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2010 Brings Major Changes to Family Law in Ontario

Commencing March 1, 2010, the McGuinty government will be implementing major reforms to a variety of Family Law matters in Ontario.  The reforms have been introduced with the objective of improving the public’s access to justice in family courts.

The following are some highlights of the changes that will take effect under the new legislation:

• Family law litigants will have greater access to legal advice and the opportunity to resolve issues through the use of mediation, arbitration, and collaborative family law
• Steps to family law litigation will be streamlined and simplified
• Steps to obtaining a restraining order have been modified
• Child support amounts pursuant to either a court order or a domestic contract filed with the court may be recalculated by a child support service to reflect updated income information
• Additional evidentiary requirements must now be met when filing an application for custody or access to a child, including an accompanying affidavit containing a proposed plan for the child’s care and upbringing and information regarding the person’s current or previous involvement in any family law and criminal proceedings
• Every person applying for child custody or access who is not a parent must complete and provide to the court the results of a police records check and a children’s aid society report
• Where a person is declared to be the parent of a child, his or her written consent is required to change the child’s surname, if consent cannot be obtained or is refused an application can be made to the court
• Where a person is declared to be the parent of a child, an application can be made to the court to request that the child’s surname  be changed to any surname that the child could have been given at birth
• The definition of “Net Family Property” has been amended to include any contingent tax liabilities when calculating a spouse’s debts and liabilities on the date of  separation
• “Property” is to include the imputed value of a spouse’s interest in a pension plan

Full details of the upcoming reforms are still to be released by the government.

Check back to our blog for further details once the family law changes come into effect on March 1, 2010.

For further information on family law and divorce contact us at info@divorcesupport.ca or call us at 416 222 4555

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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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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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