+ What are my rights as a parent?

The family law system in Ontario is not based on parental ‘rights’. Questions about parental decision-making and parenting time are determined based on the child’s best interests. Where parents cannot agree on where a child should live or who should make the important decisions about their upbringing, Judges refer to a wide range of factors to decide how to assess what plan is in a child’s best interests.

+ Sole vs. Joint Custody — Parental Decision-making

Sole decision-making is where one parent gets to make major decisions about a child’s upbringing including about their education, health care, recreational activities and religious upbringing. Sometimes the parent with sole decision-making power has the duty to consult the other parent before making a decision.

Joint decision-making is where both parents have to agree on all major decisions about a child’s upbringing.

It’s possible to create a decision-making plan that is somewhere in between ‘sole’ and ‘joint’ decision-making.

For example some parents will divide up the major issues – one parent might decide schooling questions, while the other parent has the final say on health decisions for the child.

+ What is ‘abandonment’?

We hear this question a lot and ‘abandonment’ is not a well-defined legal concept in Ontario, but here are some practical considerations about leaving a family home or leaving children in the care of the other parent.

The law in Ontario says that every property in which a person has an interest and was ordinarily occupied by the person and their spouse as their family residence at the time of separation is a ‘matrimonial home’.

Matrimonial homes have certain protections under the law, including that if one of the spouses moves out of the home, the other spouse cannot legally change the locks to exclude them from the home.

If you are your spouse are not married, the situation can vary considerably.

If you move out of the home, leaving the children in the primary care of the other parent, over time it can create a ‘pattern’ or status quo. Judges can be hesitant to disrupt children’s living arrangements once they have been living somewhere in a stable situation for a period of time.

These are complex issues and you should get legal advice from a family lawyer about this.

+ Do I have to pay Child Support?

The answer depends on your specific circumstances as well the residence schedule for the child(ren).

Where the children live primarily with the other parent (60% of the time or more), you may have to pay the other parent Child Support depending on (i) your income and (ii) the number of children eligible for support, based on the Government of Canada’s Child Support Guidelines table.

Where the children live with both parents on a shared basis, the result of Child Support can vary.

Typically support is not paid while both spouses are living separated in the home together.

Please contact us to speak with one of our family lawyers for more information.

+ Does Child Support end at 18?

As with many of these questions, the answer is ‘it depends’ on the facts of the case.

Child Support can continue after age 18 if a child is disabled, or if they pursue full time post-secondary education. In the case of university/college, typically Child Support ends after the child completes their first degree or diploma.

+ If my Separation Agreement says I don’t have to pay Child Support, can I still end up having to pay it?

YES, it’s normal that Child Support changes over time. It may change because of changes in income, changes in where the child lives, or other factors.

Also, for Separation Agreements that waive Child Support unreasonably or are not in accordance with the Child Support Guidelines, the Family Court has the power to disregard the portion of that agreement dealing with Child Support.

Basically, Child Support is the right of the child, and the Courts always preserve the right to deal with Child Support in accordance with the law – regardless of whatever arrangement the parents might have agreed on in their Separation Agreement.

Agreements that go against the Child Support Guidelines can also make it more difficult to obtain a divorce from your spouse. Please speak with one of our family lawyers about this.

+ If I owe the other parent Child Support, but they do not claim it from me, can they claim it later on? Are there time limits?

This really depends on the facts of the case, but generally speaking, a Child Support recipient can claim support back to the point they first raised the issue with the payor, usually to a maximum of three (3) years.

But it’s not always easy for a recipient to prove they asked the payor to begin paying. Sometimes this can be proven by letters, emails or text messages.

+ If I am already paying Child Support under a Separation Agreement and my income changes, should my Child Support payment change? How does this happen?

This really depends on the situation, but generally speaking Child Support should be adjusted annually, and the parents should exchange their tax returns on an annual basis.

If the parents have a Separation Agreement, one way to update Child Support is by completing an ‘Amendment’ to their agreement.

Or, if they have a Final Order of the Family Court, there are various options to change or update support. If the parents both agree on the change, they could file a ‘Consent Motion to Change’ to get a new court order.

+ What if I am owed Child Support, but the other parent refuses to pay it? What are my options?

In most cases, if there is a Separation Agreement in place requiring one party to pay the other support, the recipient can generally file that agreement with the Family Court, which allows the support to be enforced through the Ontario Family Responsibility Office (FRO).

FRO has significant powers to collect support from payors, including the garnishment of wages.

But FRO can only enforce support if the wording in the agreement is clear. This is why it’s important to have a lawyer help you with your Separation Agreement.

+ Do I have to pay Spousal Support?

Again this depends on the circumstances of your specific case. Whether the other spouse has an entitlement to Spousal Support can depend on the roles played by each of you in the relationship, whether the other spouse has a need for support, and many other factors. Where there is an entitlement to Spousal Support, lawyers and Judges use a tool called the Spousal Support Advisory Guidelines (SSAGs) to calculate a range of reasonable support amounts. Each spouse’s income, the length of their relationship and other factors can affect the outcome under the SSAGs.

+ How long is Spousal Support paid for?

There are several ways the duration of support might be determined under the Spousal Support Advisory Guidelines.

It may depend on how long the spouses lived together, how many years until the youngest child finishes highschool, or in the case of very long relationships (20+ years) or in the case of older spouses, support can sometimes be indefinite.

Indefinite doesn’t necessarily mean that support is paid forever. It just means that the end date of support is not currently known.

Indefinite means that the support payment continues until either (i) it’s changed because of a (material) change in circumstances, or (ii) support is eventually terminated.

When negotiating an end date for Spousal Support, there are a lot of considerations – it’s very important to get legal advice about this.

+ Rather than paying Spousal Support over time, can it be paid as a one-time lump sum?

Yes although this is relatively rare, except after very short relationships.

The reason why it’s rare is because it’s often risky or doesn’t make sense in the circumstances.

There are MANY things to take into consideration before agreeing to pay a one-time lump sum of Spousal Support and it’s essential to get legal advice about your specific situation.

+ If I retire, does my Spousal Support payment change?

Retirement is one of the most complex issues in Spousal Support. You definitely need to speak to a family lawyer about this.

+ I’m married. What happens to my property if we separate?

In Ontario, married spouses who separate have the option to make a claim for ‘Equalization’ of their Net Family Property. Net Family Property means a spouse’s ‘net worth’ on the day they separate, typically their assets minus their debts, subject to certain exceptions. Most spouses do not have identical net worth on the day they separate. They often own different things – one might have a pension, while the other has an RRSP. One might have an ATV in their name, while the other has a boat. In a nutshell, ‘equalization’ means that the spouse with the higher net worth makes a payment to the spouse with the lower net worth, equalizing what they built together during the marriage, again subject to some exceptions. There may be an adjustment for what a spouse brought into the marriage (whether asset or debt). Some property is excluded, even if it was received during the marriage. There are time limits to equalize property, so it’s important to get legal advice from a family lawyer about this after a separation.

+ Does literally every asset and debt have to be divided, to equalize property?

NO, equalization means one overall payment to equalize the difference between the assets and debts the spouses had on the separation date.

Equalization does not necessarily mean having to divide any particular property, although for jointly owned assets and debts (for example a joint bank account), the spouses will need to decide how to divide that between them and what to do with the account afterwards.

+ If my former spouse has a debt in their own name, will I become responsible for that debt if we separate?

If you are not a borrower, co-signer or guarantor on their debt (i.e. the debt is solely in the other party’s name), then the debt remains that person’s responsibility.

But their sole debt might affect you in other ways, including on the equalization of property.

A spouse’s ‘net family property’ is all of their assets at separation, less all of their debts (subject to certain exceptions).

So all other things being equal, when their sole debt is taken into account, it will affect the result on equalization. If one spouse has a lot of debt and the other has a lot of assets, the asset-owning spouse may end up owing the indebted spouse an equalization payment.

+ Why does the date of separation matter?

The separation date matters because all marital property is valued and ‘equalized’ as of the date of separation.

This means that when assembling your financial information, you will need to get proof of each asset and debts as of the separation date.

Values of assets and debts can vary over time – think about an investment portfolio: Its value might change every day, depending on the stock market.

So different separation dates can mean big changes to the equalization payment one spouses owes the other. Sometimes one side might try to manipulate the separation date to gain a better outcome on equalization or other issues.

The separation date can also affect the time limit for claiming equalization.

+ I am not married. We lived together common-law. What will happen to my property if we separate?

Property division for common-law couples can be just as complex or even more complex than for married couples.

There are also time limits for non-married spouses to make property claims. It’s important you get legal advice from a family lawyer after separating.