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Grounds For Divorce In Canada: One of Three Conditions

Under the Divorce Act of Canada, there is a single ground for divorce called “breakdown of marriage”. This must be established by showing the existence of one or more of only three of the following conditions:

• The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceedings and were living separate and apart at the commencement of the proceedings.
• The other spouse has committed adultery.
• The other spouse has subjected the spouse filing the Application to physical or mental cruelty of such a kind and degree as to render intolerable any continued cohabitation of the spouses.

Even though the above three conditions of marital breakdown are available, in practice the one commonly used is living separate and apart for at least one year preceding the hearing of the Application for Divorce. Adultery is rarely used as is cruelty.

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Enforcement of Support Orders: When the Payer lives Outside of Ontario

When couples separate after ending a relationship, one partner may move to a different province or even a different country.  Relocating outside of Ontario can create a challenge when obtaining, enforcing, or varying a child or spousal support order.

The Interjurisdictional Support Order Unit of the Family Responsibility Office administers the Interjurisdictional Support Order Act, 2002 (“ISO Act”).  Under the ISO Act, support orders issued by a court outside of Ontario can be registered and enforced with a court in Ontario.

A key element of the ISO Act is that a hearing is held in one jurisdiction, whereby the applicant (the personal applying for the support order) can apply to obtain or change a support order in a reciprocating jurisdiction without having to appear in person.

A “reciprocal jurisdiction” is a jurisdiction that has entered into an arrangement with Ontario to enforce support orders.  All Canadian provinces and territories, the United States of America, and several other countries, including the United Kingdom, Figi, South Africa, Switzerland, and Barbados, are reciprocating jurisdictions.

To commence the application process, the applicant must complete and submit an application for support to the ISO Unit office.  The office reviews the application and sends a copy to the proper authority in the reciprocating jurisdiction nearest to the residence of the respondent.  The application is then forwarded to the appropriate court and a court date is set.  The respondent is notified about the proceedings and is provided with an opportunity to file a response.

At a hearing, after reviewing the evidence submitted, a judge will render a decision and make an order on the issue of support.  Once registered, the order will be of same force and effect as if rendered by an Ontario court for the purposes of enforcement.

The ISO application procedure can involve complex questions about which jurisdiction’s laws apply and how the various laws can affect you.  Contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca to speak with an experienced family law and divorce lawyer who can advise you about your rights and guide you through the process of obtaining support.

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Child Visitation Rights: Custody and Access for Children when Separating

CUSTODY vs. ACCESS or VISITATION

When parents separate the continued care and welfare of the children become major issues.  Unless all parenting rights and responsibilities for the children are agreed upon between the parents to be equally shared, typically one parent will keep the majority of the day-to-day responsibilities, decision-making rights, and the physical care of the children (“custody”).  The other parent will have the right to visit with the children and the right to be kept informed about the children’s health, education, and welfare (“access”).

CHILD’S BEST INTERESTS

When parents who separate cannot agree on the parenting arrangements for the children, they can go to a court have a judge make the decision.  Under the Divorce Act and the Children’s Law Reform Act, a judge must decide “the best interests of the child” when making an order for custody and access.  The judge must consider a number of factors including: the emotional ties between the child and each parent, proposed plans for the child, stability of the home environment, each parent’s capabilities and willingness to parent, and, depending on the age and maturity of the child, the child’s wishes.

ACCESS TERMS

Once the judge has determined that it is in the best interests of the child that an access order should be made, the judge must then focus on the terms of access, including: overnight and weekend periods of stay, holiday schedules, and vacation.  The terms of access can be flexible (for example, “liberal and generous”) or structured (for example, “alternate weekends”), depending on the facts of the specific case.

SUPERVISED vs. UNSUPERVISED ACCESS

Access is normally unsupervised, however, where there are genuine and well-founded concerns about the safety of the children and/or for the custodial parent, the court can require visits or exchanges with the children to be “supervised”.  Supervised access is a restrictive form of access where the visits are monitored by the custodial parent, a third-party, or a Supervised Access Program, to ensure the safety of all participants.

Supervised access is typically not a permanent provision ordered by the court, instead it usually operates as temporary measure to resolve any difficulties or concerns with access.

When considering custody and access issues, it is important to contact a Family Lawyer who can advise you as to your rights and that of the best interests of your children. Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.

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Divorce in Ontario: The Matrimonial Home Special Status in Divorce

“Matrimonial Home”  or commonly known as the “Family Home” is defined as any family property in which a person has an interest and that is or was ordinarily occupied by the person and his/her spouse as their “family residence”.

There can be more than one matrimonial home, going by the above definition, and depending on the living arrangements of each couple.
It must be noted that the protection of the entitlement to the matrimonial home under Part II of the Family Law Act in Ontario is only given to married spouses and not common law spouses.

A party only needs to show an “interest” in the property, not necessarily ownership of it. For instance, if a couple lives in a leased property, the leased premises would be a matrimonial home. However, a mere permission or license to occupy a property does not create sufficient interest in that property.

If a corporation holds title to the matrimonial home, the ownership of a share or shares of that corporation, or of an interest in a share or shares in that corporation entitling the owner to occupy a housing unit owned by the corporation, is deemed to be a sufficient interest in the property for pursposes of division of the value of the matrimonial home equally between the spouses.

Property can be real or personal. For instance, a trailer or a house-boat can be a matrimonial home depending on the prevailing facts.

If the parties own two properties, one of which was originally occupied by them as their family residence but at separation, is rented out to tenants, and the other a home which at the time of separation, is used as their family residence, only the latter is considered a matrimonial home for purposes of property division.

When considering a divorce in Ontario, it is important to contact an experienced Family law and divorce lawyer who can advise you about your rights concerning the matrimonial home and other issues of property division. Contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

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Child-Related Expenses in Addition to Child Support

Under Canadian Federal and Provincial laws, children are entitled to financial support from both parents even if the parents are separated or divorced. In addition to child support, there may be other child-related expenses for which both parents may be responsible.

If you are Divorced

The Federal Child Support Guidelines are used when parents are legally married to one another and are seeking a divorce.

If you are Separated

Ontario’s Child Support Guidelines are used when parents were never married to one another or if they are currently married but are only seeking separation and not a divorce.

Child Support Amounts

Under the Federal Child Support Guidelinesand Ontario’s Child Support Guidelines, children are to benefit from the financial means of both parents just as they would if the parents remain together. Child support amounts are fixed in accordance with the payor’s annual income and the number of children for who support is paid.

Additional Support

In addition to providing an amount in child support, Section 7 of the Federal Child Support Guidelines and Section 7 of Ontario’s Child Support Guidelines allow the court to also provide for an amount to cover all or any portion of what is referred to as the “special or extraordinary expenses” of the child.

There are six different types of “special or extraordinary expenses” as set out in Section 7 of the guidelines:

• child care expenses;
• medical and dental insurance premiums;
• health-related expenses;
• extraordinary primary and secondary school education or educational program expenses;
• post-secondary education; and
• extraordinary expenses for extracurricular activities

In Krislock v. Krislock, the court found that in applying for the other parent’s contribution to a “special or extraordinary expense”, the applicant parent must show that the child’s expense will or has already been incurred and that the expense falls within the scope of Section 7 of the guidelines.

In order for an expense to qualify as a “special or extraordinary expense”, the court must not only find that the expense fits into one of the above listed categories, but also must consider:

• the necessity of the expense in relation to the child’s best interests; and
• the reasonableness of the expense in relation to the means of the parents and those of the child and to the family’s spending pattern prior to separating.

The “special or extraordinary expenses” provision is intended to ensure that if either parent has or will incur an additional expense for the child’s specific needs and/or participation in a specific activity found to be in the child’s best interests that both parents must share in the cost associated with the additional expense.

For More Information

For more information about Child Support and special expenses, please contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

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Separation from your Spouse But Under The Same Roof

Legal Separation need not necessarily exist in terms of actual physical separation and different residential living arrangements. Separation may also exist where the attitude of the parties towards each other suggests that they are separated. A couple may be separated but living under the same roof.

Great caution, however must be taken in arriving at this conclusion. It should be arrived at only after due consideration is given to the available facts and circumstances prevailing in the home, and to a lesser extent, in the community. The evidence that such a couple are living separate and apart must be “clear and convincing”. The test is not what the public believes but rather what all the available evidence and circumstances disclose the actual state of the marriage to be.

The Ontario Court of Appeal held in Mayberry-vs-Mayberry(1971) and in Calder-vs-Calder(1974) that spouses may be living separate and apart under the same roof where there has been a mutual repudiation of the marriage relationship, producing a permanent breakdown of the relationship.

The court also held that a divorce should be granted on evidence, for instance, which indicated that there was virtually no communication between the spouses; they ate separate meals; occupied separate bedrooms and did not share social activities.

Although the cessation of sexual relations provides strong evidence of living separate and apart, it does not in itself conclusively decide the issue as was held in Cridge-vs-Cridge(1973) and Oswell-vs-Oswell(1990).

If you and your spouse are considering separation or divorce contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca

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