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Separation & Divorce
In Canada, divorce is governed by the Divorce Act.
The current Divorce Act outlines that a divorce is granted on one ground only, being the breakdown of the marriage.
Breakdown of the marriage can be established in three ways. First, a married couple that has been separated for one year is entitled to a divorce. This is the primary ground that spouses use to establish that there has been a breakdown in the marriage. Adultery and cruelty are the two remaining grounds. If one spouse can prove that the other spouse has committed adultery or that their spouse has been cruel or abusive to him or her, he or she is entitled to a divorce (even if the parties have not been separated for one year). These two criteria rely on fault grounds, which are difficult as well as costly to prove, and, therefore, are rarely used today.
Breakdown of the Marriage & Division of Property in Family Law
The courts in Ontario treat marriages as a form of partnership. As such, following separation and on the request of one of the parties, the court will assess the overall increases in the value of property accrued by the parties during a marriage and provide a balancing payment to one of the parties. In general terms, on separation, each spouse calculates his or her ‘net family property’ by deducting the value of his or her net asset position (being assets minus debts) as at the date of marriage from the value of the spouse’s net asset position as at the date of separation. The spouse with the greater net asset position will be required to pay one half of the difference to the spouse that has the lower net asset position. The payment that is made from one spouse to the other spouse is referred to as an ‘equalization payment.’
There are notable exceptions to these rules, which are known as excluded property. Excluded property is property that does not have to be included in a spouse’s net family property and the value of which is therefore not included in a determination of the equalization payment. For example, excluded property includes gifts or inheritances that are received during the marriage from a third party, so long as that money was not used towards the matrimonial home and was not inextricably co-mingled with the other spouse’s assets.
In addition, a court has the power to award a spouse an amount that is more or less than half the difference between the parties’ net family properties dependent on whether an equalization would be considered “unconscionable” under s. 5(6) of the Divorce Act.
Custody, Residency & Access
Custody refers to the power to make major decisions regarding the upbringing of a child. These decisions include matters relating to the religion of the child as well as his or her education and medical treatment.
When a parent is granted sole custody, that parent has the exclusive right to make all major decisions on behalf of his or her minor child. Where the parents agree on joint custody, both parents must jointly agree on all major decisions relating to their child.
Residency, on the other hand, refers to where the child will live. Day-to-day decisions are made by the parent in whose care the child is, according to the residential schedule.
When the child has primary residency with one parent, the other (non-custodial) parent usually has rights of contact or access. Access includes the right to be given information about a child’s health, education and welfare. The access parent is entitled to inquire about and to be given information from sources like the child’s school, doctor and daycare providers.
In an intact relationship, both parents have custodial decision-making authority. After the parties’ separation, if one parent moves out of the house with or without the child or if one parent allows the other parent to relocate with the child, the parent who remains with the child and who cares for the child daily has de facto custody. The other parent is entitled to access.
The Family Responsibility Office (FRO)
The Family Responsibility Office, commonly referred to as the ‘FRO’, is a provincial agency that is authorized to enforce support payments from a payor (the person who is obligated to pay support) to the recipient (the person who is entitled to receive support). The Family Responsibility Office enforces both child support and spousal support. The Family Responsibility Office does not have the authority to deal with other types of orders, such as an order for an equalization payment.
All support orders, whether temporary or final, that are made in Ontario are automatically registered for enforcement by the Family Responsibility Office. Parties may withdraw from this enforcement by the Family Responsibility Office, assuming that both spouses give their consent to do so. In addition, according to section 35 of the Family Law Act, any domestic contract dealing with support may also be filed with the Ontario Court of Justice to be enforced by the Family Responsibility Office.
The Family Responsibility and Support Arrears Enforcement Act, 1996 empowers the Director of the Family Responsibility Office to collect on outstanding support orders. The Family Responsibility Office is able to sanction the payor if he or she does not pay the recipient. The Family Responsibility Office has broad and effective powers it can use to enforce support, including, but not limited to:
a) Garnishing a payor’s income, and taking the support payments directly from the payor’s employer;
b) Suspending a payor’s driver’s license;
c) Garnishing or seizing a payor’s bank accounts, investments accounts, RRSP’s, etc.;
d) Suspending a payor’s passport;
e) Placing a charge on the payor’s real or personal property; and,
f) Bringing a Default Hearing before a judge (at such a hearing, the payor will have to answer to a Judge with respect to why they are in breach of the support order), where, in the most egregious instances, a Judge has the authority to imprison the payor for a period of time.
The Family Responsibility Office stops enforcement when a support obligation has terminated. This will not occur automatically, rather the Family Responsibility Office will only stop enforcing an existing support order if:
a) The parties both voluntarily advise in writing that support has terminated; or,
b) If a new order is obtained from the Family Court’s terminating the previous support order. The new order would then have to be provided to the Family Responsibility Office.
According to section 7 of the Family Responsibility and Support Arrears Enforcement Act, 1996, the Family Responsibility Office may refuse to enforce a support order in a number of situations, including the following:
- The amount of support is nominal.
- The amount of support cannot be determined from the face of the order because it is expressed as a percentage of the payor’s income.
- The order is unclear or ambiguous.
The Basics of Spousal Support
Spousal support rights and obligations can apply to both married and common law couples. In a common law relationship, a party may have a right to spousal support if:
a) They have a child or children together; or,
b) They have been cohabiting for a period of more than three years.
According to section 15.2(6) the Divorce Act, spousal support awards should:
a) Recognize any economic disadvantages or advantages to the spouses arising from the marriage or its subsequent breakdown;
b) Apportion between the spouses any financial consequences that have arisen from caring for any child of the marriage in excess of any obligation for the support of any child of the marriage;
c) Relieve any economic hardship borne by the spouses, which arises from the breakdown of the marriage; and,
d) In so far as is practicable, promote the economic self-sufficiency of each spouse in a reasonable period of time.
While adults are expected to take care of themselves and become self sufficient following the breakdown of a relationship, there are often factors and consequences of the relationship which may leave one party at an economic disadvantage. For example, where one party forgoes career opportunities or advancements in education in order to maintain the home and be a stay-at-home parent, they may serious impediments to their future financial self sufficiency.
Generally, if one spouse is unable to support himself or herself or if there is a significant difference between the income of the parties, the lower-earning spouse may have a claim for spousal support from the higher-earning spouse. Subject to any agreement between the parties, based on current case law a spouse who is not able to maintain a standard of living commensurate to the accustomed lifestyle upon the breakdown of marriage is likely entitled to support. Although the Spousal Support Advisory Guidelines, commonly referred to as the ‘SSAG’, are not mandatory, they are often considered by judges in cases involving claims for spousal support.
The duration and quantum of spousal support is dependent on many factors, including but not limited to:
a) The length of the marriage;
b) The age and health of the recipient on the date of separation;
c) The effects of the relationship on the recipient’s career and education opportunities; and,
d) The employability of the lower-earning spouse.
Addressing Domestic Violence in Family Law
The following are some of the ways in which domestic violence is addressed within the family law context:
According to section 16(9) of the Divorce Act as well as section 24(3) and (4) of the Children’s Law Reform Act, violence against a partner or against a child is considered past conduct that is relevant to one’s ability to parent and which is significant in determining issues of custody and access.
According to section 24(3)(f) of the Family Law Act, in determining whether to make an order for exclusive possession, the court shall consider any violence committed by a spouse against the other spouse and/or a child.
Section 46 of the Family Law Act and section 35 of the Children’s Law Reform Act outline that on application, the court may make a restraining order.
Abuse by a partner may also be the basis for a tort action (for example: assault, battery, intentional infliction of mental suffering). These tort claims may be brought within a family law proceeding, as opposed to commencing a separate action.
If damages are awarded against the abuser and he or she does not have any funds, one may be able to receive compensation from the Criminal Injuries Compensation Board.
Best Interests of the Child
When determining custody, residency and access according to section 24 of the Children’s Law Reform Act and section 16(8) of the Divorce Act, the test is what is in the best interests of the child?
The best interests of the child test is focused on the child’s needs as opposed to the parents’ rights.
The following is a list of some of the factors that are used to determine what is, in fact, in the best interests of the child:
- A child’s physical well being;
- The bond between a child and his or her caregivers;
- The child’s physical, financial and emotional needs;
- The parent’s ability to care for the child;
- The child’s culture, language and religion;
- The benefit of keeping siblings together; and,
- The child’s views (The older the child, the more weight will be given to his or her desires.)
Lump Sum Spousal Support
If sufficient resources are available spousal support may be paid from one spouse to another in lump sum form. This has the advantage of allowing the parties to have a clean break. A lump sum may also be appropriate if the payor spouse presents a high risk of defaulting on ongoing payments.
Lump sum spousal support is not taxable in the hands of the recipient and it is not tax deductible to the payor.
Family Responsibility Office: Opting In/Out
In a family law case, the parties may opt out of enforcement by the Family Responsibility Office (FRO) if each party consents to this and files a notice of withdrawal with the FRO. The notice must be signed by both parties. According to section 16 of the Family Responsibility and Support Arrears Enforcement Act, 1996, a recipient may subsequently choose to opt back into enforcement by the FRO.
A recipient may unilaterally opt out of enforcement by the FRO if the payor is in default.
A previous case held that arrears accumulated during the withdrawal period cannot be enforced after a recipient opts back in. However, this is no longer the case as this has been cured by an amendment to the legislation.
An Introduction to Rule 13 of the Family Law Rules
A financial statement is a sworn document used in the context of family law proceedings to ascertain prompt and accurate financial disclosure.
If the claim made is only for support, then Form 13 is used. For all other claims, Form 13.1 is applicable.
Rule 13(1)(a) of the Family Law Rules provides that a party making a claim for support, property, or exclusive possession of a matrimonial home and its contents must serve and file a financial statement along with the documentation that contains the claim. If the only claim for support is for child support in the base amount as specified in the Child Support Guidelines, then the party making the claim does not have to file a financial statement unless the party is also making a property claim or a claim for exclusive possession of the matrimonial home.
Rule 13(1)(b) outlines that the party against whom the claim is made must also serve and file a financial statement, irrespective of whether that party intends to defend against the claim.
According to Rule 13(10) the clerk of the court is prohibited from accepting an Application, Answer, Reply, Notice of Motion or Affidavit in response to be filed if the Family Law Rules require that the document be filed with a financial statement and no financial statement is provided.
Rule 13(6) requires that a party serving a financial statement make full and frank disclosure of his or her financial situation and attach documents to prove his or her income (being income tax returns and notices of assessment for the previous three years). According to Rule 13(7) of the Family Law Rules, a court clerk is prohibited from accepting a financial statement of a party unless these documents are attached, except where the financial statement contains a sworn statement that the party is not required to file an income tax return in accordance with the Indian Act.
Rule 13(12) mandates that every party update his or her financial statement before case conferences, motions, a settlement confrence or trial, assuming that the information is more than thirty days old. If there have only been minor changes, a party can instead file an affidavit detailing these changes. Furthermore, in accordance with Rule 13(15) of the Family Law Rules, as soon as a party discovers that the information in his or her financial statement is incorrect or incomplete or there has been a material change to the information provided, that party must immediately serve and file the corrected information with documents substantiating this.
Rule 13(17) provides that if a party does not give information as required under this Rule, the court may:
- Dismiss the party’s case;
- Strike out any document filed by the party;
- Make a contempt order against that party;
- Order that any information that should have appeared on the statement may not be used by the party on the motion or at the trial;
- Make any other appropriate order.