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What’s the difference between a contested and uncontested divorce?
Divorce in general is a legal process that a married couple must undergo to end their marriage. A contested divorce is when the spouses disagree on one or more issues related to the divorce and an uncontested divorce is a proceeding where spouses are mutually seeking divorce and have sorted all issues related to the separation.
Can a separation be resolved without going to court?
The simple answer is yes, the law does not require that couples go to court in order to finalize their separation. There are various other alternate dispute resolutions (ADR) at their disposal like collaborative law, mediations, and arbitrations to help them reach an amicable separation agreement.
Do separation agreements need to be periodically reviewed?
Ideally, separation agreements should be reviewed every year to acknowledge the changes in relationships, financial statements, mobility, children’s progress, etc.
How is property divided during a divorce?
Ontario law requires that all property acquired during the marriage must be divided equally among the spouses if the marriage ends in a divorce for any reason. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. There are some exceptions to this division commonly known as ‘excluded property’ which might include gifts or inheritance or insurance settlements received by one of the spouses from an outsider which was not used towards the matrimonial home.
What is property under Ontario law?
The term ‘property’ includes everything that a spouse owns in a marriage, for example:
What is a matrimonial home?
The term “matrimonial home” is defined in section 18 of the Family Law Act (Ontario) as “every property in which a person has an interest and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and [their] spouse as their family residence”.
How is the matrimonial home equalized in a divorce/separation?
If married, both spouses have an equal right to live in their home unless a judge decides otherwise. Because of this, neither spouse can monetize the house without the consent of the other. If children are involved, then most likely the partner with primary custody gets to live in the matrimonial home with the children.
How do child custody laws work in Ontario?
The Federal Divorce Act states that children must be allowed an equal amount of contact with both parents. However, there are 2 types of child custody in Ontario – joint and sole custody. Joint custody is when both parents have to agree on the major decisions for their children’s well-being. Whereas, sole custody is when only one parent makes all the important decisions for the child(ren) even if the other partner disagrees. This usually happens in extreme cases where one of the spouses for a variety of reasons is not fit to share child custody.
What is an access parent?
An access parent is not the primary parent whom children spend most of their time or live with. This (access) parent shares custody with the other (primary) parent with whom the children spend roughly over 60% of their time.
When is supervised access ordered?
Supervised access may be ordered by a court in such circumstances that a child is deemed to be at risk of harm if left in the care of one parent. This access usually takes place in the presence of an extended family member or relatives or friends of the family. However, it can be terminated once the designated parent is found to be fully capable of custody without supervision.
Can a divorced parent with custody move to a different City?
This question deals with the concept of ‘mobility rights’ in Ontario which allows a parent to move with their children as long as it does not impede the other parent’s access. However, this move depends on various factors like the type of custody, the effects of this move on the children, an act of remarriage, educational benefits and more.
Will a spouse need the other parent’s permission to travel internationally with children?
The answer is yes, the other parent needs to consent to this travel through a written statement or a court order that permits cross-border travel.
What is child support?
Parents have a legal duty to support their children financially consistent with Ontario’s Child Support Guidelines even after divorce or separation. Simply put, it means that one parent pays the other to help cover the costs of caring for their children.
How is child support calculated?
Child support is generally made up of a basic monthly amount called ‘table amount’ and an additional amount for other expenses, called ‘special or extraordinary expenses’. The table amount depends on two factors namely:
On the other hand, special expenses are mostly above the table expenses which include (but are not limited to) daycare, healthcare, education, extracurricular activities and more.
Is child support taxable?
No, child support is not taxable for either parent, meaning the payor cannot claim tax breaks nor does the receiving parent need to declare taxes for the support they receive.
What happens if a spouse fails to pay child support?
If a partner fails to pay child support as per their separation agreement, the other parent can file the agreement with the court of law and with the Family Responsibility Officer (FRO) for enforcement. Some strategies might include direct deposits from the payor’s employer, bank garnishment and more. In extreme cases, the FRO can request that the partner’s passport be seized and their driving license suspended.
What is spousal support?
Spousal support is money paid by one spouse to the other after divorce or separation. There are many factors that determine the eligibility of a married or common-law spouse and how much payment they should pay or receive.
How is spousal support determined?
It is primarily paid when there is a huge difference in spousal income after divorce or separation for a certain period of time. However, this is not the only reason as judges might consider other factors that could entitle an individual to spousal support like:
Is spousal support taxable?
Yes, generally spousal support payments are taxable under Canadian law as they are viewed as income received. The spouse who makes these payments can also file for tax deductions with the CRA.
Is spousal support periodic or a one-time payment?
Primarily, the court awards monthly spousal support for spouses in need but one-time lump sum payments can also be made depending on the situation. Typically, the court requests a one-time payment if the reliability of a spouse to pay monthly support is called into question. The duration of these payments can either be definite or indefinite.
What is a marriage contract or a prenup?
A marriage contract or a pre-nuptial agreement is a legal document voluntarily signed by both parties which define the matrimonial regime and identifies each spouse’s contribution to the household expenses. It also governs how the couple’s finances are managed and eventually distributed in the event of divorce or death.
What purpose does a marriage contract serve?
Simply put, it defines how assets will be divided in the event of a divorce. During the course of a marriage, spouses accumulate property and assets that make up the family matrimony. When a couple decides to separate, the law requires the equal distribution of those assets. However, some assets are excluded such as shares, investments, TFSAs, pensions, gifts, inheritances, etc. – A marriage contract helps to specify these items and how they should be divided.
B.Soc.Sc (Hons), J.D.
