ISSUES
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Divorce
According to Canadian Law, married couples can obtain a divorce after living separate and apart for one year. In some situations a divorce can be obtained before a one-year separation but couples usually simply wait for the one-year to expire.
While obtaining a divorce can be straightforward, a court order is always required. Sometimes, people agree to issues like custody and support on their own and only apply to the court to obtain a divorce. Those cases, called uncontested divorces, take a relatively short amount of time and cost relatively little. However, it is important to be fully aware of the impact a divorce can have on your rights.
It is advisable to obtain legal advice from a lawyer before obtaining a divorce.
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Separation
Both married couples and "common law" spouses (people who have lived together for three years or have a child together) separate when one or both individuals decide that the relationship is over and the couple stop "acting" like a couple. That usually involves a physical separation but parties can be considered separated while continuing to live in the same house.
While there is no such thing as a "legal separation", a number of legal issues arise on separation, which should be addressed. Those issues can include such things as child custody and access, support and division of property. Often, a couple is able to negotiate or mediate an agreement, which is turned into a "separation agreement". In other cases, people must rely on the court process to provide a resolution.
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Child Custody & Access
Custody technically means the legal responsibility to make decisions for the child related to health, education and religion. Access is the right to be with the child at a given time. Many terms are used to describe post separation child/parent relationships, such as shared parenting, joint custody, shared custody, co-parenting, sole custody etc.. However, all of these terms describe the same two basic issues: who makes the primary decisions relating to the child and where does the child live and when.
The law requires that custody and access be determined in accordance with a child's best interest. In determining the best interests of a child, parents and judges consider many factors such as the relationship between the child and his or her parents, the ability of each parent to provide the child with appropriate parenting, stability, and, in some cases, the wishes of the child.
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Spousal Support
Spousal support, also known as alimony, is a particularly complex and difficult area of law. The purpose of support is to recognize the disadvantage one spouse may have suffered as a result of the relationship or its breakdown. To determine whether support is owed and the amount and duration of support, many factors must be considered such as the nature of the relationship, the roles which the parties adopted during the relationship, the current incomes of each party and their ability to earn income. As long as spousal support is paid pursuant to a court order or written agreement, it is generally tax deductible for the person paying and included as taxable income for the person receiving the spousal support.
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Child Support
With the introduction of the Child Support Guidelines in 1997, the law on child support became relatively straightforward. In most cases, a table based purely on the income of the support payer determines the appropriate amount of child support. In addition to that basic amount, a support payer may also be required to contribute to special expenses such as day care, extracurricular activities, health care expenses, and school tuition. The amount of the contribution is determined by considering both parties’ income and the tax implications, if any, of the particular expense. Child support is generally not tax deductible for the person paying and not included in the taxable of the person who receives it.
For more information on child support visit www.attorneygeneral.jus.gov.on.ca/english/family/childsupport.asp or canada.justice.gc.ca/en/ps/sup/index.html.
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Property Rights
In Ontario, married couples are required to divide most of the assets and debts accumulated during marriage. To divide property properly, both parties must have good information about the value of their assets and debts on both the date of marriage and at separation. Common law spouses are not required to divide assets accumulated during their relationship. They may have a claim to property to which they have contributed through their own work or financial contribution. However, this type of claim is complex and depends on the particular circumstances of the case.
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