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Divorce and Seperation
Divorce and separation are legal processes that involve the dissolution of a marriage or partnership.
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Divorce: Divorce is the legal termination of a marriage by a court or other competent body. In most jurisdictions, divorce requires a legal process that includes filing an application for divorce, serving notice to the other party, and attending court hearings (if there are any other issues to be discussed). A divorce order and certificate of divorce issued by a court will allow you to remarry.
Separation: Separation is a state where a married couple decides to live apart while still legally married. It's not necessarily a formal legal process like divorce, although couples may choose to legally formalize their separation through a separation agreement. Separation can be temporary or permanent, and during this time, couples may negotiate issues such as property division, parenting, and support without officially divorcing. Some jurisdictions require a period of separation before a divorce can be granted.
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Both divorce and separation can have significant emotional, financial, and legal implications for the individuals involved and any children of the relationship. It's often advised that individuals seek legal advice and support when considering or going through these processes.
Asset and Property Division
Asset and property division typically refers to the process of dividing assets and properties between individuals, often in the context of divorce or dissolution of a partnership. This process can be complex and involves identifying, valuing, and distributing various types of assets, including real estate, investments, bank accounts, retirement accounts, businesses, vehicles, and personal belongings.
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The division process may involve negotiation between the parties, mediation, or litigation if an agreement cannot be reached amicably. In some cases, professional assistance from lawyers, financial advisors, or mediators may be sought to facilitate the division process and ensure that both parties' interests are fairly represented.
Business Income and Division
In Ontario family law, business income is typically classified as income for the purpose of determining child support and spousal support obligations. However, the classification and treatment of business income can vary depending on the specific circumstances of the case and the discretion of the court. Here are some key points to consider:
Disclosure: Both parties involved in a family law matter are generally required to disclose their income, including income derived from business activities. Full and accurate disclosure is essential for a fair determination of support obligations.
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Valuation: The value of business income may be determined by various methods, such as reviewing financial statements, tax returns, and expert testimony. Valuation may include factors such as revenue, expenses, assets, and liabilities related to the business.
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Imputation of Income: In cases where a party's income from the business is deemed to be artificially low due to tactics to minimize support obligations, the court may impute income based on the earning capacity of the individual or the business's potential income.​
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Income Tax Considerations: Income tax implications can also play a role in the classification of business income. The court may consider pre-tax or after-tax income depending on the circumstances.
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Reasonable Compensation: If one spouse is involved in a family business, the court may consider reasonable compensation for their efforts within the business as part of their income for support calculation purposes.
Special Circumstances: There may be specific circumstances unique to the business that require special consideration, such as seasonal fluctuations, irregular income, or ongoing financial obligations.
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​Expert Advice: Given the complexity of assessing business income in family law matters, it's often advisable for parties to seek the assistance of financial experts, such as forensic accountants or business valuators, to provide guidance and evidence to the court.
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Ultimately, the classification and treatment of business income in Ontario family law proceedings aim to ensure fairness and adequacy in support awards while taking into account the financial realities of the parties involved.
Common Law Trust Claims
Common law trust claims can arise in certain situations, particularly in the context of property division upon the breakdown of a relationship. A common law trust arises when one party holds property for the benefit of another, even though legal title may be held solely by the first party.
Here's how common law trust claims might come into play:
Unjust Enrichment: If one partner has contributed to the acquisition, maintenance, or improvement of property owned solely by the other partner, they may claim a beneficial interest in that property based on the principle of unjust enrichment. This could happen, for example, if one partner made significant financial contributions to the purchase of a home titled solely in the other partner's name.
Resulting Trusts: A resulting trust arises when one party provides the funds for the purchase of property, but legal title is held by another party. In such cases, the party holding legal title may be deemed to hold the property in trust for the benefit of the contributing party. For instance, if one partner uses their savings to purchase a property held in the name of the other partner, a resulting trust may be implied in favor of the contributing partner.
Constructive Trusts: A constructive trust may be imposed by the court when it determines that it would be unfair for one party to retain sole ownership of property in which the other party has made significant contributions or sacrifices. This could arise, for example, if one partner has made substantial non-financial contributions, such as caring for children or managing the household, which have contributed to the acquisition or maintenance of property held in the other partner's name.
In Ontario, the courts have wide discretion in determining property rights upon the breakdown of a relationship, and they will consider various factors, including contributions to the relationship (financial and non-financial), intentions of the parties, and the overall fairness of the outcome. It's essential to seek legal advice from a family law lawyer in Ontario if you believe you have a common law trust claim or if you're facing such a claim from your partner.
Children and Parenting Plans
When parents separate, they're encouraged to create a parenting plan that outlines how they will share responsibilities for their children.
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In Ontario, the terms "custody" and "access" have been replaced by "decision-making responsibility" and "parenting time" respectively. Decision-making responsibility refers to the authority to make major decisions about the child's upbringing, such as education, health, and religion. Parenting time refers to the time each parent spends with the child.
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The paramount consideration in any decision regarding children in family law matters is their best interests. Factors considered include the child's emotional, physical, and psychological needs, the child's views and preferences (if age-appropriate), the relationships between the child and each parent, and any history of family violence or abuse.
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Courts in Ontario encourage parents to resolve disputes outside of court whenever possible. This often involves mediation or other alternative dispute resolution methods where a neutral third party helps the parents reach an agreement. If parents can't reach an agreement, they may need to seek court intervention. In such cases, the court will make decisions based on the best interests of the child. However, courts generally prefer that parents work together to create their own parenting arrangements.
It's important for parents to understand their rights and responsibilities under Ontario family law and to seek legal advice if they have questions or need assistance navigating the process.
Child and Spousal Support
Child support is the legal obligation of parents to provide financial support for their children, typically until they reach the age of majority (18 years old) or complete their education, whichever comes later. Child support is intended to cover the child's basic needs, including food, clothing, and shelter. The amount of child support is determined based on the paying parent's income, the number of children involved, and any special circumstances. The Federal Child Support Guidelines provide a formula to calculate child support payments, which takes into account the paying parent's income and the number of children requiring support.
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Spousal support, is financial support paid by one spouse to the other following separation or divorce. Spousal support is intended to address any economic disadvantages or imbalances that may arise as a result of the relationship or its breakdown. Factors considered when determining spousal support include the length of the marriage or relationship, each spouse's income and earning capacity, the roles each spouse played during the marriage, and any other relevant factors. Unlike child support, there is no specific formula for calculating spousal support in Ontario. Instead, it is determined based on the individual circumstances of each case.
It's important to note that child support takes precedence over spousal support, meaning that child support obligations must be met first before considering spousal support. Additionally, both child support and spousal support can be subject to variation if there are significant changes in circumstances, such as a change in income or living arrangements.
If you're facing issues related to child or spousal support in Ontario, it's advisable to seek legal advice from a qualified family law lawyer who can provide guidance specific to your situation and help ensure that your rights and obligations are properly addressed.
Domestic Contracts (cohabitation, marriage, separation)
In Ontario, domestic contracts are legal agreements that individuals can enter into concerning their rights and obligations within a family relationship. These contracts can cover various aspects such as property division, support obligations, and parenting. The three main types of domestic contracts recognized in Ontario family law are:
Marriage Contracts: Also known as prenuptial agreements, these contracts are entered into by couples before they get married or during the marriage. They typically address issues such as property division and spousal support in the event of divorce or separation.
Cohabitation Agreements: These contracts are made between couples who are living together but are not married. Cohabitation agreements can outline how property will be divided and whether spousal support will be paid if the relationship ends.
Separation Agreements: When a married or common-law couple decides to separate, they may enter into a separation agreement to settle issues such as parenting, child support, spousal support, and division of property.
To be legally binding, domestic contracts in Ontario must meet certain requirements, including being made voluntarily by both parties, being in writing, and having each party provide full financial disclosure to the other. Additionally, it's advisable for each party to seek independent legal advice before signing the contract to ensure that their rights and interests are adequately protected.
