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Family Law 101
When two people cohabit in a committed relationship, either pursuant
to their co-parenting of a child, or for a significant length
of time (3 years or more), there arises a set of rights and obligations
that together make up what is called "Family Law".
Those rights and obligations are defined by the law, and address
a set of important issues relating to your property, financial
and cash-flow matters, and if applicable, the parenting of your
children.
This article is intended to provide you with an overview of some
of the terms and concepts surrounding Family Law, and give you
some links to more information. It describes the important issues
dealt with in Family Law, and gives details about what we mean
when we talk about the law, or about the court, or about negotiation.
We hope to also provide a bit of perspective on what other needs
are common for separating spouses.
All of this can make a difference to how you experience your separation
or divorce.
Family law issues fall into five categories. They are:
PARENTING
Also called "Custody and Access", is focused on two
main questions: "How will decisions relating to the child
be made?", and "Where will the child be spending their
time - minute to minute and day to day?"
CHILD SUPPORT
The answer to the Parenting questions above will usually result
in obligations for some child support to flow from one parent
to the other. This issue is primarily governed by the Child
Support Guidelines.
SPOUSAL SUPPORT
After cohabiting as spouses for three years or more, married
or unmarried spouses in Ontario are entitled to 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
Property Division 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 mechanism for unmarried folks.
The question of "who gets what?" in that situation must
be determined by reference to "legal title" (ie. who
legally owns the property, which is often the person who paid
for the asset) and a set of complicated common law concepts known
as constructive trusts (where a legal owner can be deemed to actually
hold part of an asset in trust for another).
DIVORCE
Only relevant to married spouses, this issue is the one issue
the parties cannot settle via a written agreement. This requires
a court order. 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 exists in two ways: Statutory law and Common Law. Statutes
are laws and regulations passed by Parliament and Legislatures.
These are rules with broad guidance on their application.
Common Law is the collected written decisions of courts wherein
each judge/court has applied Statutory Law (and reason and interpretation
and analysis) to the particular people and circumstances before
it.
To determine the answer to any legal issue, a lawyer must know
both the statutory law that applies, and be able to determine
what common law cases are relevant to the set of circumstances
of the matter at hand.
In addition to the general difficulty of knowing what the law
is, family law presents a special challenge. Unlike most areas
of the law, family law has recently had the habit of dramatically
changing in a very short period of time.
Major shifts in what society expects with respect to traditional
gender roles, family responsibilities and the complexities of
our lives all impact on 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.
The family law statutes applicable to most Ontario situations
are as follows:
Family
Law Act
Children’s
Law Reform Act
Family
Law Rules
The Common Law applicable to Ontario residents is generally Ontario-based,
but there is nothing stopping a judge in an Ontario case from
citing some relevant legal precedent from some court in Alberta,
or British Columbia or Nova Scotia. The Common Law is enormously
vast, and the thousands of relevant cases are not stored in one
place. To get a sense of the stunning complexity of it all, you
can view a small fraction of the common law at this free site:
www.canlii.org.
The Ontario
Attorney General has a good general resource page.
The CRA
has a detailed discussion of many financial and tax matters concerning
separated and divorced spouses.
"Parenting
After Divorce", from the Canadian Department of Justice.
Child
Support Guidelines from the Department of Justice.
Family
Violence Initiative, also from the Department of Justice.
We are lawyers. They are the Court. We are their officers - duty
bound to present our clients' facts and argue the law with honesty,
integrity and zeal. Without them, we are just verbose posers in
funny robes. Without us, they are seriously hamstrung in their
duty to do justice to the citizens of Ontario before them in accordance
with the law.
More information is available on the website for the Ontario
Courts.
Of the cases that go to court, something between 3% and 5% actually
get all the way to be heard at a trial. Therefore, 95% to 97%
of cases settle before trial, and they only settle because the
parties have reached a negotiated agreement.
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 negotiate with your spouse and their
lawyer (although we will bargain with the rare hard-headed spouse
who refuses to get their own lawyer). We can also support you
if you and your spouse are conducting a mediation. We also provide
the mediation services, or we can represent you through a special
structured negotiation called Collaborative Family Law.
We can connect you to support that will make this time easier.
We have a number of professionals with whom we have built a trust
relationship, that we know deliver the kind of dignified service
and attention to detail that we ourselves expect. We assess each
client individually, and provide them with choices and options
customized to them.
As stated, we can access and connect you with a range of locally-provided
services in support of your individual needs.
Whether it's counselling, focussed health care, real estate advice
and guidance, financial assistance, or other help that you require,
we can connect you to our trusted colleagues in the field.
Finally, here is a link to a large archive of articles from an
Ontario social worker, Gary Dirnfeld, that you may find helpful,
about parenting
and about separation
and divorce.
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