Opinion Letters - Foreign Divorces
Collaborative Family Law
Separation and Divorce
The decision to end a spousal relationship is likely one of the most difficult and emotional decisions you will ever face. At this stressful and confusing time, many questions arise surrounding the separation process. If you need assistance, I will guide you through this process, answer your questions, and do my best to help you and your family transition into a new phase.
What does it mean to be separated? Do I need a divorce lawyer?
There is only one ground for divorce in Canada: a breakdown of the marriage. Marriage breakdown is determined in three ways: separation for at least 12 months, by cruelty, or by adultery. In the majority of cases, divorces are granted on the basis of the one year separation.
The separation period can begin to run as soon as the spouses no longer reside together and there is no possibility of reconciliation. It is not necessary to have a separation agreement to be legally separated. In some cases, the separation can occur while the spouses remain living in the same home. This is referred to as living “separate and apart”. This type of separation can be very difficult to navigate, and it is vital that you have the very best advice from a lawyer that you can trust to assist you.
It is also possible to end a marriage without ever obtaining a formal divorce. Many couples decide that it is sufficient to separate, and settle the issues between them on a final basis using a separation agreement. There can be some particular advantages to doing so. However, should one of the parties decide that he or she would like to remarry, then it will be necessary to obtain a formal divorce.
I have the experience you need to resolve basic or complex divorce proceedings. Family law is my primary area of practice and with over 15 years of legal experience, I have handled hundreds of separation and divorce cases. Whatever the circumstances, I am committed to helping you resolve your issues in the most efficient and cost-effective manner possible.
Decision-Making and Parenting Schedule
Some of the most stressful questions for families to resolve upon separation or divorce surround what will happen to the children going forward. Who will make decisions on a daily basis? Where will the children live following the separation? How will the children be affected? When you retain Parker Wallace Family Law to assist you with your child custody matter, you will have someone to answer these questions and provide you with careful advice and guidance. You can rest assured that your best interests, and those of your children, are being legally addressed so that you can focus your attention on your family.
At your initial consultation, we will discuss your circumstances and put forward a legal strategy that fulfills your needs and best serves the interests of your children.
Child support is determined by the Federal Child Support Guidelines. This legislation provides clarity on who must pay child support, how much child support must be paid, and for how long.
The basic amount of child support is set out in the tables of the Guidelines and is based on the income of the parent paying child support. The income of the parent receiving child support (generally, the parent with whom the child resides) is not taken into account in setting these basic payments. This can change, however, if the child resides more or less equal time with each parent. Child support payments are tax neutral: the party paying child support is unable to deduct the payments from income for the purposes of income tax. Similarly, the party receiving child support is not expected to include these payments in his or her income for tax purposes.
In addition to the basic amount of child support, an additional amount may be payable for the children’s “special or extraordinary” expenses. These expenses are set out in section 7 of the Guidelines and may include such expenses as daycare, post-secondary education expenses, and uninsured medical and dental expenses.
Are there any exceptions to the payment of child support?
Various issues may arise which can impact the general rules of child support as set out in the Guidelines and give rise to certain exceptions.
For instance, the determination of a payor’s income can be an issue, because income for child support purposes can include bonuses, stock options, expense accounts and benefits. In the case of someone who is self-employed, the ability to personally benefit from expenses paid by the company may also be taken into account.
Adjustments may be made to the basic child support amount in situations where there are shared parenting arrangements and the child resides with the payor parent for more than 40% of the time. In this circumstance, a payor parent may be able to argue that there should be a reduction, or even a ‘set-off’ in the child support payable, depending on the particular circumstances.
I have dealt with a wide range of cases including those with complex financial issues. I have the requisite knowledge and skills to ensure a fair child support arrangement for you and your family. Please feel free to contact me at 613-225-6411 or e-mail me at firstname.lastname@example.org to book a consultation to discuss your child support matter.
Married spouses and, in some cases, unmarried spouses can have the obligation to support one another financially following a separation. In the case of unmarried spouses, the obligation to pay spousal support arises once the parties have been in a relationship and cohabiting for a period of at least three years, or if they have resided together for at least one year and have a child together.
The amount and duration of spousal support, for both married and unmarried spouses, is discretionary and extremely nuanced. In making such a determination, the law takes into account many factors, including the financial need of the recipient, the ability to pay for the payor, and various circumstances of the relationship which may impact a spouse’s ability to generate an income from his or her own resources. It is therefore important to have a lawyer who understands the various factors involved in navigating the spousal support regime in Ontario, and who can guide you through the negotiation of spousal support agreements.
Division of Property
Upon separation, married spouses are entitled to an equalization of their net family property. This means they are entitled not to the division of the property itself, but to the equalization of the value of the property. The process involves the application of a specific calculation which is set out in detail in the Family Law Act.
Equalization results in one spouse (the one with the greater net family property) owing the other spouse a debt (equalization payment), which in most cases is equal to one half of the difference between the two net family property values. This equalization payment may amount to more or less than half of the other spouse’s total assets.
Unlike married spouses, unmarried spouses do not have the automatic right to equalization of net family property under the Family Law Act. That does not mean, however, that unmarried spouses do not have any property rights. The extent to which persons who are not married may assert a claim against one another with respect to property varies widely depending on the circumstances of their relationship and the property in question. These are complex issues and it is to your benefit to consult a lawyer to help you sort through them. Please feel free to contact me for a consultation to discuss these matters further.
Marriage Contracts and Cohabitation Agreements
Marriage Contracts (also known as prenuptial agreements) and Cohabitation Agreements are domestic contracts which couples can use to define, expand or limit their rights and obligations in the family law context. For example, a domestic contract can address obligations such as spousal support and property claims so that a couple may manage their affairs according to their own wishes and outside of the defined legislation.
Under the Family Law Act, there are certain requirements that must be met in order for a domestic contract to be valid. Many couples decide to draft their own agreements, using tools found online. Often, these agreements are not properly executed and end up being useless in a dispute. It is crucial that your domestic contract is properly drafted by a qualified family law lawyer who understands the formal requirements and can ensure that your contract is enforceable. I have the experience necessary to help you prepare and finalize a Marriage Contract or Cohabitation Agreement that reflects your intentions and wishes in the most efficient manner possible. If you have been presented with a draft agreement, it is important that you get legal advice, independent from your spouse, to ensure that your interests are protected.
For more information on domestic contracts, call 613-225-6411 or e-mail me at email@example.com to book a consultation.
Mediation is a client-centred process which aims to resolve a family law dispute with the help of a trained, neutral third party. The mediation process gives each person in a conflict a chance to tell their story, listen to the other person’s story and then, together, try to brainstorm creative solutions that meet both parties’ needs. It is the parties who come up with the solution, not the mediator, and not a judge. An agreement is only reached when both parties are satisfied with the solution. Mediation is completely voluntary and can be stopped at any time by either party or the mediator.
In my role as a mediator, I am a neutral party who will not “side” with either one of you. My job is to facilitate a discussion between the two of you to enable you to come to a resolution of your conflict. While I am trained as a lawyer, and will use those skills in providing you with information about the current state of the law, I cannot provide either party with any legal advice.
A major benefit to the mediation process is that no one is imposing a solution on you. It only works if each party genuinely wants to resolve the conflict using this process.
Mediations are usually “closed”. This means that the discussions which take place during the mediation process cannot later be used in court or arbitration documents. I cannot be called upon to testify if your matter ends up before a judge or arbitrator. Similarly, the notes that I take during the mediation sessions cannot be used in any future proceedings. This allows the parties the freedom to discuss issues honestly and to brainstorm creative solutions which might not be available to you in the litigation or arbitration process.
I am an accredited family mediator through the Ontario Association for Family Mediation, of which I am a member. Mediators can be accredited or non-accredited. The accreditation process requires additional skill development and training that is of benefit to mediation clients.
If you and your spouse would like to explore whether mediation is appropriate in your situation, and if you would like an alternative to court to resolve your dispute, please contact me for an intake appointment by phone at 613-225-6411 or by e-mail at firstname.lastname@example.org.
Collaborative Family Law – A Different Path to Separation and Divorce
Collaborative Family Law represents a shift away from highly contested court proceedings. The collaborative process does not establish, nor does it focus on, the positions of each party. Rather, the spouses and the lawyers commit to working in a cooperative manner to arrive at a creative, out-of-the-box solution to address the problems facing that particular family.
At the start of a Collaborative Family Law matter, both parties and their lawyers sign a contract which states that the parties will not commence court proceedings without first exhausting all avenues for an amicable resolution. The lawyers agree that they will not participate in any court proceedings (other than an uncontested divorce) on behalf of their clients at any time. This means that if negotiations break down, both spouses must retain new lawyers if either wants to start litigation. This provides an incentive for both spouses to remain within the collaborative process and focus on creatively solving their problems, without the threat of litigation hanging overhead.
Collaborative Family Law is a client-driven process. The clients control the agenda, with the assistance of their lawyers. Full financial information is exchanged, and the process involves a series of meetings with both lawyers and clients present. Also at the table, if necessary, are outside specialists such as financial planners, valuators and family relations specialists, who are jointly retained to help navigate particular issues that fall outside the scope of a lawyer’s advice. Even with these specialists involved, the cost to clients can be significantly less than the costs of traditional litigation.
More importantly, the avoidance of bitterness, hostility, rivalry and the ‘winner take all’ mentality can be priceless.
I am trained in Collaborative Family Law practice, and believe that this can offer a better solution for families than traditional litigation. Please contact me at 613-225-6411 or by e-mail at email@example.com to discuss whether Collaborative Family Law is right for you.