Family Law

Divorce and Separation

When a couple separates because of a broken relationship, they live apart. Marriage may exist between the couple, or they may live together as a common-law couple even though they aren’t married. Divorce is the official end of a marriage by a court. Divorce can only be granted to legally married couples. Family law is the responsibility of the federal, provincial, and territorial governments under the Canadian Constitution.

Federal Law

It is the Divorce Act that governs family law. Those who have divorced or filed for divorce are subject to the Act. According to the Divorce Act, there are rules regarding the following:

• Grounds for divorce
• Divorced parents’ child support obligations
• Divorced spouses’ spousal support
• After a divorce, arrangements for custody and parenting

Divorce Acts are federal laws, meaning they apply across the country. Divorce procedures, however, are administered by provinces or territories.

Provincial and Territorial Laws

Children’s custody, spousal support, and parenting arrangements for children are also governed by provincial and territorial laws. Separations between unmarried couples and separations between married couples without a divorce are subject to these laws. Provinces and territories may have laws similar to the Divorce Act and laws in other parts of Canada. You may have different rights and responsibilities depending on the differences. In some cases, separation and divorce cases fall under provincial or territorial law. Provinces and territories are responsible for, among other things:

• Process divorce applications, determine child support and spousal support and oversee child custody decisions
• Division of shared Property according to the rules
• Mediation and parenting education are family justice services.

Having a foreign divorce recognized in Canada Divorces from another country are generally recognized in Canada if:

• It was a valid divorce under that country’s laws; and
• Before filing for divorce, either spouse lived in that country for an entire year.

In addition, other factors may also affect the recognition of your divorce in Canada. Whether your divorce would be recognized in Canada should be discussed with a lawyer if you are unsure. Divorcing a spouse, you sponsored to come to Canada. Whether you separate or divorce during that period, if you sponsored someone to come to Canada as your spouse, the sponsorship undertaking you signed remains in effect for three years after the person becomes a permanent resident. You are responsible for your sponsored spouse’s primary needs throughout the sponsorship undertaking.

Parenting order

According to a parenting order, parents who make or update parenting arrangements after the new law goes into effect will have their parenting time and decision-making based on what is in their child’s best interest. It is your responsibility to take care of your child during parenting time. You do not have physical custody of your child while he or she is at school or in daycare. In most cases, unless the court orders otherwise, every person with parenting time has the right to make day-to-day decisions for their children. Bedtimes and meals are among the daily decisions a parent makes for their child.

Decision-making responsibility

Under the new legislation, there is a concept of “decision-making responsibility” that refers to the duty to make crucial decisions regarding a child’s well-being. The following decisions need to be made about your child:

• health
• education
• Languages, cultures, religions, and spiritualities
• Significant extracurricular activities

Examples like these are provided. Making significant decisions regarding your child’s welfare is part of your decision-making responsibility. Contact orders During parenting, a child will usually contact grandparents or other extended family members. The court may make a contact order in the child’s best interest if contact cannot occur during a parent’s parenting time. If you have a contact order, in this case, you can visit your child or stay in touch with them. Applicants for parenting or contact orders include:

• A parenting order can be obtained by either spouse, a parent, or any other person in a parental role. Parenting orders can only be obtained by non-spouses with the court’s “leave.” They must obtain permission from the court to do this.
• Contact orders can only be applied for by non-spouses. A court must grant permission before an application can be filed.

Parenting plans

The court will consider your and the other parent’s plans for raising your child when determining your child’s best interests. As much as possible, the new law encourages parents to develop parenting arrangements without court intervention. Parents, mediators, and lawyers use a “parenting plan” to determine how parents share responsibilities following separation and divorce. Parenting plans can be very general, stating when your child will spend time with each parent, who will make decisions for him or her, and who will make decisions. It can also be particular as well as defining clear areas of responsibility for each parent, setting detailed schedules for your child’s activities and holidays, and discussing communication, travel, and other aspects of your child’s care. Under the new law, a court must include a parenting plan in a parenting or contact order if both parents agree, unless it does not serve the child’s best interests.

Child Support

There may have been changes in your family, but you are still parents and need to love and support your children. Making good decisions about your family can be easier if you know your rights and responsibilities. Making those decisions together can also be easier with the help of this tool. Each parent has a legal duty to provide financial support to his or her children, and both parents are responsible for doing so. Divorce or separation does not end those rights and responsibilities. As you separate or divorce, you may have to make decisions about child support to ensure that both of you continue supporting your children financially. The best interests of your children should be considered when deciding how to take care of them after your divorce or separation. They are also confused and stressed by the changes in your family. Keeping your children out of the middle is crucial. A separation or divorce may result in financial hardship for them, so you must protect them as best you can.

About the Federal Guidelines

During a divorce, parents use Federal Guidelines to determine child support. Th. Their main objectives are:

• It is essential to ensure that children benefit from both parents’ incomes after a divorce or separation.
• Child support calculations should be more objective to reduce tension and conflict between parents.
• The same treatment should be provided to parents and children in similar circumstances.
• By providing guidance about child support to courts and parents, the legal process can be made more efficient, and settlements are encouraged.

Child Support Agreements and Orders

It is common for parents to work out a child support arrangement without having to go to court when their relationships end. Family members may find it time-consuming, costly, and stressful to ask a judge to decide for them. When parents can agree, everyone benefits, especially children. If you want to remember what you agreed to, you should put your child support agreement in writing. We encourage you to work out a child support agreement together. The following guide can help you determine your situation’s best child support agreement. Under the Federal Guidelines, it can also help you determine how much support a judge is likely to order. You can go to court to get a child support order if you cannot agree or want your agreement to be put into a court order. There can be a lot of complexity involved in family law issues. An attorney at Negi’s can help you make sense of all the relevant factors in your situation and give you legal advice. You can also claim benefits and taxes based on your decisions and how your order is written. It is essential to speak with a legal adviser when attempting to come to an agreement on child support or going to court to resolve specific issues:

• Children’s rights and your legal responsibilities.
• Taking responsibility for your children.
• How you and your partner can resolve differences.
• Processes such as negotiation, mediation, and arbitration are used in family dispute resolution.

Spousal support

The federal Divorce Act establishes spousal support rules for married couples who divorce. Canada’s Divorce Act is a federal law, so the rules apply nationwide. Couples in a common-law relationship or who separate but are not divorcing should follow the laws of their province or territory. A large income gap between the spouses after separation is likely to result in spousal support being paid under the federal Divorce Act. There are, however, exceptions to this rule. Support may not be awarded to a spouse with a low income if the court decides as such. If the spouse with the higher income has many assets, or if anything during the relationship caused the difference in income, then the court might reach this decision. Spousal support is unavailable to common-law partners in Quebec when they separate under provincial law. In several provinces and territories, a common-law partner may be entitled to spousal support from the other spouse. Common-law partners in Quebec are usually called “de facto spouses.” The length of time the couple spent together before separating may influence this. It may take two or three years for a common-law couple to qualify for spousal support in some provinces and territories. There are different rules in each province and territory of Canada. If you can’t find what you’re looking for on the website of your provincial or territorial Ministry of Justice or Attorney General, you may contact a lawyer for assistance.

Judges consider several factors.

Judges must consider several factors when deciding whether a spouse should receive support after a divorce. A few of these factors are:

• Consideration of both spouses’ financial needs and means;
• The duration of the marriage;
• the roles of each spouse during their marriage;
• A breakdown of the marriage and the effects of those roles on the current financial situation of both spouses;
• Taking care of the children;
• Supporting spouses in achieving self-sufficiency within a reasonable period of time; and
• A spousal support order, agreement, or arrangement has already been made.

As well as considering whether spousal support would satisfy the following purposes, judges must also consider the following:

• If the spouse with a lower income is responsible for the children’s care, he must be compensated; or
• If both spouses can pay, a spouse in financial need might be able to receive assistance,

Additionally, the judge must consider that a spouse who receives support must eventually become self-sufficient.

Payment of both Child and Spousal Support

It is the responsibility of both parents to support their children. Whether spousal support will affect child support payments must also be considered by the judge if either spouse pays child support. The Divorce Act clearly provides that child support must take precedence in divorce cases where both child and spousal support are requested.

Marriage Contracts

Marriage contracts and cohabitation agreements protect your rights if your relationship or marriage does not work out. In essence, a marriage contract or cohabitation agreement is a blueprint for how your marriage or relationship will dissolve from a legal perspective. As divorce rates are high, individuals often seek protection. It is common for spouses-to-be to accumulate wealth before marrying or cohabitating. In a marriage breakdown, marriage contracts allow the parties to retain or not share assets or provide no spousal support in a divorce. Pre-existing businesses or homes purchased by one spouse before the marriage would be examples of assets to be removed from the net family property. In case of a relationship breakdown, cohabitation agreements can address spousal support and prevent the other spouse from creating an interest in the Property. To be enforceable, a marriage contract in Canadian law must meet specific criteria, the most important of which is complete and frank disclosure of financial information. Additionally, the contract should be in writing, and the parties should have had independent legal counsel. Waiving these criteria is at the parties’ discretion, but it may affect their ability to set aside a contract in the future. Marriage contracts that are signed under duress, for example, an hour before the wedding ceremony, may not be unenforceable on their own, but they may be used as a basis for determining whether they should be set aside in the future. Your peace of mind will increase if you protect yourself, your future, and your assets. There is no agreement regarding the dissolution of a marriage if there is no agreement for a specified period. A good faith contract is one where the parties agree to continue negotiating their marriage contract and proceed with the marriage. This way, the party’s marriage contract terms can be completed, and the wedding can take place. We can draft a Standstill Agreement when parties are getting married and negotiating a contract but not yet completing it. Cohabitation agreements and marriage contracts may seem unromantic, but they provide a safety net when uncertainty is present.

Separation Agreement

When two people who have lived together as a married or common-law couple decide to separate, they are called separated. Separation does not end a marriage if you are married.

Divorce and separation: dividing Property and debts

The Property you share with your partner must be divided after your relationship ends. Debts may also need to be shared if you’re married. If you want to divide your finances, you should act quickly. Your right to your share of the Property may be lost if you wait too long to make a claim after your divorce or separation. There may be the following items on your Property:

• Separate or joint bank accounts
• RRSPs (Registered Retirement Savings Plans)
• TFSAs (Tax-Free Savings Accounts)
• The contents of your home
• An investment
• Credits from the Canada Pension Plan (C.P.P.) or Quebec Pension Plan (QPP)
• Pensions sponsored by employers
• Vehicles
• The family pets
• Plans for insurance

You may owe the following:

• a mortgage
• a personal loan or line of credit
• credit card debt
• a car loans

Property division during separation and divorce is determined by federal, provincial, and territorial laws. Depending on your situation, you might be subject to the following laws:

• According to the province or territory where you live
• Whether you’re married or living together as a couple

Property division in a common-law relationship Property usually remains in the hands of the buyer. You might be entitled to a share of the Property owned by your former partner if you assisted in the purchase and maintenance of that Property. The court may be your only option if your common-law partner disagrees.

Dividing Property in a marriage

You usually divide the value equation when you buy a property during a marriage. In addition, if your property value increases during the marriage, you divide it equally. Exceptions do exist. You and your spouse can divide Property differently. Your Property may be divided unevenly by the courts. One spouse may owe money to the other spouse if he or she owns the larger share of family property. A Cohabitation or Prenuptial Agreement can be used to Divide Property. A prenuptial agreement is also known as cohabitation or a premarital agreement. In case of a separation or divorce, it covers what you agreed to do with your Property. Cohabitation or prenuptial agreements can be set aside by a judge in certain circumstances.