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A look back at the History of Divorce in Canada
As 2009 comes to a close, it is a good time to reflect back on how far we have come in terms of Family and Divorce Law
In the early years of Canada’s infancy before and after Confederation obtaining a divorce was extremely complicated and difficult to discourage the act itself.
There was no such thing as divorce court, and former Prime Minister Sir John A. Macdonald once said, “the establishment of a divorce court would mean cheap and easy divorces, which would lead to a great laxity in the marriage relation. I hope it may be long before we have anything of that kind in Canada.”
Divorce was subject to intense parliamentary scrutinization, and each individual case was to be read three times in the House of Commons as well as be investigated by a parliamentary committee. Indeed, these processes made getting a divorce extremely problematic and time consuming as only four divorces were ever wagered in Canada from 1840 to 1867, and only three of those were ever granted.
Before World War I, Canada had the lowest divorce rate in the western world and only three provinces had divorce courts, with three more introducing them during the war.
In 1960 a divorce cost $2500. This meant only the very wealthy could afford it until 1968, when Parliament introduced federal divorce laws through the Divorce Act. The Divorce Act added more acceptable reasons to divorce, including permanent marriage breakdown, abuse, imprisonment and if the couple was separated for at least three years. These grounds were equally available for both men and women.
The Act was reformed with the 1985 Divorce Act, which also changed the minimum separation time to one year, and allowed for parties to file jointly.
In 2004, the Divorce Act was ruled unconstitutional because of the wording, “either a man or a woman who are married to each other” with regards to what defines a “spouse” and was later rectified to include same-sex couples.
If you are considering Divorce or Separation, feel free to email us confidentially at info@divorcesupport.ca or call us at 416 222 4555 and Happy New Year!
Your Child’s Religious Upbringing during Divorce
Religious beliefs or the lack thereof can be at the core of a family’s entire value system. Religion is a passionately debated topic and can be extremely important to each parent. It could create a hefty argument if conflicting beliefs are being pushed on a child that do not mesh with what the other parent wants.
Child Custody is the responsibility and right to make decisions in the important elements involved in a child’s upbringing, such as their schooling, medial treatment and their religion. Custody is not to be confused with access, which is typically what the non-custody parent has. While the parent with custody is obligated to tell the parent with access about certain matters, and the person with access has the right to ask. However, the person with access does not have the right to make these large decisions. Because disagreements with regards to larger issues like these will ultimately be able to be decided by the parent who has custody, a marriage contract might be an option that can mitigate the outcome of a less than desirable plan for the children in the future
In a cohabitation agreement, marriage contract or prenuptial agreement, parents can agree on the religious upbringing of their children, as well as a other important decisions. These types of agreements don’t only lay out the groundwork for financial agreements in the case of a divorce, they can also protect your interests with regards to more important things like religion, which can be very helpful for planning ahead due to the increasing frequency and prevalence of interfaith marriages.
Filed in Child Custody in Ontario, Child Support, Cohabitation Agreements, Divorce, Divorce Lawyer •
Determining Child Support Obligations. Who Pays and How Much?
Parents have a legal responsibility to financially support their dependent children and dependent children have a right to receive financial support from their parents. A “dependent” child is a child under the age of majority who is neither married nor living independently. “Dependent” children can also include those over the age of majority who are either full-time students or are unable to become self-sufficient due to illness or a disability.
Obligation to Pay Child Support
Typically, when one parent has the primary responsibility for the day-to-day care and expenses of raising a child, the other parent must assist with those expenses by paying money to the parent with whom the child primarily resides.
Relevant Legislation
The amount of child support payable for a dependent child is established pursuant to the Child Support Guidelines. The Child Support Guidelines were established in 1997 by the federal government and have been adopted by the Ontario government. The Child Support Guidelines set out a parent’s monthly child support obligations based on the support paying parent’s gross annual income and the number of children entitled to support. The Child Support Guidelines were created to establish a fair standard of support for children and to reduce conflict and tension between parents by making the calculation of child support more objective.
Imputing Income
A court may impute income to a parent who either fails to file responding materials to an application for support, including an Answer and/or financial disclosure, necessary to determine income, pursuant to section 19 of the Child Support Guidelines. A court may also impute income to a parent who is intentionally underemployed or unemployed and has not made reasonable efforts to seek employment. When imputing income the court takes into consideration several factors including the age, education, work experience, skills, and capability of the paying parent, as well as that parent’s work and earning history.
Exception to the General Rule
Under section 10 of the Child Support Guidelines there is an exception to the application of the Guideline amount of child support payable referred to as “undue hardship”, where a parent may request a judge to order a different amount of child support due to financial constraints. A number of circumstances are eligible for a claim of “undue hardship” including a paying parent’s high level of debt incurred to support the child and a paying parent’s unusually high expenses in relation to exercising access to the child.
To meet the burden of proof of “undue hardship” in any case is challenging. Even if a judge concedes that the child support amount payable would cause the paying parent hardship, a finding of “undue hardship” and, as a result, varying the amount of child support payable, is an uncommon occurrence.
For More Information
For more information about Child Support, please contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca.
Filed in Child Support • Tags: Child Support Guidelines
Cohabitation Agreements for Common Law Couples in Ontario
The definition of a common law relationship in Ontario is that you have either lived with your significant other for three years or you are in some kind of permanent relationship together and have a child. There is no legal paperwork needed to establish a common-law relationship like in a marriage. Some provinces, like Ontario, require 3 years of continuous cohabitation, meaning a short-term breakup can sometimes ruin this continuity. Other provinces have no such requirements.
Couples who live together, or cohabitate, but are not married, whether heterosexual or same sex couples, are not included in the section of Ontario’s Family Law Act that states property accumulated during the marriage must be divided. For one person to make a claim for the division of property or to remain in the matrimonial home, they must be legally married to the person. Common law spouses can also be compelled to testify against each other in court, unlike married couples.
Cohabitation is defined by several factors in the eyes of a judge. Some of these factors include whether or not you were financially interdependent, whether or not you acted as a couple in social settings, whether or not your relationship was intimate, and whether or not you shared some kind of shelter or home.
Common law partners are able to apply for spousal support in the case of the dissolution of the partnership just like a married person. While there is now no set time limit to apply in Ontario (it used to be two years) in other provinces there are limits.
A cohabitation agreement can help protect both parties in a common law situation. It can help prevent litigation and extra costs in the event of the breakdown of the relationship while protecting your assets and setting aside rules for future child support engagements.
Filed in Cohabitation Agreements, Common Law Marriage • Tags: Family Law Act
“Getting the Goods” on your Spouse in Divorce Proceedings
The term “questioning” is used to describe the process in which your spouse’s lawyer asks you questions to gain information that is relevant or helpful to your divorce. Questioning, or Examination for Discovery, is not always required but it may encourage a faster resolution to more complicated divorce proceedings. It is done under oath and is sworn testimony, but is not conducted in the presence of a judge. Typically only your own lawyer, the opposing lawyer and a court reporter will be in the room.
The questioning or discovery process can be very intimidating, stressful and frustrating.
Some ways to remain calm and do your best during questioning include being extremely precise in your answers. Be truthful, but don’t forget the purpose of this questioning is to help your spouse’s case, not yours. Simply answer the questions asked of you, there is no obligation to provide additional information or elaborate.
Because you’re under oath, if you answer “I don’t know” or “I don’t remember”, you’ll be swearing that’s the case and it won’t matter if you remember later. Avoid using these phrases, but give accurate answers if there is no alternative. If the case goes to trial and your answers change, it can bring up the question of your credibility. If you do not understand a question, ask for it to be repeated. Try to be fully prepared for your questioning by reviewing and bringing all applicable documents with you, or at least any financial statements you have.
Typically the court reporter will be typing everything that is said, and this can be difficult if more than one person is talking at the same time. Speak clearly and loudly so you are not misunderstood, and use the words “yes” and “no” as opposed to nodding or shaking your head. Remain focused above all else, and listen intently and answer honestly.
A good family and divorce lawyer can certainly assist you in managing this stressful questioning process and while you should never be “coached” in answering questions, you should be properly prepared, otherwise your rights could be adversely effected.
Filed in Divorce, Divorce Lawyer • Tags: Examination for Discovery
Child Protection, Custody and Access with the Office of the Children’s Lawyer (OLC)
The Office of the Children’s Lawyer (OCL) is an independent law office within the Ministry of the Attorney General offering services on behalf of children respecting their personal and property rights.
OCL investigates, advocates, protects and represents the personal and property rights and obligations of children in proceedings before the courts and tribunals of Ontario.
In house Toronto staff of lawyers, articling students and clinical investigators carry a personal caseload and supervise members of the OCL panels who do Children’s Lawyer work across the province.
To get the OCL involved in the custody/access proceedings, one or more of the parties may ask the court to make an order appointing the Children’s Lawyer.
The appointment of the Children’s Lawyer may assist the court when it requires independent information and representation about the interests, needs and wishes of the child or children who is subject of the proceedings.
The Children’s Lawyer does not represent children in child support matters in custody/access cases.
For more information about the OLC or child custody or access issues contact us at 416 222 4555 or info@divorcesupport.ca
Filed in Child Custody in Ontario, Child Support, Child Visitation • Tags: Office of the Children's Lawyer
“Life is Short. Have an Affair” Divorce, Separation and Ashley Madison
As reported in the media, the Toronto Transit Commission (TTC) is considering placing racy advertisements for the Ashley Madison Agency, an online dating site that promotes affairs among married men and women. Advocates for family unity and marriage are outraged by the TTC’s willingness to take on the Agency as a potential client. The concern is that placing ads that encourage cheating on spouses will offend the sensibilities of people and may lead to an increase in marital separation and divorce.
Well no doubt many people will be offended if the TTC goes ahead with the ads. However, some argue that divorce rates would in fact decrease if spouses engaged in extra-marital activity from time to time . The idea here is that the “variety” factor associated with discrete dalliances would reduce the insidious boredom that eventually finds its way into the bedrooms of long term partners. Couples would return home, after their affairs with Ms Ashley or Mr. Madison, feeling refreshed, rejuvenated and even more attentive to their life partners. The argument goes that the pressure to have serious affairs which could involve strong feelings for others would be eased if once and a while spouses indulged in meaningless trysts with people in the same boat as themselves.
I am no marriage counselor nor psychologist but I am an advocate of freedom of speech. If the TTC wants to do its own experimenting with riske advertising all the power. In our own family law practice, we find that often a driver in divorce and separation is indeed boredom among the partners. The spouses otherwise love and respect each other but have let things slip when it comes to keeping things exciting and interesting. I am not suggesting that the solution to marital bliss is to have affairs. Rather, as parties to the long term relationship game, we should acknowledge the human need for change, variety, excitement whatever you want to call it. This need can take many forms and can be satisfied in many ways. Ashley Madison offers just one approach. And for what it’s worth. I do not think their “cure” is necessarily a prescription for divorce or separation.
Filed in Divorce, Divorce Lawyer, Separation Agreements •
Record Divorce Settlement Awarded for Toronto Woman
This week a record national divorce settlement was awarded in Canada when a 61-year-old Toronto woman was granted $110,000 per month in spousal support from her ex-husband who earns as much as $4 million per year, according to the Globe and Mail.
The judge said that after the woman sacrificed her career to become a stay-at-home mom and wife for the duration of their 33-year marriage, she should not have to use her savings to pay her living expenses.
The current divorce rate in Canada is approximately 37 per cent according to Statistics Canada. The reasons for a divorce are many, but the daunting financial aspects involved are very significant. Not only is divorce the break up of a marital unit, it’s the divorce of an economic unit. The dissolution of a financial partnership should be treated as smartly and carefully as the dissolution of a marriage.
Having an understanding of the financial aspects of divorce can help you save time and stress while comprehending the long and short term financial effects divorce will impose on you. Some financial aspects to consider during a divorce include:
Educate yourself of the tax benefits and liabilities with regards to spousal support and child support. In Canada, child support is tax neutral but spousal support is tax deductible to the payer and is treated as taxable income to the payee.
Protect yourself and your finances by informing your banking and financial institutions of your circumstances. This might allow you to require both you and your spouse’s permission and approval for the removal of funds or other transactions, ensuring the safety of your joint finances.
Be sure to establish credit in your own name if you do not already or if you only have joint credit with your spouse. A divorce can make it difficult to properly manage joint credit, as you are still liable for the amount owed and your credit rating can be negatively affected if your spouse does not pay their fair share. Along with your own credit, establish your own savings. If possible, have a third party analyze your budget so they can inform you if you are being overly optimistic.
For more information about Divorce contact Niren and Associates Family Law Practice at 416 222 4555 or info@divorcesupport.ca
Are You the Biological Parent? How to Establish the Parentage of a Child
It is becoming increasingly common for a parent to seek a declaration of parentage of a child after the breakdown of a relationship, particularly if the parents never lived together and there is no evidence to presume parentage.
Legislation
The legislative scheme in the Children’s Law Reform Act (“CLRA”) deals with child custody and access and the status of children who are born in or out of marriage. The CLRA also deals with the establishment of parentage.
Pursuant to the CLRA, a party in a civil proceeding to determine the parentage of a child, or in any civil proceeding in an Ontario court where a question of parentage arises (Z v. Z (1978)), may seek permission from the court to obtain blood or DNA tests of an alleged parent and may submit the results of the tests in evidence.
Blood and DNA Testing
Traditional blood testing has given way to DNA testing which can provide a much greater probability of paternity or maternity of 99.95% or higher. DNA testing is also much less intrusive than blood testing and is becoming more frequently used as the method of testing, however the results are still open to challenge.
Presumption of Paternity
The CLRA provides for a “presumption of paternity” in a case where the facts fall within one of six circumstances as set out in s.8(1) of the CLRA, including:
- cohabitation with the mother at the time of the child’s birth;
- recognition by a court that a person is the father of the child;
- certification of the child’s birth as the child’s father under the Vital Statistics Act;
- marriage to the mother of the child at the time of birth;
- marriage to the mother of the child within 300 days of the birth but the marriage was terminated due to death, nullity, or divorce; or
- marriage to the mother of the child after the child’s birth and acknowledgement that he is the natural father.
Unless the contrary of the presumption is proven on a “balance of probabilities” that the person is not the father of the child, there is a presumption that the person is, and as such will be recognized in law to be, the father of the child. This presumption as set out in section 8(1) of the CLRA is also utilized when a court is required to make a determination of parentage for the purpose of establishing child support obligations in an application pursuant to the Family Law Act.
Establishing parentage of a child upon the breakdown of a relationship is important when determining custodial rights and child support.
Contact a Family Lawyer who can assist you in understanding the judicial process and your rights and obligations before filing an application with the court. Call Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca
Filed in Child Custody in Ontario, Questions and Answers • Tags: Children’s Law Reform Act, CLRA, DNA Testing, Family Law Act, Vital Statistics Act
Changing Prenuptial Agreements during Marriage
The subject of Prenuptial Agreements (or Marriage Contracts as they are known in Ontario), have been front and centre in the media.
The alleged marital “transgressions” of professional golfer Tiger Woods concerning several women who have claimed to have affairs with the sports superstar have dominated the headlines. While Woods and his wife Elin Nordegren had a Prenuptial Agreement before entering into their marriage, according to reports the Woods have since revisited that marriage contract. Nordegren has been reportedly paid $5 million to stay and would get $55 million to stay an additional two years with Woods.
The renegotiation of a prenuptial agreement or a marriage contract as it is known in Canada is rare but not completely unheard of and a “prenup” can be renegotiated even after the marriage part takes place. Typically as long as both parties are aware of and understand the original terms, it can be renegotiated. In Ontario, a court can set aside a marital contract if one party was misinformed or misunderstood the agreement when they signed, or if one of the parties gave incorrect financial information during the arrangement of the contract.
In the event of a divorce, a prenuptial agreement is in place to protect both parties, or sometimes the wealthier party, in the matters of the dividing of property and spousal support.
Some important reasons for implementing a prenuptial agreement include:
If you plan to stay home with children: this can negatively impact your wealth if you plan on quitting your job, and a prenuptial agreement can ensure that any future financial needs that arise due to children can be divided equally.
If you are large differences in wealth between the partners: a prenuptial agreement can protect both the more well-off partner and ensure support of the financially less-well off partner.
If this is not your first marriage: in the case of remarrying for a second or third time, you may have different financial obligations such as children from another marriage, debt or other assets. A prenuptial agreement will ensure that anything you meant for either family will get to them and neither side will be left in the dark.
Your partner has significant debt: a prenuptial agreement will ensure that in case of a divorce your partner’s debt does not get passed on to you.
Like writing a will, many people do not want to think of the life-changing situations that will cause the necessity of a prenuptial agreement to arise, but if one or more of the above factors apply it can be the most responsible choice for protecting yourself and your partner in the event of a divorce.
For more information about Prenuptial Agreements contact Niren and Associates Family Law Practice at 416 222 4555 or email us at info@divorcesupport.ca
Filed in Marriage Contracts, Prenuptial Agreements • Tags: Tiger Woods