Visit our Website
- Alternative dispute resolution
- Artificial insemination
- Child Adoption
- child custody
- Child Custody in Ontario
- Child Support
- Child Visitation
- Cohabitation Agreements
- Collaborative Law
- Common Law Marriage
- Current trends
- Divorce
- Divorce Lawyer
- Enforcement
- Family Law Changes Ontario
- Family Property Division
- Family Responsibility Office
- Family structure
- Marriage Contracts
- Mediation
- Motion to Change
- Polygamy
- Prenuptial Agreements
- Process server
- Provincial legislation
- Questions and Answers
- Religious ceremony
- Same Sex Marriage
- separation
- Separation Agreements
- Service of documents
- Spousal Support
- Support Orders
- Surrogacy
- Toronto Divorce Lawyers
- Toronto Family Lawyers
- Variation
Categories
Archives
Related Blogs
Tag Cloud
Follow Us on Twitter
Find Us on Facebook
Legal marriage vs. religious marriage in Ontario
It’s becoming a well-known fact that in the province of Ontario, division of property rights don’t extend to common law couples. This may change one day, and British Columbia already has plans in motion to change it, but for now it remains the biggest difference between legal and common law marriage in Ontario. For example, if a spouse entered into a common law marriage with a home in their name, the other spouse wouldn’t have any rights toward the home or its sale upon splitting up.
A recent case highlights this key difference as an Ontario couple who only underwent a religious marriage ceremony failed to obtain a civil marriage license.
Many people undergo religious marriage ceremonies under various religious laws. There are ceremonies under Canon (Christian) law and Halakha (Jewish) law, as well as Hindu law, Sikh law and many other faith-based laws. In the case of this couple, Sharia (Islamic) law. In most of these weddings, a civil marriage license is still obtained and the paperwork is often incorporated into the religious ceremony by the couple and the officiant. With this particular couple, no marriage license was obtained in Ontario.
Unfortunately for this couple, upon their separation the wife did not have a claim to the condominium that her husband entered into the marriage with, because the relationship under the law was a common-law marriage and the condominium could not be considered a matrimonial home without the civil license.
Couples who are married outside Canada who then immigrate to Ontario will have their marriage recognized as long as it is recognized in the country of marriage, but couples married in Ontario will not, unless they file the proper paper work.
On a side note: in some cases, couples may choose to have a religious ceremony on one date and then a legal ceremony on another date for whatever reason. Beware of letting months or even years lapse between the two ceremonies, as any assets accrued before the marriage is legal may not be subject to the division of property rights that legally married couples are entitled to.
Filed in Common Law Marriage, Family Property Division, Provincial legislation, Religious ceremony, separation •
More of British Columbia’s progressive family law changes revealed
The family law problems posed by modern life will soon have more clear-cut resolutions as British Columbia plans on tabling the new Family Law Act (the changes’ working title) during the first half of next year.
The 30-year-old Family Relations Act in British Columbia, which is the province’s version of the Ontario Family Law Act, is set to be completely overhauled with new rights for common-law couples and new custody rules to for today’s non-nuclear families.
Separating couples’ time with their children won’t be called access or custody anymore, but “parenting time” or “guardianship”. Families who are constantly in volatile disputes where children are involved will have parenting coordinators that will have the authority to act as an arbitrator, and children conceived by an egg or sperm after the donor parent dies will be seen in the eyes of the law equal to any other child by that particular pairing.
In addition, ex-spouses who act inappropriately can be given conduct orders that result in jail time and fines.
British Columbia’s government consulted with family lawyers, the Canadian Bar Association, as well as the public, in order to come up with the 172-page white paper.
Currently, Ontario does not have similar laws granting common-law couples property rights or custody laws that compare with those that British Columbia is proposing.
Filed in Child Visitation, Common Law Marriage, Divorce, Family Property Division, child custody •
Toronto mediation vs. collaborative law
”How long?” and “how much?” are two questions that are often at the forefront of any divorce-oriented thought process, particularly when separating spouses attempt to resolve such issues as property division, child custody, and support. While the financial cost of finalizing a divorce depends on a great number of variables, the emotional costs during a hotly contested dispute can be great, taking its toll on both the parents and the children.
Mediation and collaborative law are two methods of finalizing a divorce without litigation. Mediation involves using a mediator, usually someone with a background in social work, to act as a negotiator between the opposing spouses in order to resolve the outstanding issues. The parties’ respective lawyers are involved in the mediation process and can opt to amend a mediator’s recommendations or the parties’ themselves can make changes to a recommendation.
In contrast, collaborative law involves the separating spouses and their respective lawyers, who are all active participants in the negotiation of the matrimonial issues. Should any of the issues related to the divorce fail to become finalized, the collaborative lawyers are prohibited from representing the spouses in court. Collaborative law is less expensive and time-consuming than litigation.
Filed in Child Custody in Ontario, Child Support, Collaborative Law, Divorce, Family Property Division, Separation Agreements, Spousal Support, Support Orders, child custody •
Marriage contracts for Ontario couples: insurance for your relationship!
U.S. popstar Hillary Duff and Canadian NHL player Mike Comrie were married last week in a ceremony that took place in California. In 2007, Forbes magazine estimated Duff’s earnings for the year at $12 million, and not only did Comrie make an NHL paycheck (he’s a free agent this year), his father is the co-founder of The Brick and his family’s fortune is an estimated $500 million. It has been reported that prior to their marriage, the couple signed a prenuptial agreement (known as a ‘marriage contract’ in Canada).
Some view a marriage contract as an “easy out” if a couple were to divorce, and that if two people were really in love they would not need a marriage contract. Contrary to this belief, few couples enter marriage thinking divorce is inevitable. Most couples who say, “’til death do us part,” mean it, never intending to become part of the 38 per cent divorce rate in Canada.
Divorce may be unplanned but it does occur. Therefore, couples should protect themselves, their finances and their assets by entering into a marriage contract. Initiating discussions about a marriage contract may be difficult however it is beneficial to a couple in the event of something unforeseen. A marriage contract is similar to buying life or car insurance, neither means that one intends to die or become injured, but it can protect you should it occur.
Marriage contracts are not just for the wealthy, there are many reasons to enter into such an agreement. Those who sign marriage contracts include couples marrying for a second time or are older couples marrying for the first time in life, both of which usually have built up assets to protect and may have children from previous relationships for whom they would want to preserve those assets.
Similar to the marriage contract for married couples, common-law couples can also protect themselves and enter into a cohabitation agreement.
Filed in Cohabitation Agreements, Common Law Marriage, Divorce, Family Property Division, Marriage Contracts, Prenuptial Agreements •
BC continues to improve its family law rules, will Ontario be next?
British Columbia recently announced that the province is set to propose additional rights for common-law couples, and is also continuing to announce different amendments it plans to enact pursuant to its Family Relations Act.
Property and asset division rules for common-law couples were part of the major changes in B.C. These changes are necessary as there have been a growing number of couples that are choosing not to marry but to remain common-law relationships and, upon separation, if not on title, may not have any rights to the family property.
Other changes to the Act include the introduction of “parenting co-ordinators” during heated child custody cases. In addition, it will now be possible for a child to have more than two legal parents, which will be the first change of its kind in the whole country. This would be the case, for example, when a same-sex male couple has used a surrogate female to have a child and all three would be legal parents if they’re in agreement. The same could be said for a same-sex female couple and a male sperm donor, if all three are active parents of a child.
Spousal support will be able to continue after a paying ex-spouse’s death, if applicable.
Restraining orders available through the court would now be protection orders that are enforceable under the Criminal Code.
As well, parties intending to go to court over property and child custody disputes will need to first show an attempt to negotiate a settlement through the use of out-of-court methods such as mediation.
It’s been 30 years since British Columbia has made any changes to its Family Relations Act. The recent changes will update the Act to deal with the evolving family structure to include common-law couples, same-sex couples as well as surrogacy and sperm donors.
Filed in Child Support, Child Visitation, Common Law Marriage, Divorce, Family Property Division, Mediation, Same Sex Marriage, Separation Agreements, Support Orders •
How much do you know about your spouse’s financials?
In Ontario, upon the breakdown of a marriage, spouses are required to provide financial disclosure, including income, assets, and liabilities, to one another to determine their support and property entitlements. According to a recent article published in the Edmonton Sun, spouses’ hiding debt, credit cards and other hefty financial information is not uncommon.
“In my experience, it’s probably more common than not that a spouse doesn’t know every financial detail,” Edmonton family mediator and collaborative family lawyer Marla Miller told the QMI Agency this week. The head of the family law section of the Canadian Bar Association, Grant Gold, also told QMI Agency that, “It happens more often than you would think – that people run separate financial lives,” he said, “It’s relatively common. It speaks to problems in the marriage, and it speaks to the need for couples to communicate in advance and things like that.”
While a person interviewed in the article suggested it might be a good idea that a spouse be required to seek permission from the other spouse in order to obtain a loan or credit card, this suggestion might return society back to the era when a wife had to ask her husband’s permission to obtain a credit card.
Instead, spouses should learn to protect themselves.
In the event of a split, spouses should make a list of the family sources of income, assets, debts, and liabilities, including car loans, the mortgage, lines of credit and credit cards as well as which spouse incurred the debt. Also, maintain copy of bank and credit card statements, income tax information, employment contracts, and loan agreements. Take the necessary steps to protect yourself and your future.
http://www.edmontonsun.com/comment/columnists/mindelle_jacobs/2010/07/28/14853026.html
Filed in Child Support, Divorce, Family Property Division, Spousal Support •
More Ontario residents choosing out-of-court methods to resolve family law issues
According to a number of Ontario lawyers and professional mediators, an increasing number Ontario residents are taking their family law cases to alternative dispute resolution, including mediation and collaborative law. Alternative dispute resolution is a cost-effective alternative to the cost of litigating a family law matter in court, which is no longer within means for most people.
Alternative dispute resolution also provides a quicker resolution to a family law matter than litigation and provides parties with an opportunity to be heard and the ability to control negotiations. Parties are able to come to agreements, as opposed to having a resolution forced upon at least one party by a judge.
In mediation, a third party with special training, such as a background in social work, will assist both parties in making decisions. Lawyers are usually retained by the parties for advice in these cases, while in arbitration an arbitrator will meet with the parties’ respective lawyers. In collaborative law, parties’ lawyers will work to finalize an agreement that is acceptable for both parties, although if issues cannot be resolved the lawyers cannot be retained for any future court proceedings.
In 1999, the Ontario Mandatory Mediation Program was introduced in Toronto, Ottawa and Windsor. Mediation is an option that must now be considered in civil disputes at those locations. Mandatory mediation was not extended to family law cases because in some instances, such as domestic violence cases, mediation may not be a possibility.
In addition to its cost-effectiveness, alternative dispute resolution also removes children of separated parents from any exposure to the court process, and it enables adults, who were once children of their parents’ long, drawn out divorces, to go through their own family law dispute without lengthy litigation.
Filed in Child Custody in Ontario, Child Support, Child Visitation, Collaborative Law, Common Law Marriage, Divorce, Divorce Lawyer, Family Property Division, Mediation, Separation Agreements, Spousal Support, Support Orders, Toronto Divorce Lawyers, Toronto Family Lawyers •
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
Filed in Child Custody in Ontario, Child Support, Child Visitation, Cohabitation Agreements, Collaborative Law, Common Law Marriage, Divorce, Family Law Changes Ontario, Family Property Division, Marriage Contracts, Mediation, Prenuptial Agreements, Separation Agreements, Support Orders, Toronto Family Lawyers • Tags: Net Family Property
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.
Filed in Divorce, Divorce Lawyer, Family Property Division, Separation Agreements • Tags: equalization payment, Family Law Act
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
Filed in Divorce, Family Property Division, Toronto Family Lawyers • Tags: Family Law Act, Matrimonial Home