practicing in Association (not as Partners)
FAMILY LAW - Divorce, Separation, Custody, Property, Support, Mediation,etc.
Dr. Montgomery has been doing Family Law since Nov. 2006, has done over 185 cases
Litigation, Separation Agreements, Mediation, Simple and complex Divorces.
At a consultation Dr. Montgomery will explain in simple terms that you can understand:
LITIGATION: Dr. Montgomery has attended Family Court many times in Toronto (all three court houses), Oshawa (many times), also Brampton, Newmarket and Orangeville.
ALTERNATE DISPUTE RESOLUTION (ADR): Instead of expensive, time consuming and stressful litigation, meeting busy judges who are often impatient if not downright hostile, and have not had time to read your file, consider having the opposing lawyers try to negotiate a solution, or having us attempt to mediate a solution, or arbitrate it (like a private judge). You and your spouse or partner can go to mediation sessions and co-operate so that the mediator can come up with a "Memorandum of Understanding", or you can both have a lawyer to represent each of you at mediation sessions (five people in the room instead of three.) ADR is usually cheaper and faster, and unlike a judge's ruling you have direct input and veto power into the final outcome.
If you hire Dr. Montgomery as a mediator or Collaborative Lawyer you cannot later retain him as your legal counsel. Ideally and normally for mediation you and your partner would both be present at our office and Dr. Montgomery would not see you individually. However if you want to hire him as your ordinary lawyer (not as a mediator or collaborative lawyer) every bit of information is "privileged" and will only be disclosed where required by law (e.g. financial disclosure). So if you plan to hire Dr. Montgomery as your family lawyer you must never bring your partner to our office. With a degree in Psychology and having worked at two mental hospitals, Dr. Montgomery can often provide insights into clients' motives that accelerate the mediation process. (We can also refer you to licenced psychologists and counsellors and family mediators.)
Here are two links to websites that explain the difference between regular litigation, mediation, and collaborative family law: Ont. Fed. Collaborative Law (has an excellent table comparing collaboration versus litigation) or see Mediation v Collaborative Law
Your final Separation Agreement (S.A.) can be filed at a court to become a court order if desired, especially if it involves collecting periodic payments (child or spousal support) that you think you need the Ontario government to collect for you from your partner. This only works if the S.A. sets out a specific monthly payment and uses certain phrases; if it talks about lump sums, percentages, annual revisions or omits the special sentences, the government won't enforce it. If instead you litigate, and want the gov't to collect for you, there is a Support Deduction Order (SDO) issued at the end of each case, with the specific monthly payments set out; in fact if you and your partner do NOT want the government involved in collecting, you must both sign a joint withdrawal form, otherwise the SDO goes to the Ontario government (Family Responsibilties Office or "FRO") who will arrange for collecting from the payor or his employer. FRO can also garnishee a person's Canada Pension payments, Old Age Security, EI, and will certainly grab any tax refund before the person can get it. If you are the support payor and are in substantial arrears with FRO and (if they win a Default Hearing at court) they can take away your driver's licence, your passport, place a lien on your real estate, jail you for 6 months etc. If FRO knows that you have assets (you must fill out a FRO financial form which is similar to the court financial form) such as a bank account, RRSP or TFSA, they can issue a Direction to you to take the money out and give it to them (towards support payments due or overdue). So if you are a payor and having "issues" with FRO, or a recipient not getting support owed to you, contact us. Even if the payor moves to another province or a US state, FRO has reciprocal arrangments with them, albeit it can take many months to finally get justice.
An S.A. paves the way for a simple divorce (joint or uncontested). The terms of the S.A. can be copied directly into the divorce, but usually are left as a separate contract; either way this allows the divorce to proceed quickly. Judges don't like to allow divorces until all the issues listed in the first paragraph above have been settled via an Agreement. So you usually need to do all the hard work first and then get the divorce. However for couples with no significant assets or child issues, or who already have a S.A. that will stand up to judicial scrutiny, a simple divorce can be started.
We try to keep fees low compared to the competition by using modern electronics and software instead of a full time secretary. Some of our clients save money by doing their own photocopying instead of paying us 15 cents a page. That is fine with us (Most law firms would not allow that.) Many Toronto family lawyers even in solo or two person firms are charging up to $800 an hour! For work done by Dr. Montgomery the basic hourly fee is $350. Many of our clients work for employers on the EAP program or to Legal Shield getting a 25% discount coming to $255 an hour.
Consultations: Many clients are covered for a free half hour through their workplace Employee Assistance Plan (EAP). If not, you can either pay a flat $310 plus HST and then IF you hire me that is a credit to your account, so it becomes free. (If you don't hire me I keep the $310 to cover my time in the consultation.) (Most initial family law consultations take 90 minutes to two hours.)
Separation Agreements: We charge $350 per hour but most simple and medium complexity ones cost $1,350 to $1,600. (HST and copies, courier etc are extra). Other Separation Agreements are complex and can take months of negotiation and revising. (Beware of short Agreements such as sold in drug stores or stationery stores for about $15 - $20. These are only about 15 paragraphs long and mainly suitable for people with short marriages, little income or assets, no children etc. and they will not hold up if challenged in court years later. Rarely would our time for a Separation Agreement go above 12 hours but "rarely" does not mean "never". Sometimes one truculent party will haggle and hold things up for a long time. If no final agreement has been reached with the other party after 15 hours of my time the client and Dr. Montgomery discuss whether to stop work or continue and on what terms. Please note that cases involving spousal support and/or division of family property can take a lot of time and require use of special computer programs.
Above fees for Agreements do not include fee for "Certificate of Independent Legal Advice" if such is required. The lawyer's fee for such a certificate if he prepared the S.A. is free, if he did not draft most of the S.A. (you bring us one already prepared) it is $350.
Court: The lawyer's standard hourly rate for litigated cases is $350 (plus HST and disbursements). Please note that cases involving spousal support (alimony, maintenance) and division of family property can take a lot of time and require use of special computer programs by experienced lawyers.
Mediation: Clients have been very satisfied with Dr. Montgomery's mediations. It is usually cheaper and faster than litigation. For mediation the couple divide the hourly rate (e.g. 50-50 if they have about the same income, otherwise according to their incomes). Hourly rate is decided at the beginning via mediation among all three of us, depending on clients' incomes, complexity of case etc. Range is between $150 and $350 per hour (for both parties, not each). Usual fee where total gross family income is under $150,000 per annum is $150 per hour e.g. each person pays $75 per hour or if one has a good income and the other doesn't, pro rata per income e.g. one person pays $120 and the other $30 for each hour.
Uncontested divorce: For simple divorces (Uncontested or Joint, no issue regarding custody, access, property division, support etc.) where there are no issues locating or serving the other party, and you have enough info for me about yourself and your spouse to fill out the form, my fee is $850 and court fees and process serving etc are about $550. (total around $1400 - $1500 with HST) Any complications means my hourly rate of $350 gets charged on top of the $850 flat fee. e.g. seeking an order for substitute service, dispensing with service, will cost more. Beware of non-lawyers advertising "uncontested divorce" for a few hundred dollars. I investigated one that advertised "Divorce $200" using somone pretending to be a client and they charged her $200 just for a consultation to see if she "qualified" for a divorce. (Nearly everyone does.) It is impossible to provide a divorce certificate for $200 or $300 when the court fees are about $450 and there are process server fees and HST. Also beware of paralegals saying they can get you a divorce "severed from all collateral relief issues". In fact judges are very reluctant to sign these, especially where there is no formal Agreement for child support, and they usually want to see that property division (property includes all financial assets) and possible spousal support issues have been fully and formally addressed before granting a divorce. Any paralegal who tells you to just not mention these or say they have been settled or tells you to lie about children, assets, income etc is commiting serious infractions and is liable to be suspended.
Discounts: Many clients are on employer discount plans so check with your Personnel (Human Resources) office to see if there is any "EAP" or "Law Assist" program at your workplace. That gets you a free half hour consultation and 25% off my regular hourly rate of $350. (Discounted rate is $255.)
Justice Net cases: If you earn less than $60,000 per annum you may qualify for www.JusticeNet.ca deep discount rates. You must show Justice Net staff your last two years' Canada Revenue Notice of Assessment and also if it is between July 1st and Dec 31, evidence of your current year's income. Even if your income is low enough to qualify for Justice Net, we will not take the case if you have assets of $100,000 or more (e.g. savings, RRSPs, private pensions, own a house with $100k or more equity etc.) or if litigation will be involved and the Justice Net fee is below $150 per hour. Here is the link to the Justice Net fee table: https://www.justicenet.ca/fee-schedule-2/
Legal Aid: The lawyer only accepts a very few family law cases per year, but not Childrens Aid Society (child protection) cases.
Family Law Disbursements are necessary expenses incurred for your case such as subcontracted services (e.g. process servers, pension or house appraisers, psychologists), court fees, translations, faxes, photocopies, etc. For litigation there may be a fee to rent the use of an Offical Examiner's Office and their official reporter.
Dr. Montgomery has had extensive training in MEDIATION (Law School, Ontario Crown Attorneys, Bar Admission Course) and founded Peoples' Mediation Centre Inc. in Burnaby (Vancouver) in 1986. He can mediate all types of disputes; e.g. landlord-tenant, commercial, as well as matrimonial. He is also qualified to perform ARBITRATION and MED-ARB (arbitration following unsuccessful mediation). (See certificate below re commercial arbitration). Mediation and arbitration fees are $180 per hour.
FAQs: FREQUENTLY ASKED QUESTIONS AND ANSWERS Ontario Family Law
THE FOLLOWING IS NOT INTENDED AS LEGAL ADVICE AND IS ONLY MY OWN OPINION AND INTERPRETATION OF THE LAW, FOR GENERAL INFORMATION AND PUBLIC EDUCATION ONLY. THE FACTS OF YOUR CASE MAY NOT APPLY TO ANY EXAMPLES CITED HERE. CONSULT AN EXPERIENCED FAMILY LAWYER. In this, FLA means “Family Law Act”, MH means Matrimonial Home, SA means “Separation Agreement”, “mtg” means “mortgage”, NFP means “Net Family Property”, ENFP means the Equalization of the NFP, V date means the valuation or separation date, HELOC is a Home Equity Line of Credit and SS is “Spousal Support” (formerly called alimony or maintenance). The first and best place to start is with the Questions and Answers on the Ontario government’s Attorney General website under Family Law:
1. What is ADR?
ANSWER: ADR stands for Alternate Dispute Resolution, which is any form of trying to resolve the issues other than litigating in court, usually it means negotiation, mediation, in the criminal context it is called “diversion”
2. What is difference between mediation and arbitration?
ANSWER: Mediation is a mixture of negotiation combined with active listening and bargaining and a bit of counseling. Arbitration is deciding, like a private court of judge. It is adjudication by someone who is not in a court, commission, tribunal agency or board.
3. Is it better to negotiate an out of court settlement or to go to court and litigate?
ANSWER: Usually it is better to avoid court for three reasons: a) it is expensive to pay legal fees, b) is it a slow process, each court appearance is about three months apart and there can be many c) often the judges have not read the materials or are in a bad mood and are always pressed for time, so one’s efforts are sometimes wasted.
Mediation is cheaper, can be faster, and the mediator will become very familiar you’re your case. However if one or both parties will not participate sincerely, genuinely and candidly it is a complete waste of time and effort. In such cases litigation is necessary.
4. What is a pre-nup?
ANSWER: In Ontario it is called a marriage contract, costs at least $1000 but if carefully prepared by lawyers can save huge amounts of money when you split up.
5. Does one person have to move out to start a separation?
ANSWER: No, you can be “separated under the same roof”. Many people cannot afford to move out so they keep living in the same house or condominium but are considered separated.
6. So how does a court decide is a couple are separated if they are still at the same address? Is it based on having sexual intercourse?
ANSWER: the courts look at many factors including having sex, e.g. what are the sleeping arrangements, e.g. separate beds, the cooking or eating arrangements, the child care arrangements, the laundry arrangements the recreation and entertainment and socializing, whether vacations are joint or separate, affidavits from friends and relatives, whether people list themselves as married, single or separated on their income tax returns. No one of these factors is determinative, the courts take a holistic view.
7. What does "legally separated" mean?
ANSWER: Many lawyers say there is no such thing, but it means the couple are separated as defined in Qs 5 and 6 above, (some would argue for at least 12 months) have signed a Separation Agreement and filing tax returns as “separated” or "single".
8. How much does a Separation Agreement cost?
ANSWER: you can buy one at a stationery store or some drug stores for about $40 but if there are children, financial assets, or real estate involved, or your each have incomes that differ by 15% or more , or it is a marriage of over two or three years, it is much better to hire a lawyer. Courts tend to treat the store bought ones as worthless, especially if lawyers have not reviewed them and signed them. The cost then varies with the complexity of your and your partners’ life in terms of children, finances, income, debts, length of marriage, matrimonial home payments and value etc. plus how much time the two lawyers spend drafting and negotiation back and forth. Count on a least $1,500 and in complex cases or when there is a lot of back and forth negotiation, double or even triple that. It is still much better than litigation. Preparing the first set of court documents cans cost up to $3500 to $4000 if your finances are complex and then your first conference at the court will cost you another $3500 to $4000 to prepare for and attend.
9. What is the V date that family lawyers keep talking about and is in the forms?
ANSWER: the date you separated (for longer than 90 days).
10. What if we tried getting back together and it did not work and we re-separated?
ANSWER: Attempts to reconcile of up to 90 days do not affect the V date, but if you get back together for over 90 days then you have started a new relationship and there will be a new, later V date. Getting back together for over 90 days often cancels the legal effect of any Separation agreement, except for any real property transfers, they can't be undone. Under the Divorce Act subsection 8(3)(b)(ii) the required twelve months of separation will not be affected if you try to reconcile and re-co-habit for up to 90 days but if you get back together longer than that the one year clock starts all over again.
11. On separation, should I cancel joint accounts, joint credit cards, joint Lines of Credit, joint debts?
ANSWER; Yes, providing that does not result in a default on mortgage payments on the matrimonial home, or damage to home due to cancelled utilities, or deprivation of necessities to your spouse or children, or damage to your own or spouse’s credit rating. If you normally pay half or all of the mortgage, property taxes and house insurance and you move out, a court may insist that you keep paying so as not to jeopardize your spouse’s family law interest in the house, not to mention your own credit rating and your own interest in the house. If the mtg. is not paid the bank may eventually sell it under a Power of Sale. The good news is that if you have to pay to keep the house up plus rent accommodation for your self you may be able to get a court to order the person who is staying in the house to pay some or all of your rent, This is called Occupancy Rent. Note “may” not “will”.
12. I have heard about occupancy rent. Is it true that after I left the matrimonial home I can force my spouse who is still there to pay me what I have been spending on rent?
ANSWER: “No”, that is not how Occupancy Rent works, it is a rare remedy anyway. See Q 56 below.
13. If I live with someone without marrying them, and then we separate, do we have to divide all our property and split the joint assets?
ANSWER: in Ontario, basically “No” but there are exceptions that can be argued, namely a Joint Family venture or a constructive Trust. Some lawyers give clients the impression that these exceptions are common and easy to get. They are not.
The answer is always “Yes” when it comes to the Canada Pension Plan. Either party can apply for what is called a CPP split and it counts years of co-habitation as well as years of marriage. The Canada Pension Plan (CPP) contributions you and your spouse or common-law partner made during the time you lived together can be equally divided after a divorce or separation. This is called credit splitting. Credits can be divided even if one spouse or common-law partner did not make contributions to the CPP. Credit splitting may help you qualify for benefits and can affect the amount of any current or future benefits under the CPP program for both you and your former spouse or common-law partner. Most lawyers do not know much about it as it is all done by the federal government and we cannot influence it and so we do not even include the CPP as an asset when we prepare your financial forms. Just go to http://www.esdc.gc.ca/en/cpp/credit_splitting.pageand you will know as much as most divorce lawyers. I do know a CPP expert who is not a lawyer and who provides me with special advice regarding the CPP.
14. How does Spousal Support (also called Maintenance or Alimony) work? How is it calculated?
ANSWER: In Ontario it is called Spousal Support. See sec. 15.2 of the Divorce Act and the long, complex guidelines online at
The actual calculations use a special computer program that uses “iterations” that lawyers must buy. It is not something that a simple calculator can calculate.
15. Where can I get an estimated figure for free without hiring a lawyer?
ANSWER: Online at www.mysupportcalculator.ca but see below.
16. So I can rely on those figures and count on the court awarding that amount?
ANSWER: absolutely not, it depends on several other factors including eligibility or entitlement to received support(often overlooked) and how carefully the user inputs data into the program. The free online program may not be accurate for complicated cases and it is best to have an experienced divorce lawyer do the calculations using the program on his or her own computer.
17. If I live with someone without marrying them, and then we separate, might I be liable to have to pay them spousal support/ maintenance/ alimony?
ANSWER: Under s. 2 and 15 of the Divorce Act a spouse is someone who is married but in most provinces there are family law statutes that give some support rights to commonlaw couples who have lived together for a year or more. The period of co-habitation that hooks you into spousal support varies across the provinces. So in Ontario the answer is normally “No” if you co-habit for under three years, but”Yes” if more; the Family Law Act at section 1 defines spouses as being married but later at sec. 29 defines “spouse” as including persons who have co-habited continuously for three years or more. It goes on to include as spouses two person who are in relationship of some permanence if they are the parents of a child (natural or adopted). Sec. 30 then says each spouse has an obligation to support the other based on their needs and the first spouse’s capability of doing so. So there is supposed to be a “needs v. means (ability)” test.
18. Are there any time deadlines that apply to applying for spousal support?
ANSWER: Claims may be barred by passage of time if court proceedings are not started within two years after you and you spouse stopped living together under the Family Law Act, but (for marriages) not necessarily under the Divorce Act if not claimed in the original divorce proceedings, but that delays in claiming support are held against the tardy claimant; therefore it is in your best interest to commence claims for spousal support as soon as possible. Based on my review of the caselaw the courts generally will not allow a claim for spousal support to be retroactive for more than a four year period.
19. How long does a family court case usually take?
ANSWER: It varies from a few months to about two years, it just depends on the complexity of the facts, the number and complexity of legal issues, how long it takes to get complete and accurate financial disclosure and documents, whether the parties are willing to negotiate and compromise are take firm stances and want to fight hard, and on the judge.
20. How much does it cost?
ANSWER: It depends on the lawyer’s hourly rate, how long the judge talks, the judge’s attitude, the complexity of the facts, the number and complexity of legal issues, how long it takes to get complete and accurate financial disclosure and documents, whether the parties are willing to negotiate and compromise are take firm stances and want to fight hard.
21. What is a "retainer"?
ANSWER: A deposit to your Trust Account at the lawyer’s bank. This is needed to start the case and it must be replenished when it gets low, so the lawyer has enough money to rely on to do the work and pay the expenses.
22. In the GTA, what is the typical retainer fee (deposit required) by a typical family lawyer to start a court case?
ANSWER: $3500 to $5000
23. How much an hour do experienced family lawyers in the GTA charge?
ANSWER: $250 (or less in some situations) to $500 (or more) + HST + disbursements. The average seesm to be around $350.
24. What are disbursements?
ANSWER: Expenses such as couriers, process servers, photocopies, fax charges, translation, court fees etc.
25. Can I get a free lawyer thru Legal Aid?
ANSWER: You have to apply to them. They have complex rules, depends on the legal issue and your income and dependents and whether you own real estate. Basically if you earn much over $25,000 you are too rich) To apply for Legal Aid help in over 200 languages telephone 1-800-668-8258 toll-free (or 416-979-1446 in Toronto) Hours: Monday to Friday, 8:00 a.m. – 5:00 p.m. Best time to call: 9 to 10 a.m.
26. What if I go to court with no lawyer, will the court provide me one for free?
ANSWER: It depends on your income etc according to the Legal Aid rules. Yes, Duty Counsel will represent people who qualify for Legal Aid. If they are too rich for Legal Aid, you only get about 20 minutes of general information from the Duty Counsel or the FLIC. So some time will be spent at the beginning reviewing your finances to see if you qualify for Legal Aid or not.
27. What is the FLIC?
ANSWER: Family Law Information Counsel. They are located at Family courts to give free information to people who do not qualify for a Legal Aid lawyer or Duty Counsel. FLIC only gives 20-30 minutes of basic information and will not give advice on your case or enter the court room.
28. Do I have to pay child support if the mother is living with the child and I am not, even if I only lived with the mother a short time, or never?
ANSWER: Yes, if it is your child you must pay child support. Even if the birth was due to a so-called "one night stand”. No exceptions.
29. What if the child’s mother denies me access?
ANSWER: you must pay child support regardless of whether you ever see the child or not, but as a father you have a right to see the child unless your have a proven violence or sexual violence or drug or alcohol problem.
30. Do I have to pay child support if the kid was not mine, was from a previous father?
ANSWER:Yes, both under the Divorce Act (for married parents)if you stood in the place of a parent (in loco parentis) and in Ontario law if you and the child had a parent child relationship or to use the legal phrase had a “settled intention” to treat them as your biological child. In regards to the obligation, the Divorce Act at section 2(1)(b) defines a child as being “of the marriage” which must mean a biological child but in subs. 2(2) which must have been added later refers back to (1) and states that such a child includes (a) any child for whom they [spouses or former spouses] both stand in the place of the parents and (b) "any child of whom one is the parent and for whom the other stands in the place of a parent." The Divorce Act at s. 15.1 requires support for those children.
The Family Law Act at s. 31(1) also requires child support and the FLA at sec. 1 says “child includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family." Sec. 31 of the FLA defines dependent child thusly:
31. (1) Every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, to the extent that the parent is capable of doing so. (2) The obligation under subsection (1) does not extend to a child who is sixteen years of age or older and has withdrawn from parental control.
FLA sec. 1 says “child includes a person whom a parent has demonstrated a settled intention to treat as a child of his or her family”. There is a lot of caselaw regarding “in place of a parent” (step parent or in Latin “in loco parentis”) and re “settled intention to treat”, The leading case is Chartier v. Chartier 1999 CanLII 707 (SCC),  1 S.C.R. 242 at paras. 38 - 40. To quote from para. 39: “The relevant factors in defining the parental relationship include, but are not limited to, whether the child participates in the extended family in the same way as would a biological child; whether the person provides financially for the child (depending on ability to pay); whether the person disciplines the child as a parent; whether the person represents to the child, the family, the world, either explicitly or implicitly, that he or she is responsible as a parent to the child; the nature or existence of the child’s relationship with the absent biological parent. The manifestation of the intention of the step-parent cannot be qualified as to duration, or be otherwise made conditional or qualified, even if this intention is manifested expressly. “ Pursuant to Chartier, every case is dealt with on its facts and the courts look at various factors including the quality of the relationship and the time duration of it.
31. How is child support calculated in Canada?
ANSWER: From a look up table based on province, number of children, and the payor’s income according to line 150 of his NOA. (see link below) Income is gross income except for the self-employed where it is basically net. There is no use arguing with your lawyer or your spouse or the judge as this is what the law says, even if you think it is unfair that it is based on your line 150 income on your tax form. However if you think it is unfair in that you can't afford to pay according to what the Table says, see Q. 79 below.
32. What is an NOA?
ANSWER: A Canada Revenue Agency Notice of Assessment that you get a short time after you file your income tax return. This is a crucial document for family law in Canada so always keep them and do not throw them out. So many clients have lost them and it takes a few weeks to get replacements from the CRA.
33. What if the payor spouse is self-employed and has no fixed salary? What if they work occasionally or seasonally? Can they avoid paying child support?
ANSWER: By law anyone earning any income in Canada must file a tax return. Being self-employed or on a cash basis is no excuse. If you have a proprietorship or a profession (un-incorporated business) there is a form T2125 you use in the tax returns. If you have a business be it a proprietorship or a partnership or a corporation that lost money or had no activity you still must file the tax return.
34. What if the payor spouse’s income bounces up and down due to being laid off, change of jobs, seasonal work, being a commissioned salesman?
ANSWER: Courts usually take the average of the last three tax years, but I have seen a feminist judge choose the highest year for a male client.
35. Does child support automatically cease when a child turns 18?
ANSWER: No, child support is due so long as the child is a dependent. “Child” has different meanings in the federal Divorce Act and in the Ontario Family Law act. Sec. 1 of the Divorce Act defines “spouses” as people who are married to each other and “child” as a child of two spouses or former spouses who at the material time is under the age of majority [18 in Ontario] and under their charge or is over the age of majority but has not withdrawn from their charge be reason of illness, disability, or other causes. Sec. 1 of the FLA defines spouses as being married but then at sec. 31 it says every parent has an obligation to provide support for his or her unmarried child who is a minor or is enrolled in a full time program of education, but that the obligation does not extend to a child who is 16 or more AND has withdrawn from parental control.
36. What is meant by “custodial parent” and ”access parent”?
ANSWER: The custodial parent is the one who has the children more than half the time at their home; the access parent is the one who has care of the children less than half the time and the kids do not officially live at their residence. In Ontario law “half” is not necessarily 50%, it can be as low as just over 40% or as high as just under 60%. The Court order or Separation Agreement determines who is the custodial and who is the access parent. A joint or shared parenting agreement means each parent has care of the child or children as much as the other, give or take up to 19.9%. Incidentally in Ontario sometimes grandparents can be the custodial parents, e.g. where the actual parent is a drug addict, in jail for a long term or has some handicap or disability that prevents them from being a good parent. More commonly grandparents can seek access (visitation time) with their grandchildren, especially where there is a good relationship and there was a pattern of spending quality time with the grandparents before the couple separated .
37. What is split custody?
ANSWER: One parent is the custodial parent for one child and the other parent is the primary caregiver for another child. Generally this is only done where the children are old enough to “choose” which parent they want to live with. In regard to who pays how much, if both parties have the same income there would be nothing owed to each other for basic child support; otherwise (and if there are section 7 expenses) the Child Support Guidelines provide for a set off.
“8 Where each spouse has custody of one or more children, the amount of a child support order is the difference between the amount that each spouse would otherwise pay if a child support order were sought against each of the spouses.”
38. What does “custody” mean?
ANSWER: As will be seen this is confusing. The term is not defined in the Family Law Act of Ontario. The Divorce Act (Canada) sec. 2 states:
custody includes care, upbringing and any other incident of custody
The Child Support Guidelines at sec. 9 refer to “physical custody” which implies that “custody” refers to decision making.
So “custody” refers to which parent or parents make the key decisions such as about health, education and religion, but it also means who is the primary caregiver and who is the parent where the kids sped most of their time with. The law starts with the premise that custody in regard to decisions is to be shared. (Joint Custody is assumed.) To get sole custody regarding decision-making one must convince a court that the other parent is too irresponsible or dangerous or incompetent (or has pretty much disappeared) to share these important decisions.
According to the Canadian Department of Justice website at: http://www.justice.gc.ca/eng/rp-pr/fl-lf/parent/2004_3/term.html
Child Custody Arrangements: Their Characteristics and Outcomes
2. ISSUES RELATED TO TERMINOLOGY
‘Terminological issues abound in the research literature on custody arrangements after separation and divorce.’ This document goes on to say:
The following terms are used in the research literature to describe shared custody: shared parenting, dual parenting, dual residential placement or dual residence, joint physical custody, time-sharing and co-parenting. In Canada, shared custody is defined in the 1997 Federal Child Support Guidelines under the Divorce Act as an arrangement in which the children spend a minimum of 40 percent of the time living with each parent.
In the United States, joint physical custody is the most common term for shared custody. In some studies, especially in earlier work, researchers do not clearly distinguish between joint legal and joint physical custody; joint legal custody is sometimes assumed to be the same as joint physical custody. Joint legal custody is defined as an arrangement in which the parents share responsibility for important decisions in their children's lives (such as those surrounding medical treatment and schooling) with no implications for the residential placement of the child.
Unless otherwise specified, this report uses the terms shared custody and joint physical custody to mean arrangements in which the parents share the physical custody of the children and the children have two residences. In the majority of research reports, the amount of time spent by the children in the two residences is not specified. In addition, not all research on shared parenting or co-parenting can be assumed to describe arrangements that closely resemble shared custody. These terms are used much more loosely than is shared custody in the Federal Child Support Guidelines. In fact, what is called shared custody, shared parenting or co-parenting in the literature is often what in Canada would be called sole custody with frequent access.
39. What is the usual access schedule of a non-custodial parent?
ANSWER: Every other weekend plus one weekday evening (usually Wednesday), or alternate weekends plus one weekday evening during the weeks there is no weekend access (overnight on a weekday if the child is old enough and the parent is able to take them to school the next morning).
40. What is the FRO I keep hearing about?
ANSWER: The FRO is the Ontario Family Responsibility Office of the Ministry of Community and Social Services. They are the agency that enforces child and spousal support when such a task is assigned to them. In simple terms they are the people who collect money from child support payors including "deadbeat Dads”. By law, all Ontario support orders are to be enforced by FRO unless both parties sign a FRO withdrawal form at the end of the court sitting (or later). If there is no court order, you can take your Separation Agreement to a family court and sign a short affidavit stating that you want the court to send the terms of the agreement to FRO for enforcement and that will happen.
41. Can FRO really put people in jail for 6 months for not paying child support?
ANSWER: Yes, I have had clients who spent six months in a provincial prison. FRO can also revoke your driver’s licence, pilot’s licence, hunting licence and passport.
42. How often does FRO remove the drivers licence from “Deadbeat Dads”?
ANSWER: Very often, if the arrears are substantial and the payor cannot convince FRO that he is going to start to pay it off or that he has started a motion to change the support order.
43. What is a “refraining order”?
ANSWER: This is a court order telling FRO not to revoke a driver’s licence or other type of Ontario licence or Canadian Passport.
44. What are "section 7 special and extraordinary expenses", how are they different from the child support amount you just explained?
ANSWER: Section 7 “extras” include necessary medical and visual and audial and dental and psychological care that is not covered by insurance. It also covers daycare when necessary for the parent to rely on it so as to work or attend school. It also covers college and university costs for a dependent child which are not covered by other income such as student loans, grants and earnings from summer and part-time and co-op jobs. It may cover things such as sports and athletics, music or other art courses, etc. but only where the child shows unusual talent or where the child was getting those courses prior to separation and the parents can still afford to pay for them and . Ditto for private or religious schooling. It may cover other expenses, consult a lawyer. Do not assume that the access parent has to reimburse the custodial parent for any portion of these expenses. If these extras are not specified in a court order or separation agreement, the non-custodial parent probably does not have to pay any part of them, although they are part of the federal Child Support Guidelines which apply to all the provinces and should be abided by. Here are the actual words from the Guidelines:
7 (1) In a child support order the court may, on either spouse’s request, provide for an amount to cover all or any portion of the following expenses, which expenses may be estimated, taking into account the necessity of the expense in relation to the child’s best interests and the reasonableness of the expense in relation to the means of the spouses and those of the child and to the family’s spending pattern prior to the separation:
45. What percent of section 7 special and extraordinary expenses does the access parent have to pay for?
ANSWER: The percentage is pro rated after a calculation of both parents’ gross incomes (or net in the case of self-employed). For example if the monthly sec. 7 expenses total $1,300 and after insurance or other benefits there is still $1,000 owed, the custodial parent earns $30,000 per annum and the access parent earns $70,000 a year, the access parent has to pay the other one 70% or $700 each month. That is assuming the custodial parent has paid for the expenses and provides a proper receipt to the access parent. The access parent could instead pay his 70% directly to the service provider if he thinks the mother will not spend the money wisely.
46. How does the division of assets work? Do we divide all our assets in half?
ANSWER: In Ontario you do not simply look at each item and divided the value in half, there is a formula set out in sec. 5 of the Family Law Act. Each spouse is entitled to half the difference between the two parties’ Net Family Property (NFP), so the one with the greater NFP has to make an equalization payment to the relatively poorer one . NFP is not simply one’s current net worth. This formula is easier to explain in a face to face consultation. The matrimonial home is on the one hand part of the overall equalization formula (ENFP) but on the other hand is treated separately. Each spouse is entitled to half of the increase in equity between the M date and V date.
47. Are there any time deadlines regarding the division of family assets?
ANSWER: Any claims you may have to a division of family property under the Family Law Act may be barred by the passage of time if you do not start court proceedings within six years after the Separation date, or within two years of a divorce, or six months of your spouse’s death, whichever occurs first (Family Law Act subsection 7(3))
48. Does “property” on the Ontario Form 13 and 13.1 financial forms mean real estate?
ANSWER: Yes but it also includes financial assets such as bank accounts, stocks and bonds, private pensions, RRSPS? For lawyers “property” means any thing which has a value, and real property is houses, condominiums, cottages and buildings.
49. Do I have to get my private pension valued or assessed? If so, how do I do it?
ANSWER: The basic answer is “Yes”. Most pension plans (excluding the CPP) held by an Ontario resident whether private or not, whether shared with a private or government employer or crown corporation, have to be assessed or valued. A private pension plan that is registered with the Canadian government (RRSP) has to be valued. For plans that come under the Pension Benefits Act (PBA) of Ontario, the Human Resources department of the employer will value it for “marriage breakdown purposes”. They usually charge six hundred dollars + HST, and both parties must fill in three or four FSCO (Financial Service Commission of Ontario) forms first. One such form is mentioned in the next Question. It takes a few weeks for the calculations to be done. Your lawyer can assist with getting this process in place. If the plan is the Defined Contributions type then the calculation is a lot simpler and the plan administrator can provide the sum of contributions made during the marriage (or date of co-habitation, whichever came earlier) up to V date and then it is a matter of estimating how much contributions will have been made at time of retirement. Of course all these valuations have to assume when the worker will retire, and how much they (and employer if applicable) will be contributing until then, and this may not turn out to be accurate years later. There is also the matter of income tax on the plan, and it is very hard to estimate what the tax rate will be when the plan starts to pay out on retirement (unless it is a TFSA) Thus pension plan valuation is a very tricky task and must be left to professionals. If the plan is a federal one that is not under the PBA (e.g. Air Canada, major banks, Bell Canada and the gov’t employee Superannuation) the HR staff may not know how to do it (Canada Post ones in Ontario do) and you need to hire an actuary to value it. I work with one of the very best, here in Toronto. Also if it is your own plan with no employer contributions or a non-federally-registered RSP, RCA, SERP, partnership agreement, etc. you need to hire an actuary. If you want to get an idea of how tricky it is just deciding “where to go” let alone the “dark art or science” of actually trying to value the plan for marriage breakup purposes, go to www.dilkesjeffery.com . Never accept or even spend a moment considering a figure that your spouse came up with by themselves or one done by an accountant who is not trained in actuary work and with no experience in the PBA scheme. Many clients show me a statement of their current pension benefits and think that will suffice, and save them $678. That piece of paper useless for valuation.
50. Should I remove my spouse as the survivor from my private workplace pension plan?
ANSWER: If you want. (It may be automatic once you divorce, check with your employer, read the plan.) In order to release my spouse from a survivor benefits under Ontario pension plans governed by the Pension Benefits Act, a term in a Separation agreement does not suffice, and it is necessary to also execute a Form 3 “Waiver of Joint and Survivor Pension” in order to release survivorship benefits (not possible if a pension is already being paid out, or – technically - will start to be paid out within twelve months).
51. How are RRSP (Registered Retirement Savings Plan) income tax aspects handled?
ANSWER: Usually when lawyers put the value of the RRSP in the financial statements they deduct at least 25% because this is the minimum that the CRA will withhold at pay our time. It can be very tricky (and expensive if a tax accountant or actuary is hired) to figure out what the actual tax rate will be in the future when the plan holder retires or cashes it in early. Any percentage will be a rough estimate and this figure can cause fights between the two lawyers.
52. What is an RRSP rollover?
ANSWER: When one spouse owes the other a lot of money in an equalization of net family property, instead of paying him or her actual cash, the payor can transfer or “roll over” that amount from his or her RRSP, and the money is not taxable to the recipient. Check with your bank or other financial institution for details. The same may be possible with your share of your spouse’s other registered retirement plans. This would be worked out between the plan administrator, an actuary who has been hired by the lawyer, and the lawyer. There is also an FSCO form and CRA form T2220 to be filled out.
53. Does my spouse get half my Canada Pension Plan?
ANSWER: They get some of it, according to a formula based on how long you co-baited and how much your plan is worth. If they apply no one can stop them. Either party can apply for what is called a CPP split or DUPE (division of pensionable earnings) and it counts years of co-habitation as well as years of marriage. To quote from the government website:”The Canada Pension Plan (CPP) contributions you and your spouse or common-law partner made during the time you lived together can be equally divided after a divorce or separation. This is called credit splitting. Credits can be divided even if one spouse or common-law partner did not make contributions to the CPP. Credit splitting may help you qualify for benefits and can affect the amount of any current or future benefits under the CPP program for both you and your former spouse or common-law partner.” Lawyers do not know much about it as they don’t need to know as it is all done by the federal government and we cannot influence it, and so we do not even include the CPP as an asset when we prepare your financial forms. Just go to http://www.esdc.gc.ca/en/cpp/credit_splitting.page and you will know as much as most divorce lawyers. I have access to a CPP expert (not a lawyer) who provides me with special advice regarding the CPP.
54. Can we contract out of the CPP split by a Separation Agreement?
ANSWER: I have seen this is SA’s prepared by other lawyers, and lawyers disagree on this. My opinion is that you could both formally agree not to apply and that would be a contract; but if either breaks this contract and applies for the CPP split, that application is perfectly legal and so the Separation Agreement will almost certainly be useless to try to stop them. In other words the contract may not be binding as it goes against a legal right, a statutory benefit. (On the other hand SA’s also often waive full financial disclosure which is required by law, and possible support and are valid unless and until overturned by a court.) It makes sense to use the government website or a CPP expert to see how much money is at stake before spending a lot of time arguing about it.
55. If my name is not in the deed or title to our matrimonial home and my spouse assaults me or threatens to kill me, can I get him kicked out of the house or condo and live there by myself?
ANSWER: ”Yes”, whether a spouse is on title or not does not affect his or her right to exclusive possession under Ontario Family Law; the police usually tell the beater to stay away for a day or so but you can get apply for a family a court order for exclusive possession, and before that if the beater is found guilty of assault or accepts a Peace Bond the terms of that sentence or the probation terms or the peace bond or the bail terms very often prevent them from entering the house. In fact these criminal court terms are often so restrictive that it create problems for us family lawyers because they often mean that the beater cannot be in the family court with the their spouse or talk to them at the court to negotiate a settlement, or have access to the children even when the spouse in the house wants that, so we often have to tell them to ask their criminal lawyer to try to vary the terms to allow family court appearances and to be able to pick up and drop off the children for access, often using a third party.
56. If I have to leave the home to avoid the stress and arguments and risk of assaults, a) does this mean I have abandoned my right to my share of the value of the house, or b) have I abandoned my right to see my kids? And (c) if I have to leave and rent elsewhere, can I claim Occupancy (Occupation) Rent from the stay-at-home spouse?
ANSWER: For a) No, not at all, unless you simply disappear for months and do not have a lawyer contact your partner who is still at home. No matter how long you stay away it will not affect your right to the division of net family property (as it was on V date) which includes a share of the matrimonial home (MH). However there is a very good chance that the spouse who stays in the house can get a temporary court order for “exclusive possession”. (Possession does not mean ownership; it means the right of the remaining party to live there alone and you as the absent party cannot stay there so long as the order is in place, even if your are “on title” and own half the home.) If the home is later sold you share the sale date net profit (equity) with the partner who stayed there, less that they paid to keep the house during your absence. I do not know how this myth got started, maybe it is the law somewhere in the US but for b) if you fail to see your kids for some time, when the custody battle comes to court the other spouse can make a good argument that you really should not have much or any access to them as your behaviour showed you had no real interest in them. Often too, kids do not have any desire to spend time with a parent who abandoned them for some time. For a child a few months is a long time and a year is very long. There is the slight possibility you could claim occupancy rent (also called occupation rent) if you were on title as a co-owner, being half the value the house or condo could be rented out for. The idea is that the spouse who stays in the house is getting the use of the whole house or condo but only owns half of it so the other should be compensated, as if the one now in possession and solely occupying the house was renting the other half from the absent spouse; hence the term “occupancy rent�. But this is offset by fact that the occupier is paying the mortgage (if any) on the whole house and is paying all the upkeep and tax and insurance and heating and electricity etc. So the occupier should pay the vacater half of what the house could be rented out for each month, less the cost of maintaining that half - mortgage, insurance, taxes, but probably not utilities although it could be argued that not heating the house would cause damage during winter. It is debatable whether credit should be given for the interest on the mortgage payments. Some lawyers say “no”. If the costs are the same or more than the hypothetical rent then there is no theoretical rental profit to pay the absent spouse; otherwise he/she is entitled to the “profit” e.g. house could rent for $2k, then rent of half is $1k, monthly cost of that $1k is $800, so the occupier should pay the other spouse $200 per month. It is rare to have to pay out or to receive occupancy rent. When it is awarded it is part of a trial decision, not something that is decided early in a case. If the house appreciated in value after V date and was sold and the absentee spouse who paid nothing (or less than half the expenses) after V date got half the equity, the stay-at-home occupier spouse would argue that it was "unjust enrichment" of the absentee spouse. Any occupancy rent paid to the absent one should arguably be added to the amount of "unjust enrichment". I have been told that often judges will decide that instead of awarding occupancy rent, since the absentee spouse got the benefit of up to half the increase in equity, (depending on how much they contributed to the house after vacating) so the judges simply offset the one against the other in one simple sentence. Often the counterargument used against the “unjust enrichment” is a “constructive trust” argument. This is common when the couple are not married but have co-habited for at least several years and the MH is owned by one of them. Again the more precise amount of occupancy rent is what half of the property could be rented out for, less half of the expense the spouse who stayed at home was paying , e.g. mortgage, tax, insurance during that time. If the facts differ and the absentee spouse keeps paying their share (about half to keep it simple) of mortgage, insurance, taxes and essential repairs, they are entitled to half of the increase in value since V date (with no deduction for what the occupier paid). Often the couple split the sale costs, e.g. realtor, lawyer etc.
57. I left the home over a year ago and the value of it has gone up a lot since then. My spouse who stayed in the home paid for the mortgage and insurance and property taxes after I left. When it comes to dividing the family assets, can I get half of the increased value of the home? ANSWER: See above. It depends on how much you contributed to the house during your absence, whether you received or get credit or unpaid Occupancy Rent, why you left and other factors .
58. If I paid more into the house than my spouse do I get to keep more than 50%?
ANSWER: Not usually. It is hard to convince a court that you deserve more than half. Your lawyer will advise you whether it is worth trying. The mere fact that one person paid more than half the down payment or mortgage is not good enough. In older times the husband paid for all of the house and the wife paid nothing and she still gets half the increase in equity, so nowadays I often see women who had paid for most or all of the house but the husband still gets 50%, except for special cases. Here is part of what section 5, subsection 6 of the FLA says:
(6) The court may award a spouse an amount that is more or less than half the difference between the net family properties if the court is of the opinion that equalizing the net family properties would be unconscionable, having regard to,
(a) a spouse’s failure to disclose to the other spouse debts or other liabilities existing at the date of the marriage;
(b) the fact that debts or other liabilities claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith;
(c) the part of a spouse’s net family property that consists of gifts made by the other spouse;
(d) a spouse’s intentional or reckless depletion of his or her net family property;
(e) the fact that the amount a spouse would otherwise receive under subsection (1), (2) or (3) is disproportionately large in relation to a period of cohabitation that is less than five years;
(f) the fact that one spouse has incurred a disproportionately larger amount of debts or other liabilities than the other spouse for the support of the family.
59. If my spouse gambled away a lot of our family income, can I get more than a 50% share of the net family property?
ANSWER: This is one of the special exceptions (subsection 5(6)(d)above) that may allow you to get more than half of the increase in equity.
60. If my spouse never worked and I paid for all the mortgage, property tax, utilities and house insurance, does she still get to keep 50% of the value of the house?
ANSWER :"yes", usually; but see no. 58 above and note that it is not 50% of the current value it is 50% of the increase in equity (market value less mortgage etc.) from Marriage date to V date.
61. What is equity?
ANSWER: Equity is the profit in your home, specifically “fair market value” (FMV) minus mortgages (and any HELOCs and liens) at a point in time.
62. Why does each spouse get half the increase in equity during the marriage if one paid more than half of the costs? That does not seem fair.
ANSWER: That is what the law says, Ontario Family Law Act, section 5 etc. But see no. 58 above.
63. If I paid the down payment toward the house, can I get repaid that amount from my spouse or by deducting it from the equalization payment I may owe her?
No if it is the same house or condominium or other residence now on V date as on M date, but
maybe, indirectly through the equalization formula you could get a partial credit if this was an asset of yours on M date and is no longer the residence you were living in on V date (the MH, as defined by sec. 18(1) of the FLA) . What clients have a hard time �getting� is that the equalization formula is based on two points in time, the day of marriage and the day of separation, M date and V date. Nothing else. Think of it as a snapshot or
freeze frame at 2 points in time. Generally assets and debts before or after and in between those two dates are irrelevant. The flow of money between those dates (who paid how much for what, income and assets) is usually irrelevant to for the ENFP (as opposed to spousal support calculations). The formula uses a snapshot of your net worths at those two days in your lives. The MH is treated specially in Ontario law. If you paid the down payment on a car before marriage, even one day before, it does not count as either an asset or expense for equalization purposes and it is not recoverable; but your assets would be lower on V date because you had spent the money, which is bad as it could increase your
profit (net family property value) over the marriage; but if you borrowed all or part of the cost of the car, that would count as a debt on M date which is actually good as it could decrease your �profit� (net family property value) over the marriage. Similarly the value of any investments or pensions you owned before marriage that had a value on M date must be counted as an M date asset, and any debts for them count as an M date debt, unless they fit the definition of
excluded property Note I am talking here about the values not the ownership. If you owned a car or boat or cottage or stocks or bonds or an RRSP before marriage and still have it on V date, you still keep the ownership, but you may have to share its appreciation in value. The MH (matrimonial home) issue is a complicated one and each case depends on its unique facts and this Answer is not intended as legal advice for your situation. If you paid the down payment any time after the day of marriage, even one day after, it is simply not part of the calculations, simply because the formula only looks at M and V date values (with some exceptions such as expecting to get a severance package of $X before the V date and not getting it until after, it still counts for V date and other exceptions too complex to go into here). If you already owned the house or condo before marriage and that real property became the MH (you and spouse were living there at V date) you cannot list the M date value as an asset to reduce your increase in NFP (like a �profit� made during the marriage) from M date to V date. Likewise you cannot count any debt (e.g. mortgage) that was on this property you owned at M date. In other words the house in this fact scenario is exempt from the ENFP calculation. This is from the definition of Net Family Property in sec. 4 of the statute and is reflected in Part 6 of the form 13.1 financial statement which asks for Assets and Liabilities at Marriage date for all property but in small print says not to include such assets or debts regarding a real property that was owned on M date if it is now on V date the MH. So you do not get a financial �break� or credit for bringing into the marriage the house or condo that became the MH at V date. (The same home must still be the matrimonial home at the time of separation for this scenario). If you brought into the marriage a real property that was sold before V date hence is not the MH, you can count its asset and debts at M date but not at V date as it ceased to exist at V date.) The actual down payment amount made before M date or after M date is not relevant. A down payment is neither an asset nor a liability, it is simply an amount paid, so even if it was made on the date of the wedding it would not be part of the ENFP calculation. So if the original home was sold during the marriage and a new home moved into and was the MH at the time of separation the spouse who brought the original home into the marriage would be allowed to include the value of the original home in calculating his or her assets on M date. Rather than try to figure this out just carefully follow the instructions when filling form 13.1 Some of these are ambiguous but the Divorcemate software has an excellent guide to filling these forms which I consult when not sure
64. When one is calculating division of net family property, are there any exceptions, any money or assets that do not need to be counted?
ANSWER: yes, “excluded property”
65. What is excluded property?
ANSWER: money you got from a car accident or other personal injury settlement or court order, money you inherited or was a gift to you personally and not to you and your spouse or family after date of marriage, money you got from a life insurance policy payout, and property from which the above can be traced excluding the matrimonial home, meaning if you put that money into the matrimonial home it ceased to be excluded, but if you spent it on other property that was owned only by you or you and people other than your spouse, it is still excluded.
66. If we are not married just living together, will one of us be liable to pay the other spousal support?
ANSWER: It depends how long you co-habited, and in what province you live in. In Ontario you are potentially liable after three years. This means continuous co-habitation so any separation of over 90 days starts the time clock all over again. So if you don’t want to be “on the hook”, split up for over 90 days before your third anniversary. This assumes you have no children. See s. 29 of the FLA. States that if you have children, (they need not be biologically your own, e.g. adopted or if you have a parent-child relationship with them) you could be on the liable for spousal support in less than three years.
67. How much does a simple divorce cost?
ANSWER: If it is truly simple and uncontested the court fees and the cost tot get a certificate come to $455 (these may be raised). You must use a third party to serve your spouse and if you hire a process server this could cost anywhere from $40 to a hundred (more if they avoid service or they can’t be easily located, then you may need to get an Order for Substitute Service). Lawyer’s fees start at $700 + HST. So budget for a minimum of $1400.
68. What is difference between an uncontested and a joint divorce?
ANSWER: Not much. They are very similar. The hassle of doing a joint affidavit and other joint forms usually mean it is quicker, simpler and a bit cheaper to do an Uncontested where one party serves the other and when the other does not reply within 30 days it proceeds as uncontested.
69. What are the legal grounds for divorce? Do I have to prove that my spouse has been cheating on me or abusing me?
ANSWER: Under the Divorce Act sec. 8 the only grounds needed are a year of separation, adultery, and cruelty (mental or physical)which is of such an extent that it renders continued cohabitation “intolerable”. In regard to the 365 days of separation that if a partner or spouse get back together with a view to salvaging the relationship for a period of more than 90 days, the one year period disappears and then we must start the time calculation of one year all over again. This is from the Divorce Act subs. 8(3)(b)(ii and is often repeated in Separation Agreements.
70. Do I have to provide photos or videos of my spouse having sex with their secret lover?
ANSWER: Not necessarily, it is up to the judge what evidence is persuasive, but it is much easier to simply wait until 12 months of separation and then file on that basis. Judges prefer that.
71. Do I have to have police proof that my spouse has been hitting me?
ANSWER: Technically “no” but in practice “yes”, or (less persuasive) get medical reports; otherwise it is a “he said-she said” case. (Unless there were several witnesses who are not relatives or friends of you.)
72. How come judge won't give us a divorce up front and why must we fight over the custody and money before we can get the divorce?
ANSWER: Family Law Rule 12(6) provides that a judge on motion (meaning at least one party must make a motion to apply for this) may make a corollary relief order severing the divorce from all the other issues of the case only if satisfied that neither spouse will be disadvantaged and that reasonable child support arrangements have been made. If there is no separation agreement or court order for child support etc. and if other major issues are still in dispute, the judge is unlikely to grant the motion. Thus in most cases the divorce is left to the end of the case after all the custody and financial issues have been settled or ordered. Beware of paralegals who promise to get you a divorce quickly and cheaply before all the other issues have been dealt with.
73. Should I change my will if we separate?
ANSWER: “Yes”, if you don’t want your spouse to inherit your estate. If you have no will he or she will inherit under the Succession Law Reform Act until you get a divorce. To avoid any conflict between the family law and the law regarding estates it is best to revise wills to reflect your current desires.
74. Are there any time limits to applying for child support? How far back can one apply?
ANSWER: There is no formal deadline to commence a court application for child support. It can be applied for at any time and to some extent a retroactive claim can be made, but if you apply more than three years after V date (separation) you may not get the retroactive relie. “In general, retroactive increases in child support should be limited to three years except where there is a finding of disreputable conduct” (D.B.S. v. S.R.G., 2006 SCC 37). Actually the case cites a few more exceptions to the starting premise that support begins at the time of filing the court application: Delay may be excused in the following cases: (a) if the applicant harboured justifiable fears that the payor parent would react vindictively to the application to the detriment of the family; (b) if the applicant lacked the financial ability to bring the application; (c) if the applicant experienced emotional impediments to bringing the application; (d) if the applicant received inadequate legal advice. (See para. 101.)
The case makes the very important statement that: “Child support is the right of the child and cannot be waived by the recipient parent: therefore delay does not eliminate the payor parent's obligation; it is merely a factor for the court to consider in exercising its discretion to make a retroactive order.” Consult an experienced family lawyer for more on details on this important Supreme Court case and how provincial courts have been applying and interpreting it in the last ten years.
75. Should I change my life Insurance?
ANSWER: If you want to remove your spouse or partner as beneficiary, do so. Also consider changing your life insurance policy (or obtaining a life insurance policy) so that instead of your spouse being beneficiary, he or she will be “in trust for” our children (so long as they are legally entitled to child support), in case you die and your spouse owes child support and does not provide enough money in his/her estate to pay for the child support.
76. Are there any deadlines for equalization of net family property?
ANSWER: Any claims you may have to a division of family property under the Family Law Act may be barred by the passage of time if you do not start court proceedings within six years after the Separation V date, or within two years of a divorce, or six months of your spouse’s death, whichever occurs first (Family Law Act subsection 7(3)).
77. What is the difference between a Peace Bond and a Restraining Order?
ANSWER: A peace bond or undertaking to an officer is a criminal court document that sets out certain terms the accused criminal has to abide by or lose his bail. It is very similar to probation order terms. A restraining order is a family court document that contains certain terms that are often very similar or identical to those in a peace bond.
78. I would like to buy my husband’s interest in the matrimonial home as part of the ENFP, but I can’t afford to pay a fair market price. What can I do?
ANSWER: Normally the house or condominium must be put up for sale on the open market and the couple shares the profit. Often however the husband owes the wife an equalization payment (ENFP) and this can be set off as a credit toward the purchase. E.g suppose the house is worth $1,000,000 and after the mortgage and other costs are considered (lawyers will provide the formula) there is $800,000 equity in the house, so a fair buyout price is $400,000 but you cannot afford anywhere near that, but your husband owes you $300,000 equalization payment, so you would only need to borrow $100,000 and a bank or private lender (consult a mortgage broker to get the best deal) may be willing to finance you under these conditions. This way the husband loses his legal interest in the house but does not have to actually pay you $300,000 and walks away with $100,000. You get the house, but with a mortgage, and no equalization cash.
79. What is a “hardship” claim?
ANSWER: Generally this applies to people who are trying to get out of paying child support. According to sec. 10 of the Child Support Guidelines:
(2) Circumstances that may cause a spouse or child to suffer undue hardship include the following:
(3) Despite a determination of undue hardship under subsection (1), an application under that subsection must be denied by the court if it is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support under any of sections 3 to 5, 8 or 9, have a higher standard of living than the household of the other spouse.
(4) In comparing standards of living for the purpose of subsection (3), the court may use the comparison of household standards of living test set out in Schedule II.
(5) Where the court awards a different amount of child support under subsection (1), it may specify, in the child support order, a reasonable time for the satisfaction of any obligation arising from circumstances that cause undue hardship and the amount payable at the end of that time.
(6) Where the court makes a child support order in a different amount under this section, it must record its reasons for doing so.
This last subsection is there because generally the Table amount is supposed to be applied, so the legislature is warning the judiciary that “hardship” is an exception and they better have a good reason to allow a payor to pay less than the Table amount.
80. Are there any legal obligations to support parents?
ANSWER: “Yes”, the FLA at sec. 32 provides that an adult person has to care for their parents. “Every child who is not a minor has an obligation to provide support, in accordance with need, for his or her parent who has cared for or provided support for the child, to the extent that the child is capable of doing so.” I have never heard of any parent making a support claim against their child but if they did it would be perfectly legal and with the aging population this may become common. In one of the very few reported cases, the parents sought support from the child who had won $1million from a lottery. The court denied this attempt and held that this windfall of the child did not entitle the parents to a higher than normal standard of living.
81. Where can I get some free online information about child support and custody and access that is simple and basic?
ANSWER: re child support: http://www.cleo.on.ca/sites/default/files/book_pdfs/childsupport.pdf
re custody and access:
82. Where can I get some free online information about property division that is simple and basic?
ANSWER: www.CLEO.on.ca has a series of online pamphlets or brochures with good basic information. Regarding property (which include all financial assets as well as real estate) the ULR (link) is:
83. Where can I find a family mediator?
ANSWER: I know some good ones in the Durham region and Peel region. Most family court houses have some on site. Also call the Ontario Association for Family Mediation at 1-844-989-3026 or visit their website at www.oafm.on.ca
84. What is Occupancy Rent? How is it calculated and how can I get it?
ANSWER: See Q 56 above under leaving the Matrimonial Home.
85. Can I get a court order forcing the sale of the MH?
ANSWER: It is possible, under sec. 10 of the FLA and under the Partition Act of this province, if both spouses are on title (co-owners on the deed). If the two owners (husband and wife) do not consent, such an order might not be given prior to a trial, or it might be given as a result of a motion seeking the application of FLA sec. 23 (c). Many judges are reluctant to force the sale of the MH when one of the owners resists it and prima facie they can’t do it if there is only one owner and that person objects because FLA sec. 21 subs. 1 says that any time someone who is married tries to sell a real property in Ontario that is a MH, they need the written consent of their spouse(see Q. 86 below)but this must be read in conjunction with section 23. Every case and every judge is unique and I heard of a case in Newmarket where the house was ordered sold very, very early in the case supposedly due to the husband's dire finances, despite strong objections from the wife who was also on title (co-owner) and claimed the husband's evidence was bogus, probably due to FLA sec. 23 (c). However much more commone is the situation where the MH must be sold for one spouse to be able to afford to pay the equalization payment (ENFP) to the other (out of their share of the proceeds), and if one owner refuses or stalls and financing for a "buyout" cannot be obtained, then an order would be granted as part of a trial decision. Section 23 parts (a) and (b) of the FLA state: "The court may, on the application of a spouse or person having an interest in property, by order, (a) determine whether or not the property is a matrimonial home and, if so, its extent; (b) authorize the disposition or encumbrance of the matrimonial home if the court finds that the spouse whose consent is required, (i) cannot be found or is not available, (ii) is not capable of giving or withholding consent, or (iii) is unreasonably withholding consent, subject to any conditions, including provision of other comparable accommodation or payment in place of it, that the court considers appropriate;"
86. Can I get the court to stop my spouse from selling the MH?
ANSWER: Assuming your spouse does not have a court order or it is not in a Separation Agreement that the property is to be sold (see above), technically you do not need a court order to prevent the sale. This is because FLA sec. 21 subs. 1 says that any time someone who is married tries to sell a real property in Ontario that is a MH, they need the written consent of their spouse, so you would simply not sign that form. This law applies whether the house is owned by one or both parties and is there to protect the spouse’s family law share in the equity. However you should consult a family lawyer and a real estate lawyer because if the seller claims the property is not the MH (they may claim it is an investment property or a summer home only) and/or signs the sale document saying "I am not a spouse" you can't stop the sale. This is why in the Transfer document(sale/purchase)there is a line saying "I am not a spouse" which the real estate lawyer prefers to be filled out if one person is trying to sell a real property. Any competent real estate lawyer would know about this. The sale would go through despite your current objections if previously provided for in a Separation Agreement or if a court applies FLA sec. 23 (see Q 85 above). See Q 85 generally above getting court to order a sale of a MH.
87. How to handle income tax aspects when calculating section 7 extras?
ANSWER: In this answer to keep it simpler I will assume the child support recipient is the mother and the payor is the father, even though occasionally the roles are reversed. One client who was a section 7 payor (a father) was adamant that his section 7 proportion (per subs. 7(2)) should be calculated on the child’s mother’s section 7 eligible expenses after any tax breaks she got were deducted, so he would not be paying when she was getting tax deductions or credits for section 7 expenses. He felt that if she was getting breaks, why should he be paying for the pre-tax amount? He felt that she would be getting reimbursed twice (double dipping). (It is actually not double as a tax deduction or credit is not the same as and is less than getting a full reimbursement of a section 7 expense that one has paid, but we understand the father’s concept and concern, and it made sense to me.) Note that sec. 7(1) just refers to Incomes, and does not mention pre or post tax, (unlike basic child support which is based on gross incomes except for the self-employed) so as often happens this gray area gets left to the judges of the courts to decide. My client’s general principle has some court support: The 1997 case of Middleton v. MacPherson 29 RFL (4th) 334 (Alberta Queens Bench) said that courts should try to use the net income for section 7 calculations, estimating tax aspects, and any other contributions. I found two more cases that said that the CTB (it has now been replaced by the CCB) should be added to the recipient’s income before proportioning. In D’Entremont v D’Entremont  NSJ No 586 (QL) the court held in part that while one must ignore the CTB for basic child support “In other words, Section 7(2) refers to the Courts determining the parties respective incomes and, in that instance, it is appropriate to include the amount of money she does get from the Child Tax Credit.”
In the later Ontario case Olaveson v. Olaveson 40 RFL (6th) 327;  OJ No 2431 (QL) at para. 29 the court stated: “The term “incomes” in s. 7(2) has a different meaning from “income” for Table purpose. It should be equated more to means since s. 7 expenses are based in part on parental means” and in the next para. the court added the CTB to the mother’s income before apportioning the sec. 7 expenses.
However I also found a Saskatchewan case from about the same court level (Queens’ Bench) that disagreed, (Bear v. Thomson 2013 SKQB 270 Docket: DIV. 445/2006 Judicial Centre: Regina, Family Law Division) Para. 51 specifically disagrees with the aforecited Nova Scotia and Ontario cases and goes on to say that “Counsel for the respondent suggested amounts received by the petitioner by way of GST and Child Tax Credits should be considered as income to the petitioner for the purposes of s. 7 expenses. This is not appropriate as these are not sources of income on the T1 General form issued by Revenue Canada. See also Stewart v. Stewart, 2009 BCSC 917,  B.C.J. No. 1344 (QL) to the same effect.“
So we must await a decision of an appellate court or the Supreme Court of Canada for a definitive answer, but for now in Ontario and Nova Scotia the courts have held that the CTB should be added. My client wanted to deduct the tax benefit and any other tax deductions or credits from the total section 7 expenses and then apportion the remaining amount, i.e. the net or after tax amount; but the way the formula is applied by courts and software, any tax benefit is first added to the recipient’s income to get the total incomes to apportion based on each party’s income. (The courts have said that “income” as defined by CRA is not necessarily the same amount as for child support, creating more gray areas to haggle over.) As far as the old tax breaks for parents with eligible kids, the UCCB was a form of income and was taxable, the CTB was a non taxable benefit (as is the new CCB) , and the “eligible dependent” (formerly “equivalent to spouse”) was a deduction for single parents (who met additional conditions). None of those three were tax credits, but the Tories had fitness credits which have been cut in half from $1000 to $500 for 2016 and will be eliminated for the 2017 tax year. There are also some disability credits if the child can be proved to have a disability.
It is very important to know how to input data in Child View or Divorcemate’s Supportmate software (computer programs). The Child Support Guidelines (CSG) were changed in 2011 to say that one ignores the UCCB – and so the software will ignore it, and there is no row for it labeled in Supportmate so it must not be manually entered as extra income to the support recipient nor deducted anywhere for the payor. However as for the Child Tax Credit (CTB, replaced for 2016 by the Canadian Child Credit, both being non taxable benefits) since the CSG did not mention it, recent cases in Nova Scotia and Ontario have held that it should be added to the recipient’s income. Supportmate has no row for you to enter it manually, as it automatically calculates it. However I found that if I use the “Options” tag it opens a window which allows me to tell the software to include the CTB (now CCB) as income, (you need not and cannot input the amount, the software calculates it) it results in more income to the recipient and thus a different proportioning of section 7 expenses, which is good for Dads (less sec. 7 child support to pay) and bad for Moms (less money from the childrens’s father). I placed a call to Divorcemate to explain this and it seems this option was made available for users in the Eastern provinces where there is a lot of CTB being paid (larger families?) and perhaps because of the D’Entremont case, but for Ontario apparently most users just let the software calculate the CTB (or CCB now) but it is not added to the mother’s income (which I feel it should be, pursuant to the D’Entremont and Olaveson line of cases; but keeping in mind that not adding it would be correct in Saskatchewan and B.C. unless the 2009 case has been overturned in the last few years.) In other words I think the “Eastern” method should be used in Ontario based on the caselaw, even though that option is apparently often not used when inputting data into Supportmate. I have no comment on which of the two ways of instructing Supportmate to use in Alberta, unless the 1997 case is still good law in which case the “Eastern“ method should be used. I have no idea about Quebec which is usually unique.
89: What do I put in Divorcemate Supportmate where it says “recipient’s age at separation” if there was no marriage or co-habitation and hence no separation? (Some couples only get together for a few hours at a party and a child is conceived.)
ANSWER: The age of recipient at separation datum is in the program to help it calculate the duration of spousal support. In this rare case where there was no period of cohabitation, the duration of SS will be zero or very minimal. Hence the age of the recipient at separation (which never happened, you cannot separate if you never lived together in the first place) is irrelevant. Divorcemate staff told me that the age would not matter as it would not affect the results. I then experimented by using various ages from 18 to 55 and indeed found the exact same result for basic child support, sec. 7 extras and SS as for age 35 (mother’s age when child was born) so they were right that it does not matter in this rare situation. Also consider the definition of “spouse”. Under s. 2 and 15 of the (federal) Divorce Act a spouse is someone who is married – clearly not the case here. The (Ontario) Family Law Act at section 1 defines spouses as being married but later at sec. 29 defines “spouse” as including persons who have co-habited continuously for three years or more. It goes on to include as spouses two person who are in relationship of some permanence if they are the parents of a child (natural or adopted). So in this rare case the couple are not spouses ergo there is no obligation for spousal support as would otherwise be the case (per sec. 30). Hence the software also indicated a zero amount for Spousal Support for the Low and Medium scenarios. (It also showed a very small amount under the High scenario which based on what I just wrote seems wrong, an indication of why the figures are just guidelines and must be considered in light of the facts and other issues such as “entitlement”.)
THE ABOVE IS NOT INTENDED AS LEGAL ADVICE AND IS ONLY THE OPINION OF RANDAL MONTGOMERY AND HIS INTERPRETATION OF THE LAW, FOR GENERAL INFORMATION AND PUBLIC EDUCATION ONLY. THE FACTS OF YOUR CASE MAY NOT APPLY TO THE EXAMPLES CITED HERE. THE OPINION COULD BE OPEN TO DISPUTE.