Family Law Areas

Here are the most common areas of family law and a brief statement about each.

1. Divorce

Years ago divorces were much more difficult to obtain. That changed in the late 1980s and since that time divorces have become usually the simplest of all the issues to be dealt with. If you separate on a Wednesday, you could commence the divorce proceedings on the Thursday, although you could not complete the divorce until one year has passed. I would not recommend, however, doing that because it would likely end any chance of reconciliation. Also many people prefer to deal with the other often more difficult matrimonial issues first and apply for a divorce later.

2. Child Support

Since 1997, child support has been easier to deal with thanks to the Child Support Guidelines. If you are the parent who will be paying child support, generally your income will determine the amount of child support you pay, especially if your children are under 18 years of age. There are other expenses incurred in raising children that are called special and extraordinary expenses. Sometimes, how much, if any amount, the paying parent is to contribute to those expenses can be a little more difficult to determine.

3. Spousal Support

There are also Spousal Support Advisory Guidelines (SSAG) and these have been very helpful in simplifying the calculation of spousal support. In many ways child support is simpler in that children under 18 living at home are always considered to be dependants and child support is always payable. With spousal support it is quite different. The first question is not how much spousal support should paid but whether it should be paid at all.

4. The Equalization of Net Family Property Values

The law in Ontario is that married people who separate should share equally in the increase in their combined net worth in dollars and cents over the years that they were married and living together. Once there has been a calculation of each party's net property worth at the time of marriage and the date of separation, then the equalization payment can be calculated. That payment, the equalization payment, is the amount one spouse would pay to the other so that the increase in their combined net worth is shared equally.

That calculation is not always simple. This is an area of law where full and complete disclosure is absolutely essential. It often means a bit of homework on the part of the client, sometimes more than a bit, but without proper disclosure, the case cannot be properly negotiated and settled.

It is important to be aware that in Ontario, the equalization of property values applies only to people who are legally married to one another. That has changed in several provinces and is almost certain to change sometime in the not too distant future in Ontario as well.

When the law changes, unmarried people who separate will likely have the same right to claim an equalization of property values as separated married people do now.

5. Separation Agreements

There are three common kinds of agreement: separation agreements, cohabitation agreements and marriage contracts. I will first deal with separation agreements, which are the most common kind of agreement. When parties separate, whether they are married or not, they can resolve all of the matrimonial issues that arise when they separated by negotiating the terms of an agreement that will set out in black and white what it is that they have agreed to. Often what married people do is settle such things as custody, access, spousal support, child support, sign a separation agreement and do the divorce later. There is no need to begin a divorce to settle the matrimonial issues. And, of course, if you are not married, there is no need to get a divorce.

6. Cohabitation Agreements and Marriage Contracts

Cohabitation agreements and marriage contracts are quite similar. Usually, their purpose is to limit or define the parties' property and support rights and obligations should they later separate. Often the agreement will state that although it is a cohabitation agreement, if the parties marry then it becomes a marriage contract and if the parties later separate it becomes a separation agreement.

As no one has a crystal ball, I would recommend that every one whether they are cohabiting with someone for the first time or second time (or third time) seek legal advice from a family law lawyer and sign a cohabitation agreement. It may not seem very romantic to sign a cohabitation agreement or marriage contract when people begin living together limiting or defining their property and support rights and obligations, but if they sign an agreement at the beginning, it may, and most often does, avoid the legal expense that would be required to settle these rights and obligations or go to court to have the rights and obligations determined by the court if the parties later separate.