Rinaldi Silva LLP

Family Law 101

Family Law is a broad term which covers many legal issues, including but not limited to separation, divorce, Domestic Contracts, decision-making responsibility and parenting time of children, child support, spousal support, equalization of Net Family Properties.

Separation

In some cases, you may be able to resolve your family law matter outside of the Court process by entering into a Separation Agreement.  The Separation Agreement will set out negotiated terms which both parties agree to abide by.  Issues such as division of property, debts, assets, decision-making responsibilities and parenting time of children, child support, spousal support and any other issues which may be unique to your situation can be covered by a Separation Agreement.

Divorce

With respect to obtaining a divorce, you will need to have the other issues in your matter resolved (by way of Separation Agreement or Court Order) prior to obtaining a Divorce Order, unless otherwise permitted by the Court.  Once the other issues are resolved, the divorce may proceed, either by way of Application if you have not already made a claim for divorce in the Superior Court of Justice or by Affidavit of Divorce if you have already made a claim for divorce in the Superior Court of Justice.  Once a Divorce Order is considered effective (30 days after the signing of the Divorce Order), you will wish to obtain a Certificate of Divorce.  The Certificate of Divorce is the document required in the event you with to apply for a new Marriage Certificate.

Domestic Contracts

A Domestic Contract is a written document in which both parties negotiate and agree to terms to abide by.  A Domestic Contract may be a Cohabitation Agreement, Marriage Contract, Parenting Agreement or Separation Agreement.  You will be required to sign the document before a witness and, ideally, each party would obtain Independent Legal Advice prior to signing the Domestic Contract.

Decision-making Responsibility & Parenting Time

What used to be termed as “custody” and “access” is now referred to as “decision-making responsibility” and “parenting time”.  Decision-making responsibility and/or parenting time may be joint or sole.  Decision-making responsibility provides you with the authority to make decisions for the child or children with respect to issues such as education, healthcare, religion or other significant matters.  Parenting time refers to the time you and your child or children spend in your care, regardless if the child is physically with you during that time (for example, if the child is in school or daycare).  Only parents may make a claim for parenting time.  Non-parents would need to make a claim for a Contact Order.

Child Support

Child support is a fairly straightforward issue.  Child support payable is determined based on where the child or children primarily reside and the payor’s income.  Child support is considered the right of the child and the is parent making a claim on behalf of the child.  You may refer to the Child Support Guidelines to determine the child support payable.

Offset principal child support may be utilized in the event that both parents have equal time-sharing, but one parent has a significantly higher income than the other.  The purpose of this is to ensure the child lives a similar lifestyle as to the lifestyle he/she/they would have had the parents not separated. 

No child support may be appropriate in the event both parents have equal time sharing and their incomes are comparable.

Section 7 expenses (special/extraordinary) are expenses incurred on behalf of the child which are not covered by child support.  This would include, but is not limited to, childcare, extracurricular activities, medical expenses not otherwise covered by health insurance and/or postsecondary expenses.  The amount payable by each parent is typically shared on a proportionate shared basis.  For example, if both parents have a comparable income the expenses may be split 50/50 or if one parent earns $65,000.00 and the other parent earns $39,00.00, Parent 1 would pay 62.5% of the expense and Parent 2 would contribute 37.5% of the expense (be sure to include all income sources, including Child Tax Benefit, when determining Section 7 expense contributions).

Spousal Support

Spousal support is money paid by one spouse to the other after a separation.  Many factors may affect the entitlement of spousal support, including but not limited to, the financial means of each party, the length of the marriage and the roles of each party in the marriage and the effect thereof post separation.  There is an obligation for one to become self-supporting and, it is for that reason that spousal support may be time-limited or subject to review.  In special circumstances spousal support may be indefinite.  Please note that child support is always given priority when both a claim for both child and spousal support is made.

Equalization of Net Family Properties (NFP)

Essentially, equalizing NFP is a division of property, assets and debts obtains during the relationship.  A lot of factors play into an equalization of NFP, such as property/assets/debts owned prior to relationship, any/all property/assets/debts earned during the marriage and any Domestic Contracts the parties may have entered into together.  Each party will be required to complete a Financial Statement and a Net Family Property Statement in order to assist in equalizing the NFP.  Full financial disclosure is required in order to accurately determine each party’s NFP.

Common-law couples are not necessarily required to split property acquired, although you may bring a claim to do so if you contributed to the property your spouse owns, unless otherwise stated in a Domestic Contract.

Should you need to discuss any Family Law matters, kindly contact our office and we would be happy to set up an appointment to discuss them with you.

JOANNE LAGOUDIS

RINALDI SILVA LLP
Suite 301
720 Guelph Line
Burlington, Ontario
L6J 1J1
T: 289-635-1522
F: 289-635-1586

This article is not legal advice. It is a general guide to the subject matter for your information. Please contact our office and one of our experienced lawyers can assist you with your legal needs.

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