Family Law - The Basics

There are five main issues in family law:

Parenting – Also known as “Custody and Access”.  The two main concerns here are: “How will decisions relating to the child be made – minute to minute and day to day?”, aka “decision making”, and “Where will the child be spending their time – minute to minute and day to day?”, aka “the parenting schedule”.

Child Support – Generally, most parenting situations result in a legal obligation for some child support to flow from one parent’s household to the other parent’s household.  This issue is primarily governed by the Child Support Guidelines (http://canada.justice.gc.ca/en/ps/sup/).

Spousal Support – Spouses who have cohabited for three years or more (married or unmarried) in Ontario may advance a legal claim for support from the other spouse.  The number of factors considered by the courts, and the wide range of possible outcomes make this, in our opinion, one of the hardest issues to understand. 

Property Division – This is the process of dividing the assets and debts you acquired during your time together.  There is a statutory division scheme for married persons, which is complicated enough, but there is no such statutory scheme for unmarried cohabitants.  In that situation, legal ownership is very relevant (i.e. the legal title holder, which is controlled by the person who paid for the asset at the time of purchase) but can be checked by a set of complicated common law rights involving a court’s perception of “value received” by both parties during the relationship.  Further complicating matters are “constructive trust” claims where one claims that it would be unfair to not construe that a part of the property is being held “in trust” for them by the legal owner.  Whether you are married or not, the law relating to this area is complicated and full of twists. Proper application of the law can lead to surprising results.  This is not an area where it is remotely safe to “do it yourself”.

Divorce – Obviously only relevant to married spouses, this is the one issue the parties cannot simply agree on and settle via a written Separation Agreement as a court order is required.  How, when, and upon what grounds a divorce order is obtainable from the court is a question that varies from case to case.

The Law – This manifests itself in written laws or statutes - which is what is passed by Parliament and Legislatures (essentially a set of relatively general rules and principles) and the common law - the collected decisions of courts wherein each judge/court has applied the written laws and principles (with interpretation and analysis) to the particular people and circumstances before it.  Those decisions are then published, and act as precedents and may be referred to by later lawyers and parties as an indication of how the law should be applied.

Knowing what the law is on any particular point at any particular moment in time is a blend of art and science and why lawyers go to school for years and years.

On top of the general difficulty of knowing what the law is, given its mercurial nature, family law presents a special challenge.  Unlike most areas of the law, family law can change dramatically in a very short period of time.  Shifts in what society expects with respect to traditional gender roles, family responsibilities and the complexities of our lives all impact and influence family law.  In fact one could say that family law in the space of twenty years (a blink of an eye in “legal time”) has undergone such dramatic changes as to be barely recognizable.

Ontario’s family law statutes most frequently referred to are:

Family Law Act:  http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90f03_e.htm
Divorce Act: http://www.canlii.org/ca/sta/d-3.4/whole.html
Children’s Law Reform Act:
http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90c12_e.htm

Family Law Rules:  http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_990114_e.htm

Further complicating the process of finding out what “the law” is on any given point, is that all that is relevant is not stored in one place.  If you are interested in looking at the stunning complexity of it all, and wish to splash around for a lark in a free website that provides a small fraction of the common law, then at your own risk you can visit this site:  www.canlii.org

Helpful Websites

As you know, the internet has a seemingly infinite number of articles and pages on divorce and separation.  Here are some links to other information you may find useful or helpful:

The Attorney General has a good general resource page:  http://www.attorneygeneral.jus.gov.on.ca/english/family/default.asp

The CRA has a very detailed discussion of many financial and tax matters concerning separated and divorced spouses:
http://www.cra-arc.gc.ca/menu-e.html

The Federal Department of Justice has a good page called “Parenting After Divorce”:
http://canada.justice.gc.ca/en/ps/pad/index.html

Also at the Department of Justice, their Child Support Guidelines page is good:
http://canada.justice.gc.ca/en/ps/sup

As is their page about the Family Violence Initiative:
http://canada.justice.gc.ca/en/ps/fm

A large archive of articles from an Ontario social worker, Gary Dirnfeld, about parenting: http://www.yoursocialworker.com/articles.htm and about separation and divorce: http://www.yoursocialworker.com/sep-dev.htm

The Courts – Lawyers are “officers of the court” – duty bound to present our client’s facts and argue the law with honesty, integrity and zeal.  Without the court, we are powerless to get your result, but without the lawyers, the court is severely limited in its ability to do justice to the citizens of Ontario before them in accordance with the law.  Here is the website for the Ontario Courts:   www.ontariocourts.on.ca

Negotiation – It is estimated that only 4% of cases started at court actually get all the way to be heard at a trial.  So, 96% of cases end with a negotiated agreement - hopefully reached with the assistance of their lawyers and not despite their lawyers.

Negotiation is a skill.  We have that skill and a great deal of experience.  We can do it while the litigation is on-going, but our strong preference is to bargain before anyone starts a court action.  We can work with anyone and in any realm – direct negotiations, negotiations through lawyers or negotiation while the court action is underway.  We can also support you if you and your spouse are conducting a mediation.  In fact, we can actually provide the mediation services, or we can represent you through a special structured negotiation called Collaborative Family Law.

Other Needs – We can connect you to support that will make this time easier.  Each client has an individual set of needs, and we work to provide you with choices and options customized to you.  We have a range of locally-provided services in support of your individual needs.  You or your children may need some counselling, or more specific mental health care to assist you with this challenging life transition.  The matrimonial home may need to be sold.  How much is it worth?  What is the market like?  Who is best to take it to market for you?  What about the family business?  What about your own individual financial health once this is all over?  Can you get a mortgage for the new place you think will meet your needs?  You probably will need help if you are going to do this right.  We can connect you with those that can provide you with the information, guidance and services you need.

Unlike most areas of the law, family law can change dramatically in a very short period of time.