crafting the resolution, and can build the basis for continued cooperation in the future as opposed to the more adversarial process of litigation. 

A mediator has no authority to impose a decision on a couple if the parties 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 and support disputes.  If you are contemplating entering into mediation, it is important to obtain independent legal advice, and the contract for entering into mediation will usually so direct the parties to do so.  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 into an agreement that will affect you and your family for the rest of your lives. 

There are many different avenues for mediation that can include the parties participating together, the parties participating with the mediator separately, videoconferencing, and with or without your lawyers participating in the mediation discussions.  Mediators will present options and ask questions in order to recommend the most appropriate mediation process, and your lawyer will similarly provide advice and guidance with respect to entering into a mediation contract. 

A mediation does not give you a binding agreement.   You do not sign any documents provided at the end of a mediation.  The purpose of the mediation is to give you a structure of terms you and your spouse would agree to, to then be incorporated into a formal and binding separation agreement, which should be prepared and reviewed by your lawyers, and which must be executed according to the formality required by law.   The mediation only assists with the negotiation of terms, for example custody and access, support issues, equalization of property:  it is a structured method of discussion and resolution that may assist where your efforts to negotiate directly and through counsel have not produced result, but, it does not give you a formal and binding agreement, you would still need to have your lawyers prepare a written Separation Agreement if you wish to incorporate any terms arrived at in mediation into a binding agreement. 

Many courts have established a Family Law Information Centre which is often staffed by a mediator who can provide information about the mediation process and provide self help information and booklets about family court and mediation options.  Visit your local Family Law Information Centre and consult a lawyer to get informed:  the more you know, the more you can alleviate the emotional stress of separation for yourself and your children.