Separation & Divorce

Parenting

Decision making responsibility (also referred to as “custody”) can be shared by parents or allocated to one parent. It means the duty to make important decisions about a child’s health, education, culture, language, and extracurricular activities. Parenting time (also referred to as “access”) refers to the time a child is in each parent’s care. Parents can agree on arrangements for their children in a Parenting Plan. If parents cannot agree, a judge can make a court order based on the child’s “best interests”.

Child Support

There are two kinds of child support: Table child support and extraordinary or “section 7” expenses. Table child support is determined by the Child Support Guidelines based on before tax income, number of children, and the province in which the payor resides. For parents who have a shared parenting schedule, a “set-off” payment may be calculated, which is the difference between the Table amount for the parent with the higher income less the Table amount for the parent with the lower income. In addition, parents must share children’s extraordinary expenses in proportion to their incomes.

Spousal Support

At separation, a higher earning spouse may be obliged to pay spousal support depending on the situation. The law also expects adults to contribute to their own support. A common law spouse may be entitled to spousal support after 3 years cohabitation or if the spouses have a child together and the relationship is of “some permanence.” A married spouse may be entitled to spousal support after any length of marriage. The amount of spousal support depends on various factors. The Spousal Support Advisory Guidelines provide ranges for the amount and duration of spousal support.

Property

The law in Ontario treats common law spouses differently than married spouses when it comes to dividing assets. The equalization model under the Family Law Act means that married couples shared net worth acquired together and, with some limited exceptions, the spouse with a higher net worth pays an “equalization” to the spouse with a lower net worth, on separation. Common law partners keep property in his or her own name. In some cases, a common law spouse may have a legal interest in property owned by the other.

Separation Agreements

When spouses agree on the family law issues between them, such as parenting, support, and property, they may enter into a Separation Agreement. A Separation Agreement can be entered into by married or common law spouses and is a written contract that sets out some or all of the terms of the separation. Separation Agreements are domestic contracts under Ontario’s Family Law Act and can be enforced like a court order. For married spouses, the divorce is a separate process that follows the Separation Agreement.

Variations of Agreements and Orders

After separation, there may be changes that require a change to a Separation Agreement or final court order. These may include changes to arrangements for children as they grow up or changes to spouse’s financial circumstances, such as the loss of a job, remarriage or a new common law relationship, or a new job or promotion that increases a spouse’s income. When these changes occur, spouses may enter into an Amending Agreement to change the terms of the existing agreement or order. If the spouses cannot agree on the changes, either spouse may start a Motion to Change in the court and ask the court to make a new order that changes the existing terms.