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TORONTO CANADA
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Divorce In Canada On The Increase |
Author: George J. Kubes, B.A., LL.B.
More than 50% of marriages in Canada end in divorce. The most utilized ground of obtaining a divorce is the act of a couple being separated from each other, with the minimum length of time required, being a period of one year. In essence, we have a system which allows divorce without blaming one party or the other for the marriage breakdown, meaning that the wife or the husband is able to get out of the marriage for any reason, as long as they have been separated for a period of one year.
The one-year period starts to run when the husband or the wife decides that the marriage is over, and begins to live separate and apart in the sense of withdrawing from marital duties, vis-a-vis the other party, even if they still continue to live under the same roof. They do not have to live physically in different locations for the one year period to begin to run. A separation "under the same roof" can happen where sexual intercourse between the couple has ceased, the couple live their own lives and take care of themselves, and to the outside world as well as to themselves, it is clear that their relationship has ended. Where one of the parties moves out of the matrimonial home, this will be additional evidence that the relationship has ended and that they are legally separated. There is no legal document necessary to prove that the couple has separated. Many couples, however, have a Separation Agreement prepared to deal with various issues. The Separation Agreement is a legal document which formally sets out the parties' agreement on matters arising from the couple's separation, including custody arrangements relating to children, financial support for one of the spouses and the children, settlement of the spouses&' property claims, and possession of the couple's matrimonial home.
When separation occurs, the most stressful issue can be the determination of the residency and legal custody of the children of the couple. The custody of any children is to be determined by having regard to the best interests of the children. The couple and any Court in Ontario are supposed to have regard to the needs and circumstances of the child, including emotional ties between the child and his or her mother or father, the views and preferences of the child where such views and preferences can be ascertained, the ability and willingness of each parent to provide the child with guidance and education, the necessaries of life and any special needs of the child, as well as to other factors.
Where the parents do not agree as to which parent shall have custody, custody assessments may be conducted by psychologists, psychiatrists or social workers who are retained by the parties to provide recommendations to the Court, as to the best interests of the children, and where the children should reside. In many cases, the recommendation is that both parties should have joint custody, which may mean that the child will live with each of the parents at various times.
In cases where the Court makes a sole custody Order, the children will reside with one parent and the other parent shall have access or visitation rights on pre-determined days and times. Even where the parent has only visitation rights, however, he or she is entitled to know about and be involved in, the childrens' upbringing. This non-custodial parent also has the right to have an input into crucial decisions which affect the educational, physical, religious, social, and moral development of their children.
The law in Canada stipulates further, that all children up to a certain age have the right to financial support from their parents. When the parents have separated, the parent who does not have custody of the children will usually have to pay child support to the parent who has custody. Even where a couple was never married to each other, the parents have to financially support the children. As well, support must be paid by a parent who is not the biological parent of the children, but had become a parent to the children by living with the family. The amount of the child support is calculated by looking at the amount of money the non-custodial parent earns annually, and the number of dependant children the couple has.
In the event a parent is obligated to pay child support, and he or she fails to do so, the Government of Ontario has created an Office to deal with enforcement of this debt. This Office is called the Family Responsibility Office. The parent making the child support payments, makes them to this Office, which then sends the money to the parent who has custody of the children. If the payments to be made by the parent are in default, this Office will take legal and other actions against that parent to enforce the Court Order or Agreement to pay child support. These measures are often draconian and it is therefore advisable to make child support payments on time.
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