Introduction to Family Law

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What’s does “family law” cover?

The term “family law” covers such things as:

• Spousal support: What one spouse (married or common law) pays to the other, and for how long, once the relationship has broken up.
• Child support: How much one parent pays the other parent to help support a child and how much each parent should contribute to certain child-related expenses.
• Custody and access: Who has the decision making authority for a child, usually indicated by being the parent with whom the child primarily lives with after separation, and how often, where, and when the other parent sees the child.
• Property rights for married couples: How married couples handle the property, debts, and assets accumulated during the marriage.
• Property rights for common law couples: How common law couples handle the property, debts, and assets accumulated during the relationship.

Community Legal Education Ontario (CLEO)
CLEO has a great site for a lot of family law information on both general and specific matters. And they have the terrific Steps in a Family Law Case for a step-by-step explanation of how to navigate the family court system if you’re in court dealing with a family law issue.

• Where do I find the “law”?
• Where to get more information
• The differences between common law relationships and marriage
• Child support
• Spousal support
• Custody and access
• Property issues for married couples in Ontario
• Property issues for common law couples in Ontario
• Pensions

Where do I find “the law”?

The “law” dealing with family law issues isn’t found in one place. Here are the most commonly referred to places to find the “law”.

• There’s legislation:
  • Divorce Act
  • Family Law Act
  • Children’s Law Reform Act
• There are Regulations, specifically the Child Support Guidelines that the legislation makes mandatory.
• There are published guidelines that aren’t either legislation or regulation, specifically The Spousal Support Advisory Guidelines that the courts have made almost mandatory.
• And there’s judge-made law, found in reported decision that judges have to follow if set by the Court of Appeal or the Supreme Court of Canada. You can find reported judicial decisions at CanLII. The CanLII Primer is a great guide to help you search for law through CanLII.

Where to get more information

Call up an experienced family law lawyer near you and ask about the cost for a one-hour consultation. Bring a list of your questions to give the lawyer, and be prepared to set out your situation in a brief and clear way. If you only want a consultation and have no intention of hiring the lawyer, it’s best to say that when setting up the appointment so there are no misunderstandings.

If you’re already in court, or about to be, then check out the terrific Steps in a Family Law Case  by CLEO for a step-by-step explanation of how to navigate the family court system if you’re dealing with a family law issue.

And if you want information about representing yourself generally, check out the Blog and SRL (Self Represented Litigant) Resources at the National Self-Represented Litigants Project site.

Of course, you can always set up an appointment for a phone call or email a question to The Family Law Coach. Check out our full list of Services.

The difference between common law relationships and marriage

Either you’re married or you’re not. To be married, you went through a formal ceremony and received a Certificate of Marriage. In Canada, a marriage is between two people whether they’re of the same sex or not.

A common law relationship is one where the parties live in a marriage-like arrangement but never got the Certificate. For practical purposes, the same, or substantially the same, laws cover couples in a common law relationship or a marriage. But there are two exceptions: property rights and whether you qualify for spousal support.

In Ontario’s Family Law Act, and in comparable legislation in some other provinces, property rights are only for married couples, not common law couples. In the other provinces, it doesn’t make a difference.

If you’re married, you’re eligible for spousal support as soon as you separate no matter where you live in Canada, no matter how long you were married. (But being “eligible” doesn’t mean you’ll get it, or get very much if the marriage is very short.) If you separate from a common law relationship, you qualify for spousal support right away if you’ve lived together for a minimum of 3 years or if you’ve have a child with your partner and the relationship is “of some permanence.”

When it comes to matters such as income taxes, insurance policies, division of pension, etc., a common law relationship is generally treated the same as a married relationship. However, there may be differences in the way a “common law relationship” is defined in different circumstances. If this is of importance to you, be sure to find out how the term is defined for the situation you’re concerned about.

Child support

In Canada we have the Child Support Guidelines (CSG). While these are Federal regulations, and apply strictly only to child support being ordered under the Divorce Act, each of the provinces (other than Quebec, which has it’s own guidelines) have enacted their own version in a way that mirrors the wording of the Federal version. So we can just refer to the Guidelines or the CSG without worrying about which ones we mean.

But the word “Guidelines is a trick. The CSG aren’t “guidelines” at all – they’re fully mandatory. They don’t “help” a judge decide what to do. They must be applied by the judge.

Essentially, the CSG provide a monthly support Table showing an annual income down the left side and a row for the number of children being supported across the top. You find the income of the support payor and the number of children being supported, and you get the amount of monthly support to be paid. An easy way to calculate the amount of child support is to check out the Federal Government’s Child Support Look-up Guidelines.

For the Table amount of monthly child support, only the income of the support payor counts.

Child support is the amount a separated parent must pay to the parent with the children as his or her share of the children’s basic expenses. The figure is set to represent a package of expenses that a person in an intact family, with the same income and number of children would be spending, on average, as his or her share of the family expenses for the children. The parent receiving the child support is to cover the rest of the children’s expenses. Apart from some regional differences based upon the cost of living, all Canadian support payors now pay the same amount for anyone with the same income and the same number of children.

There are also special expenses for children that are shared in proportion to the incomes of each parent. (These are often referred to as “s. 7 expenses” because they’re set out in s. 7 of the CSG.) These are paid as an addition to the Table amount.

All child support payments are made out of after-tax dollars. They can’t be deducted from the payor’s income nor included in the recipient’s income for tax purposes.

If there is more than one child and one or more lives with each parent (“split custody”), the parent with the higher income pays to the parent with the lower income the difference between the 2 Table amounts. Also, if a child is with one of the parent for more than 40% of the time (“shared custody”), there is a more complicated arrangement, which usually works out pretty closely to, but less than, the same sort of set-off as with split custody.

The CSG has quite detailed provisions to deal with the question of just what an “income” is. Especially because child support is deemed to be the right of the child, the CSG wants to be sure it’s difficult to “game the system” or find ways to pay less than you should. So it sets out ways to give the judge discretion to “impute” or “deem” an income where the payor doesn’t have a regular pay cheque, is on commission, earns money “under the table”, has a second job, gets an artificially low income from a family business, has low pay but gets stock options, etc. As with anything else, if this is a matter of concern to you, check with a lawyer.

Spousal support

The Spousal Support Advisory Guidelines (the SSAG) aren’t part of any legislation or regulations. They’re the creation of a committee of academics and practitioners and are intended to show what the courts were actually awarding as spousal support under certain circumstances so we could get some sort of commonly accepted range of payments.

Over the years the SSAG have become the accepted starting place to figure out the amount of spousal support to be paid in various situations. The SSAG shows a Low Range, Mid Range, and High Range figure, for support. Most court orders and negotiated settlements fit into one of those ranges with the majority of orders and agreements being in the Mid Range.

The SSAG takes into consideration the incomes and ages of both parties, the length of their relationship, and whether there are children and child support being paid. The SSAG also suggest a period for how long the support should be paid. Lawyers and judges use special software to work this out, but there is a “lite” version available to the public at MySupportCalculator.ca that’s well worth checking out.

The Rule of 65 says that if the age of the recipient plus the number of years of the relationship total less than 65, the SSAG will set out a range for how long the spousal support should be paid. If the total is over 65, then the duration for the payment is “indefinite”. That doesn’t mean for life, but it means that there’s no set range and either the parties or the court will work out a duration.

There’re a lot of technical aspects to the SSAG, and you should check with a lawyer if you have a particular question concerning anything in them. You can get a pretty good overview of the SSAG from Clicklaw. That website is specific to British Columbia, but the comments apply to most cases in Ontario.

The University of Toronto Faculty of Law hosts the most authoritative site for SSAG information. It contains a lot of material but isn’t up to date. However, you can locate and download a series of PowerPoint slides from a talk given by Professors Carol Rogerson and Rollie Thompson in 2015, “Ten Years of the SSAG”, to get the most current information they have listed. These two professors are the key people behind the creation of and the revisions to the SSAG, and the foremost scholars on the topic. The slides can be found under Section 4, titled “Advisory Guidelines Case Law Updates and Commentary”.

Custody and access

“Custody” gives a person the rights and responsibilities to care for a child and to be the prime decision maker for that child. “Access” is the time the other parent has with the child.

When parents separate, or were never together in the first place, they need to work out which one of them will have custody and the terms of access for the other parent. Until that’s worked out, or there is a court order, both parents have custody. There are cases where parents who get along and can work together in the best interests of the child decide to share custody. This is called “joint custody” or “co-parenting”, but even here it’s a good idea to set out which parent has the final decision making authority when there’s a disagreement, e.g. who has the final call for medical, education, or religious matters.

Most of the problems regarding children in family law revolve around the question of “access”. If the children live with one parent and the other has access, you need to spell out when that access begins and when it ends so everyone has the same expectations about picking up and dropping the child off.

For example, saying that the parents will share Christmas isn’t good enough, and requires more thought. When does the Christmas access begin: before Christmas Eve, first thing Christmas morning, or after presents are opened at the custodial parent’s home? And when does it end: at the end of Boxing Day, or bedtime Christmas day? Should that alternate from year to year or should it stay the same so the kids will always be at their grandparents’ home for Christmas dinner, as used to be the case before the separation?

Additionally other people such as grandparents and step-parents can apply for custody or access.

The Divorce Act, ss. 16 & 17 deals with custody and access for married couples throughout Canada and the Children’s Law Reform Act, Part III deals with custody and access issues in Ontario for married people and everyone else.

Property issues for married couples in Ontario

If you’re married and separate in Ontario, property in general is dealt with under the Family Law Act Part 1 and issues relating to the “matrimonial home” are dealt with in Part II. (See below for property rights for common law couples.)

Ontario doesn’t have a shared property, or community property, arrangement – it has a debtor-creditor arrangement. That means that each person continues to own whatever is theirs after separation and the property itself isn’t divided, unless it’s jointly owned.

However, the net value of the growth of each spouse’s property during the marriage (their “net family property” or NFP) is calculated and the person with the higher net growth during the marriage must pay half of the difference to the other person to “equalize” the overall growth in the family’s assets during the marriage. This payment is called the “equalization payment”.

A spouse’s NFP is the value of the overall increase in value of what they owned and owed between the date of their marriage and the date of their separation, with certain deductions and exclusions. The value of things isn’t their cost, but what a thing might be worth if it was sold on those dates. So things like real estate, art, antiques, vehicles, stock options, shares in public or private companies, etc., all need to be valued. This creates a snapshot of your net worth at the date of marriage and at the date of your separation. The difference in value, after certain exclusions, is your NFP. If your net value has gone down since marriage, your NFP is valued at $0. It can’t be a negative figure.

In figuring out what you own and owe you need to consider potential debts, such as unpaid income taxes, or pending law suits, at the key dates.

To arrive at your NFP you:

1. Calculate the value of what you own at the date of separation
2. Calculate the value of what you owe at the date of separation
3. Subtract (b) from (a) to get your separation date value, also called the “valuation date” value
4. Calculate the value of anything owned at separation that was received as a gift or inheritance, or from certain insurance or personal injury claims – use the separation date value for those items
5. Exclude (d) from (c)
6. Then calculate your net worth at the date of your marriage using values from that time (the value of what you owned at the date of marriage less the value of what you owed at that time)
7. Deduct (f) from (e) to get your NFP

If, when you separate, you’re still living in the same home you lived in at the date of the marriage, then you can’t deduct the value of that home as a marriage date deduction. Not many think this is fair, but it’s the law.

After you deduct the smaller NFP from the larger one you end up with a figure. Divide that in half and the spouse with the larger NFP has to pay that to the spouse with the smaller NFP as the equalization payment. That will end up equalizing the overall growth in family assets without regard to whose assets grew the most. The person who brought more economic value into the marriage gets to keep that, because only the growth after marriage and before separation is valued and divided.

Agreeing to the various values is often a problem. Figuring out a way to make the equalization payment may also be a problem. Sometimes the family home needs to be sold just to make that payment. Other times people may agree that one person can stay

There are certain rights about remaining in the matrimonial home in and the parties need to figure out how to deal with that property. Should one party be able to live in it for a period of time? Who will pay for the upkeep during that period? When should it be sold? Etc. Etc.

Keep in mind that while everything is valued as at the date of separation, if there’s something owned jointly by the parties, such as a house or some investments, then any change in its value continues to be shared after separation, because each side continues to own half of it anyway.

But if there’s an asset in one spouse’s name, the growth or drop in value of that after separation is entirely for the owner and isn’t shared or divided. In those cases, there are often court fights over whether the person in whose name the asset is registered is the sole owner or only just holding it in trust for both parties jointly.

There’re also cases where one spouse’s parents gave money for the purchase of a home that was put into the names of the 2 spouses and the issue is whether that was a gift or if the parents should be repaid.

If there is any issue about how the equalization payments to be made, you’re wise to consult a lawyer.

Property issues for common law couples in Ontario

In Ontario the Family Law Act doesn’t cover non-married couples. However, many couples who don’t get legally married treat their assets as though they are married.

So, in 2011 the Supreme Court of Canada decided the case of Kerr v. Baranow, and created a new concept: a joint family venture. Now, if you can show an asset is a “joint family venture,” then the court can give a monetary award or an ownership interest in property to the non-owning party. Depending on the facts of the case, the interest to be given if there was a joint family venture could be any amount from a very small percentage to full ownership.

For there to be a joint family venture the court will look at:

1. Mutual effort regarding family decisions, including having and raising children
2. The economic integration of the family’s money. Were there joint bank accounts or a rigorous separation of funds?
3. The priority given to the family by the parties. Did you plan their financial future together? Did you use one party’s income so the other party’s income could build a retirement fund? Did you give up employment because of the other party’s career or to raise children?
4. The actual intent of the owner. Was the owner clear that this would never be shared or did he or she say this was “our” home, or an investment for “our” future? Did they consider themselves as being “equivalent to married”?

The court has to take into consideration that in a relationship it’s usually the case that there are reciprocal benefits, so that there may not be any unjust enrichment that creates a joint family venture. For example, if a mother of two moves into the home and that mother then does work for the home, and contributes financially, and receives “free” room and board for herself and the children, does that mean there was a joint family venture or just an exchange of benefits?

While the creation of the joint family venture concept is a big move forward for common law couples, it’s not as good as in those provinces where common law couples have the same rights regarding property as married couples. And it certainly isn’t an easy thing to prove if it’s disputed.

Pensions

In Ontario, pensions administered by the Federal government and the provincial government (these are two separate things) can be divided when spouses (common law or married) separated.

You fill in some forms and the pension plan administrator will send to you a Family Law Value figure showing the value of the pension for family law purposes. You can then arrange for the plan member to buy out the non-member or have the value of the pension acquired during the marriage or relationship divided. Most parties do the division. It’s easy enough for you to do on your own.[/thrive_lead_lock] The Financial Services Commission of Ontario (FISCO) operates a really good website setting out the information anyone needs to understand the pension division rules upon the breakdown of a spousal relationship.

The FISCO site has a general overview with a FAQ section. Each of the Forms has a User Guide and a FAQ section.

In most cases you should be able to have the pension divided yourself. But if you’re having difficulty getting this done, check with a lawyer.