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TORONTO CANADA
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DIVORCE & FAMILY LAW SERVICES
KUBES LAW FIRM PROVIDES STRONG REPRESENTATION
We represent our clients using comprehensive legal strategies and our
extensive knowledge and expertise in Ontario and Canadian Family Law
issues, to accomplish their goals, even under difficult circumstances
which can arise when a relationship is at an end. We protect our
clients' interests, and understand that there is a time when it is
necessary to be aggressive, and as well, we recognize when it is
important to be conciliatory.
In some cases, only a forceful approach can work, whereas in other
situtions, there is a need to expertly negotiate, mediate and use the
collaborative family law model. We have an extensive network of
business, asset and pension valuators and accountants, as well as
medical, child psychologist and behavioural experts, who are able to
provide excellent expert evidence in Court.
We have the capability to predict the likely outcome of court
proceedings prior to undertaking them, which allows us to recommend,
when appropriate, the resolving of issues concerning child support,
spousal support, matrimonial property, matrimonial home, and child
custody, outside of the courtroom. In this way, we can Settle cases by
mutual agreement, which is less expensive and less stressfull in many
cases.
However, where it is appropriate, we are more than willing and
determined to aggressively and effectively litigate any matter in the
Courts. We will also expertly negotiate any cohabitation agreement,
marriage contract or separation agreement on your behalf to ensure that
your rights are fully protected. These domestic agreements entered into by a couple, can be very useful,
in reducing future disruption in the emotional and financial affairs of
the parties, as well as in dealing with support, matrimonial property
division and other family legal issues.
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 Mr. George J. Kubes B.A., LL.B.
Contact:
Mr. George J.
Kubes B.A., LL.B.
360 Bloor Street West, Suite 403
Toronto M5S 1X1
Canada
Telephone:
(001)
416-926-9298
Fax:
(001)
416-926-1717
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1. Divorce ...
2. Legal separation ...
3. Child support ...
4. Child custody and access ...
5. Spousal support ...
6. Same-sex and opposite-sex common-law relationships ...
7. Matrimonial property ...
8. The matrimonial home ...
9. Domestic contracts - separation, marriage and cohabitation ...
10. Collaborative family law ...
11. Child protection law in Ontario ...
DIVORCE
Either a husband or a wife is able to commence divorce proceedings in Ontario, provided that certain legal pre-conditions have been met. For instance, at least one of them must have been Ordinarily Resident in Ontario for a period of at least one year, prior to commencing a divorce action. It is sufficient if one of the parties has been living in Ontario for the said period of time. In addition, it is the law of Canada, that in order to institute a divorce action, there must have occurred a “breakdown of the marriage” prior to the commencing of the divorce proceedings.
This " breakdown of the marriage " must have occurred due to one of the three grounds which can be used to obtain a divorce in Canada. The first ground arises, if the spouses have been living separate and apart prior to the commencement of divorce proceedings, including on the day when the divorce proceedings are instituted.
The second ground arises, if either party has committed adultery.
The third ground exists, if one of the spouses has been treating the other spouse with physical or mental cruelty to a degree, that it rendered intolerable the continued cohabitation of the parties. The main and most-used ground for divorce in Canada is the first ground noted above, being the legal separation of the spouses, because the latter two grounds are much more difficult to prove in Court, and when used, evoke a greater degree of hostility between the parties.
LEGAL SEPARATION
The issue of whether there has occurred a separation of the spouses sufficient to constitute a ground for divorce, is a legal question and is also dependent on the facts of each case. If one of the partners has moved out of the family home, this is clearly evidence of physical separation. However, a couple can be legally-deemed to be living separate and apart, even if they physically still reside "under the same roof", depending on the type of relationship that they have.
For instance, where conjugal relations have ceased, and each partner is essentially living his and her own life separately, and there exist two distinct households under the same roof, where their relationship is at an end and the spouses do their own cooking, cleaning and socializing, the spouses can be legally-deemed to be living separate and apart under the same roof.
The legal concept of separation for the purposes of a divorce has an important psychological element, and it is sufficient, for separation to exist, where only one spouse has the intention to separate, and does separate, even if it is against the wishes of the other spouse. Physical separation alone is not sufficient to create legal separation, but rather, there must be the intention to withdraw from the marriage by at least one of the parties.
It must also be noted with respect to the one-year-rule of separation, that the parties need only be separated for a very short time in order to be able to commence divorce proceedings, so long as the divorce Judgment is not granted earlier than one year following the commencement of separation. As a matter of public policy of keeping the family unit together, and in an effort to encourage reconciliation of the spouses, couples who are separated, are lawfully able to attempt to reconcile and resume living together as husband and wife, for a single or for several periods, amounting to no more than a total of ninety days during the one year separation period, without that ninety days interrupting the running of the one year period which is the required length of time for separation to become a ground for divorce.
However, if the spouses seemingly reconcile and live together as husband and wife for more than ninety days during the one year separation period, the separation period is then interrupted and nullified altogether. Should they separate again subsequently, the one year period of separation will have to be counted in its entirety from the latest date the couple separated, and they will have to wait one year, before a Judgment can be made granting them a divorce.
CHILD SUPPORT
In the past, an obligation to support children was shared by the parent who had custody of the child, as well as the non-custodial parent, proportionate to their respective incomes. In the past few years however, a new approach has been adopted with respect to child support, that requires the payor of child support to pay an amount that is calculated based both, on his or her income, and the total number of children that are entitled to support.
The income of the parent who has custody of the child or children, and who is the recipient of support, is not taken into account in this calculation in most cases. The parent who does not have custody of the child, is obliged to pay child support to the parent who does have custody. The Child Support Guidelines determine the amount of child support payments.
The obligation to pay child support falls on biological or adoptive parents of a child, and as well, on persons who have a relationship with the child that is referred to as that of a “psychological parent”. A person may incur a legal obligation to pay child support even if he or she is not a biological parent of the child, and was not married to the person who has custody.
Family Law provides also, that persons who stand in place of a parent, and persons who have demonstrated to a child a settled intention to treat the child as their own, also may have an obligation to pay child support. The obligation to pay child support is very significant, because once it is legally established, it can last many years and is enforceable by the Province of Ontario as against the payor of child support. If a payor who is obligated to make child support payments fails to do so, the Family Responsibility Office F.R.O in Ontario, takes various and sometimes extreme steps against him or her to enforce the obligation to make child support payments.
CHILD CUSTODY AND ACCESS
Child custody law in Ontario makes the custodial parent responsible for the care, control and well-being of a child on a daily basis and for making major and final decisions on behalf of the child. The parent who does not have custody, is usually granted visitation rights or access, to the child, and is entitled to have input into important decisions affecting the educational, physical, religious, social, and moral development of the child.
The non-custodial parent is also entitled to ongoing contact with the child, including periodic overnight visits, weekend, holiday, birthday and vacation access, and is also entitled to be kept fully informed by doctors, dentists, and schools as to medical and educational issues relating to the child. There are various child custody arrangements possible between parties, which can be ordered by a Court or agreed upon by the parties.
These can include sole custody, joint custody, split custody and shared custody, among others. Joint custody or what is known as shared parenting, grants each parent the right of consultation and input into major child-related decisions. A child’s relationship with his or her parent is the right of the child, and not of the parent.
The fundamental principle used in determining who shall have custody of the child, is known as the doctrine of the “child’s best interests”. As well, if the wishes of the child can be ascertained, that evidence carries a great deal of weight in determining which parent shall have custody.
In cases where there is much dispute as to the issue of who shall have custody of the children, family law custody assessments are frequently conducted by psychologists, psychiatrists or social workers, who are hired by either or both of the parties to provide recommendations to the Court as to the best interests of the children, and who should have custody.
SPOUSAL SUPPORT
There are various circumstances, depending on the facts of each case, in which a Court may order spousal support to be paid by one spouse to the other. The three variables in spousal support determinations are entitlement to spousal support, the quantum of the spousal support and duration of spousal support.
In order to make spousal support more predictable, Spousal Support Advisory Guidelines have been drafted by the Federal Government and can be used by the courts. These guidelines, however, are not legislated into law, are intended to operate on an advisory basis only, and are not mandatory. They contain two different schemes, one for families with dependent children, and another one for families without dependent children.
In general, every spouse is obligated to provide support for himself or herself as well as for the other spouse, according to their respective needs, and to the extent that they are capable of doing so. When a marriage has broken down, either spouse may apply for an order for support.
There are several factors, which help in determining whether a spouse is entitled to support. These include the length of the marriage, any negative financial consequences and hardship suffered by a spouse as a result of the marriage or its breakdown, and the likelihood that support payments will lead to financial self-sufficiency of the spouses.
Spousal support payments which are made pursuant to a Court Order or written Agreement, in contrast to child support payments, are to be included in the taxable income of the recipient and are deductible from the taxable income of the payor spouse. Spousal support is paid monthly, but in some cases it may also be paid in a lump sum.
Spousal support issues after marriage-breakdown is governed by the Divorce Act, while spouses who were not married, but rather have satisfied the legal test of having cohabited continuously for a period of not less than three years or who have cohabited in a relationship of some permanence and are the natural or adoptive parents of a child, have recourse to the Family Law Act in order to obtain spousal support.
A “same-sex partner” can also apply for spousal support under the Family Law Act. Same sex couples who marry are also covered by the definition of “spouse” and are entitled to apply for spousal support if their marriage breaks down. In cases of marriage-breakdown, application for support under the provisions of the Family Law Act must be made before the parties are divorced. If no claim for support was made in the divorce proceedings and a divorce judgment has been granted, the support claim must be made as a corollary relief claim under the Divorce Act and not the Family Law Act.
SAME-SEX AND OPPOSITE-SEX COMMON-LAW RELATIONSHIPS
The legal rights and obligations of unmarried couples, whether in opposite-sex or same-sex cohabiting relationships are complicated. Ontario law grants unmarried couples similar rights to married couples. Under Ontario law, both same-sex and opposite-sex common-law couples are referred to as “spouses”, and are granted similar right as married couples, generally only after three years of cohabitation.
On the other hand, under Federal Divorce law, only legally married couples are called “spouses”, and all other couples who live together whether same-sex or opposite-sex, are referred to as “common-law partners”. The Divorce Act grants them similar rights and responsibilities as married spouses, after living together for just one year.
A common-law relationship is established when two people live together as a couple. If they do not live together, then they cannot be considered to be in a common-law relationship. If they have been living together and later cease to do so, they are no longer common-law spouses. They do not need to bring any legal proceedings in order to end the relationship. On the other hand, once a couple is married, both partners immediately have all of the legal rights and responsibilities that come with marriage. This is not the case with unmarried couples who live together.
Under Ontario family law, you must have lived together for three years, in order to have similar rights and be legally considered as common-law spouses, unless you have a child together. Under the Federal Divorce Laws, the period of time required, as noted above, is one year. There is no legal difference any longer, between children whose parents are married and those whose parents are not. The terms “legitimate” and “illegitimate” no longer apply to children in Ontario law.
A child’s right to be supported, to inherit, to use their parent’s name, or to receive survivor’s benefits, does not depend on the marital status of their parents. Both birth parents and adoptive parents have a legal responsibility to support their child at least until the child turns 18 years of age.
Sometimes the right to support by a child can be extended, if the child continues to be dependent. It makes no difference whether the parents are married or whether they live together. Living in a common-law relationship does not by itself, give one a right to a share of the other spouse’s property. In a common-law relationship, the property that you bring into the relationship normally continues to belong to you alone.
If you and your spouse later separate, there is no automatic right to divide it or share its value. Anything you buy for yourself with your own money during the relationship and hold in your name, usually belongs only to you. But property that spouses purchase jointly during the relationship, belongs to both of them. If they separate, these things, or their value, will be divided.
Married spouses who separate have an equal right to stay in the family home until it is sold, even if the legal title to the property is in only one of their names. Common-law spouses do not automatically have this right. If the family home is in only one spouse's name, the other spouse is not protected from their spouse selling or mortgaging the home without their written permission.
The general rule is that each common-law spouse owns what he or she brings into the relationship. However, if the common-law spouse who does not own the property made some kind of a contribution toward it, a Judge might rule that the spouse has a right to a share in it. As well, if common-law spouses want to make their own arrangements for sharing or dividing property in the event their relationship ends, they can sign a cohabitation agreement. In the agreement, they can set out and agree clearly, how they intend to arrange their finances during their relationship and how they wish to deal with the property if they separate.
Under the Family Law Act, common-law spouses in Ontario have the same responsibility, as married couples, to financially support themselves and each other. This responsibility may continue after the relationship is over, if one spouse needs support and the other is able to provide it. Many factors affect whether a court will order one spouse to support the other, after the end of the relationship, and if so, for how long. Some of these factors include the length of the cohabitation, whether one spouse was financially disadvantaged by the relationship, and the ability of each spouse to be financially self-sufficient.
Legal responsibility to provide support does not begin as soon as you start living together as a couple. It applies only to couples who are married to each other, or who have lived together continuously for at least three years, or are in a relationship of “some permanence” and have had a child or adopted a child together. Canada allows same-sex marriages, which is a welcome development in the law.
Same-sex couples are also able to enter into a domestic cohabitation agreement between them, to govern their relationship. These agreements may turn into marriage contracts if they later marry each other. In the past, only married opposite-sex couples had the right to have their property equalized, when the marriage ended.
Due to changes in the the Family Law Act, same-sex married couples also now have this right. As a result of changes in the law, obligations and rights to spousal support now also apply to same sex couples who marry, without having to wait for a certain period of time. Furthermore, a married same-sex spouse now has full access to pensions belonging to their spouse and to their proper share of the property in the event of the death of their spouse.
MATRIMONIAL PROPERTY
The intention of the Family Law Act is to ensure that the value of all assets acquired by either or both parties by virtue of the marriage partnership will be shared equally upon the marriage breakdown. The value of nearly all property accumulated during the marriage as opposed to the property itself, is to be shared equally between the spouses on marriage breakdown, through a process known as “equalization”. This occurs in every case, unless the spouses have agreed otherwise in a domestic agreement, or the fact situation falls within one of the exceptions stipulated in the Law.
The first step in the equalization process is to calculate each spouse’s “net family property” . The valuation date for determining the value of each spouse’s net family property, is the earliest of several events, but normally is the date the parties separated, with no reasonable prospect of a resumption of their cohabitation.
The second step, is to “equalize” the spouses' net family properties, which requires a payment equal to one-half of the difference between the value of their net family properties be made. In many cases consequently, separated
spouses tend to minimize their own net family property, and maximize the net family property of their spouse. The exception provided by the Law to the general rule that parties will “equalize” the value of their properties, applies where such equalization would produce unconscionable results.
In such a case, the court has the discretion to vary the equalization payment, ordering an amount payable that is greater or less than one-half of the difference between the parties’ net family properties. A spouse, former spouse or deceased spouse’s personal representative may apply to the court for a determination of any matter respecting the spouses’ entitlement to equalization of property.
“Spouse” for the purposes of the Family Law Act's property settlement provisions, means either a man and woman who are married to each other, and recent changes in the Law establish that same-sex couples may apply for division of property as well. There is more than one definition of “spouse” under the Family Law Act, and the second definition is found under the sections which govern support obligations. The definition of spouse under those sections is wider than one under the property division sections of the Act, and it includes persons living “common-law” for a three year continuous period.
Common law spouse may also indirectly apply for a division of certain specific property, as an incident to a claim for support. Another way for a common-law spouse to assert a claim to property, is to claim that the other spouse is holding certain property in trust for him or her.
These principles of law are known as “constructive trusts” and “resulting trusts”, and they may be used in order to obtain a share of property held in the other common-law spouse's name. An application for a division of Matrimonial Property may be brought when a specific event occurs, including when a divorce is granted, when the spouses are separated and there is no reasonable prospect that they will resume cohabitation, when a spouse dies, or when the spouses are cohabiting and there is a serious danger that one spouse may improvidently deplete his or her net family property.
At the same time, an application cannot be brought after the earliest of, two years after the day the marriage is terminated by divorce or judgment of nullity, six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation, and six months after the first spouse’s death.
Certain Matrimonial Property is excluded from the equalization calculations, including property that was a gift or inheritance from another person to one of the spouses, damages received from personal injury settlements by a spouse, and any property that the parties agreed by a marriage contract or pre-nuptial agreement, would be excluded from the spouse’s net family property.
THE MATRIMONIAL HOME
A Matrimonial Home is defined by Law as any 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 his or her spouse as their family residence.
Spouses can have more than one matrimonial home. The Law makes special provisions for the treatment of the Matrimonial Home, but these only apply to spouses who are married, and not to common-law spouses. It is only necessary that a spouse have an interest, and not necessarily ownership in a property, in order to have that property qualify as a Matrimonial Home.
Therefore a leased apartment may qualify as a Matrimonial Home. Regardless of which of the spouses owns the Matrimonial Home, both spouses have an equal right to its possession. Furthermore, any paragraph in a marriage contract that limits the right to possession of the Matrimonial Home by a spouse is unenforceable.
When only one of the spouses has an interest in the matrimonial home, the other spouse’s right of possession is personal as against the first spouse. This right terminates upon them ceasing to be spouses, except if a separation agreement or court order provides otherwise. The right to equal possession of the Matrimonial Home is not absolute, and in some situations, the court can order that one spouse be given exclusive possession of the home or a part of it for such period as the Court directs.
This can occur where spouses are unable to continue living together in the home and a spouse wishing to remain in the home applies for an order that the other spouse leave. In these applications, the Court will consider several factors, including the best interests of the children, the financial situation of both spouses, any written agreement between the spouses,
the availability of other accommodation and any violence by one spouse against the other or the children.
Exclusive possession orders are only available to married spouses, and not to divorced spouses. As can be seen, the Matrimonial Home is afforded special treatment, in that it is largely irrelevant if only one spouse is on the registered title. If that is the situation, then the spouse whose name is on title is legally entitled to keep the ownership of the home, but the other spouse is legally entitled to be paid one-half of the value of the home, valued as on the date of separation. If this situation exists in a common-law relationship, where the couple are not married, the non-owner spouse can only make a claim to a part of the value of the home pursuant to the doctrine of constructive trust.
DOMESTIC CONTRACTS: Separation Agreements, Marriage Contracts and Cohabitation Agreements
In many disputes occurring when the relationship is at an end, a settlement between the parties can be reached, and the terms of that setlement are usually reflected in a Separation Agreement. It is entered into by parties who have previously lived together, but are now separated.
A Separation Agreement can deal with any matter of family law. Cohabitation Agreements are normally entered into by persons who are cohabiting or are soon-to cohabit with each other. These agreements may deal with any matter that might arise during the cohabitation or a subsequent separation, except the issues of custody of, or access to their children.
Marriage Contracts are entered into by married spouses or couples who are about to get married to each other. Marriage Contracts can deal with any matter that might occur during their relationship or on their separation, except the issues of custody and access to their children.
As well, it should be noted, that any provision in a Marriage Contract which attempts to limit one or the other spouse's rights to equal possession of the Matrimonial Home, is unenforceable. However, the parties are able to provide in the Marriage Contract, that one of them will own the home upon separation, and exclude its value from the calculation of that spouse's net family property.
Obviously, same-sex married couples are also permitted to divorce, and as well, to enter into any of these domestic agreements.
COLLABORATIVE FAMILY LAW
A Collaborative Family Law matter is handled differently than the usual Family Law case. Both spouses and their lawyers must sign an agreement to cooperate with each other in attempting to resolve the dispute. No Court proceedings are to be commenced, until all attempts have been made in resolving all of the issues.
As well, the lawyers must agree that if the matter does go to court, they will not be representing the parties, and both spouses would have to retain new lawyers, if either wants to initiate court proceedings. These provisions are included in the contract, so that a resolution of the matter is encouraged.
The Collaborative Family Law process consists of several meetings where both parties and their counsel are in attendance. Both parties agree to provide full financial disclosure, and the clients, with assistance of counsel, are in charge of the meetings. As well, the parties can jointly hire experts in financial matters and child psychologists, to assist with the process.
Proceeding in this manner can be much less expensive than Court Proceedings, and therefore this may be the best way to proceed for many clients.
CHILD PROTECTION LAW IN ONTARIO
The Child and Family Services Act is the Statutory Authority in Ontario which deals with child protection proceedings. It allows the Government or its agency, the Children's Aid Society, to intervene in cases where a child’s parents are unable or unwilling to provide a minimum standard of care, where the physical well-being of a child is endangered, and where the emotional well- being of a child is in jeopardy.
Child protection proceedings differ from custody disputes between parents, in that the State is involved in the former, in an attempt to ensure the safety and the best interests of children. The process can be seen as an invasion on the rights of the family by the Government, which justifies its intervention on the basis of the protection of the best interests of the child.
It can also be viewed by the parents as a breaching of their rights to bring up a child in a traditional or customary manner. There is, at the same time, no doubt, that where there is danger to the safety of the child, that the State has a duty to intervene to protect the child. The child, of course, can be involved in the process, and take part in the proceedings more fully, especially where his or her wishes can be ascertained.
A child protection proceeding is not a criminal proceeding but is a civil
hearing. Aside from the Children’s Aid Society which represents the State, the other usual parties in a child protection proceeding are the child’s parents, and the child, if he or she is at least 12 years of age, unless the court is satisfied that being present at the hearing would cause the child emotional harm. A child under the age of 12 years is not entitled to be present at the hearing unless the court is satisfied that he or she will not suffer emotional harm by being present at the hearing and that the child is able to
understand the proceedings.
A child of any age has a right to retain a lawyer, and that lawyer is entitled to participate fully in the proceeding. The Act also enables the Court hearing the matter, to appoint a lawyer for the child from the Office of the Children's Lawyer.
NOTE: If you require legal assistance with any Family Law issue, contact
Toronto Divorce Lawyer, George J. Kubes LL.B. immediately at
(416) 926-9298 for a no-obligation consultation.
The information on this website is
intended for general information purposes only and is not intended to
constitute legal advice, nor is it a substitute for legal advice and
should not be relied on as such. You are expressly advised and
cautioned to consult with a qualified lawyer for legal advice. While
George J. Kubes, LL.B. and Kubes Law Firm have made all reasonable
efforts to ensure that the information presented on this website is
correct, there is no warranty or guarantee as to its accuracy.
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