Family Law

Frequently Asked Questions

Can my spouse and I have the same lawyer?

No. Family law is an area where parties have competing interests, regardless of whether or not their separation is amicable. Independent representation ensures each party’s rights and responsibilities will be protected and advanced in order to achieve an outcome that meets the client’s needs.

How much is this going to cost?

While this is a completely fair question, it is impossible to answer without a full understanding of the nature of the particular case and the complexities involved. At the first consultation, we will discuss the facts of your case, strategy and will establish a road map for moving forward. Based on the steps to be undertaken, an estimate of costs will be discussed.

Do I have to pay for the first consultation?

Yes. We will be providing you with legal advice and information which will assist you in deciding how you wish to proceed with your case. Please contact us to inquire about our hourly rates.

What do I need to have a legal separation?

Contrary to what most people understand to be the case, you do not need to have a Separation Agreement to be legally separated. Separation is established when you and your spouse physically separate or when one of the spouses forms the intention to terminate the marriage.

What is the difference between separation and divorce?

In the case of a separation, the parties have decided to live separate and apart from one another based on a breakdown of their relationship. It is usually advisable to enter into a Separation Agreement to deal with issues arising from the breakdown of the relationship, including, custody, access, child support, spousal support, property division, etc. Until such time, however, as a divorce is granted, the parties remain legally married. The only way a party can terminate a marriage is by commencing a Divorce Application and obtaining a Divorce Order and a Certificate of Divorce.

How do I get a divorce?

In order to formally end your marriage, you must file an Application with the Superior Court of Justice – Family Court Branch. An Application starts the court process and sets out the issues that you are asking the Court to decide. There are different procedures to follow depending on whether you are seeking a divorce only or whether you require the Court’s assistance to determine other issues as well such as custody, access, property, and/or support.

How long does it take to get a divorce?

In order to qualify for a divorce, you must have been separated from your spouse for at least one year or otherwise establish one of the other grounds for divorce, namely adultery or cruelty. The vast majority of cases proceed on the basis of separation for at least one year. If your Application is for a divorce only and is uncontested by your spouse, the process is usually completed within three to six months. If, however, your Application includes other claims, the time that it takes to complete your case will vary depending on the complexity of the proceeding and the ability of the parties to negotiate a resolution of any or all of the issues.

Does my case have to go to court?

No. Many cases are fully resolved without a court action ever being commenced. As skilled negotiators, we strive to settle our cases in a timely, cost-effective and amicable way. When this is not possible, however, our years of court and litigation experience, together with our diligent and thorough approach to court preparation, will ensure that you are in good hands.

What is mediation?

Mediation is a voluntary process entered into by the two parties who attend before a trained professional to help them resolve issues arising from the breakdown of their marriage. Depending on the issues involved, the mediators are usually lawyers, social workers or psychologists.

What is arbitration?

Arbitration is a process where the parties agree to submit their issues in dispute to an independent expert, chosen by them, for determination.

Do I need a Prenup/Marriage Contract?

That depends. Are you entering into the marriage with a home that you and your spouse plan to live in after your marriage? Is this a second marriage for one or both of you? Are you a shareholder in a family business? Are you expecting a gift or an inheritance that may be used to pay down your mortgage? These are just some circumstances where it is advisable to enter into a Marriage Contract, commonly referred to as a “Prenup”. Contact us for a consultation to determine whether or not you should be protecting yourself with such a contract.

Do I have the same rights as a common-law spouse as I would if I were married?

Yes and no. The legislation in Ontario has a different definition for “spouse” for support and property rights. You do not have to be married to seek spousal support provided that you have cohabited with a party for at least three years or in a relationship of some permanence, if you are the natural or adoptive parents of a child. When it comes to property, however, you are only considered a spouse under the legislation and entitled to a division of property, if you are married. While there are other ways to try to claim an interest in your spouse’s property if you are not married, you do not have an automatic entitlement under the law.

Are same sex couples afforded the same rights and protections as opposite sex couples?

Yes. The definition of spouse for support purposes includes either of two persons who have cohabited continuously for a period of not less than three years or are in a relationship of some permanence, if they are the natural or adoptive parents of a child. With respect to property, the definition of spouse includes two persons who are married to each other.

What is the difference between custody and access?

Custody refers to the right to make major decisions affecting the children. Access pertains to the children’s residential schedule – how much time they spend with each parent. Children’s access arrangements can vary greatly from one family to another, depending on the particular circumstances of that family. When determining the appropriate custody or access regime, the best interests of the children are paramount.

What is the difference between sole custody and joint custody?

Custody refers to the right to make major decisions affecting the children, such as decisions relating to health, education, religion, etc. In a case of sole custody, one parent has the right to make these major decisions after consultation with the other parent, whereas in a joint custody arrangement, these major decisions are made jointly by the parties.

Resources

1. Child Support Guideline Tables: http://www.justice.gc.ca/eng/fl-df/child-enfant/fcsg-lfpae/2011/index.html

2. COLA (Statistics Canada): http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/cpis01a-eng.htm

3. RRSP Rollover Form 2220: https://www.canada.ca/en/revenue-agency/services/forms-publications/forms/t2220.html

4. Canada Pension Plan Division of Credits Application: https://catalogue.servicecanada.gc.ca/content/EForms/en/Detail.html?Form=ISP1901

5. Frequently Asked Questions – Ministry of the Attorney General for Ontario: https://www.ontario.ca/page/family-law-services

6. Government of Canada Travel Consent Letter: https://travel.gc.ca/travelling/children/consent-letter