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Know your Separation Date before you start Divorce

When a marriage ends, the date that the parties separated must be established for the purpose of determining the division of property and assets accumulated during the marriage.  Under the Family Law Act, the date of separation is referred to as the “valuation date”, with the most commonly used date being the date that “the spouses separate and there is no reasonable prospect that they will resume cohabitation.”

What if you disagree on the date of Separation (Valuation Date)?

If spouses are in disagreement as to the date of separation, the court necessarily has to make a determination by analyzing the specific facts of the situation and cannot arbitrarily choose a date of separation.

Calculating the Net Family Property and Equalization Payment

Once the date of separation is determined, the net family property of each spouse is calculated.  “Net family property” is the value of all the property that a spouse owns on the date of separation (“valuation date”), which is subject to certain exemptions and deductions for debts, liabilities, and pre-marital property.

Upon the breakdown of the marriage, each spouse is entitled to half of all property acquired during the marriage regardless of ownership.  Entitlement is based on the legal assumption that each spouse equally contributes to a marriage, whether in the form of caring for the children, managing the household, or by earning an income to cover the family’s expenses.

Pursuant to the Family Law Act, a court will deviate from the equalization of net family property when it is under the opinion that an equal division would be “unconscionable” based on a number of factors including: the duration of the marriage, whether any of the property was a gift or inheritance received by one spouse, or whether a spouse intentionally or recklessly depleted his or her net family property.

When the difference between the net family properties of each spouse is calculated, the spouse with the higher net family property pays to the spouse with the lower net family property one half of the difference. This payment is referred to as the “equalization payment”.

Determination of the date of separation upon the breakdown of a marriage is critical to the net family property calculation.  Contact a Family Lawyer who can assist you in understanding all of your rights and obligations before filing for divorce.

Call Niren and Associates at 416 222 4555 or email us at info@divorcesupport.ca.

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H1N1 Flu Vaccinations for the Kids – When Parents Disagree

With flu season back with a vengeance, many parents are struggling with the decision of whether to inoculate their children from H1N1 or Swine Flu. This has been compounded with recent reports of side effects of the vaccine, and some reports of the vaccines being administered incorrectly. What are your legal options if your co-parent disagrees with you on whether the H1N1 vaccine is for your child?

Currently there is no legislation compelling parents to vaccinate their children against swine flu. (If there was, then the refusal of one parent would immediately trigger legal consequences.) As such, in a normal home set up where two parents live together and make all decisions regarding their children, Family Law is very limited and the justice system is unable to help you force your co-parent to agree to inoculate or not inoculate your child. In this situation, it is recommended that you research the vaccination together, discuss reservations and justifications, and attempt to resolve the issue at home.

If disagreement between the parents is so extreme that it leads to a separation, then legal issues of child custody, visitation, and best interest decisions, which include medical decision making such us swine flu immunization and other types of immunization, would come into play.

In a situation where the parents are already separated, the winning decision is that of the parent that has custody. That gives the parent the power to make major decisions for the children, including medical treatment decisions.

In the case of joint custody, and there is a disagreement regarding a major decision, a lawyer would have to look at the terms of the Custody Order to see if there is provision for a vetoing power which would allow you to override their disapproval of vaccinating the child. Custody Orders are drafted to state that where two parents with joint custody cannot agree on a specific decision, the decision of one parent will prevail over the other. Usually, the parent with whom the children have physical residence will get vetoing power, but each specific family arrangement situation is different and each specific family situation would have to be reviewed separately.

As it is right now,vaccination against the H1N1 is a public health matter of great national and global concern. It is in the discretion of each parent whether or not to have their children vaccinated, based on their judgment as to what is in the best interest of the health of their children.

Julius Omware is a lawyer at Niren and Associates Family Law Practice in Toronto.

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Who Gets the Kids? Custodial Arrangements

When a couple separates they must decide how they will share their parenting rights and responsibilities of the children. Several decisions must be made including which parent has the right to make the important day-to-day decisions about the care and upbringing of the children and with which parent the children will reside.

In the absence of a court order or a provision in a separation agreement, either parent has an equal right to the custody of their children. Typically, custody of a child involves the physical care and control, as well as the decision-making authority over the child.

The Children’s Law Reform Act and the Divorce Act direct courts to determine matters relating to child custody on the sole basis of what is in the best interests of the child. In determining the child’s best interests, the court must consider several factors including the physical, emotional, and economic needs of the child.

Four Types of Child Custody

There are four main types of custody: sole, joint, shared, and split.

• Sole custody is where the child primarily resides with one parent, who is also the child’s primary caregiver and has the legal right to make all major decisions.
  
• Joint custody provides each parent with equal parental responsibility and with decision-making authority relating to the child.
  
• Shared custody allows parents to jointly exercise parenting authority with the child dividing his or her time between the respective homes, spending an equal amount of time with each parent.
  
• Split custody is where there is more than one child and the children are separated and living with different parents.

The definitions of the four custodial arrangements are not fixed and parents and/or the court may combine various aspects of different custodial arrangements to suit the particular set of circumstances for an individual family.

It is important for parents to know their custodial rights, 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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