Family Law

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When a married or common law couple separates, there are three general issues that need to be considered and settled: division of property, spousal/common law support and children's issues.

Division of Property

Common law couples and married couples are treated the same under the Family Property Act and have been ever since June 30, 2004. A common-law couple is defined as a couple who have lived together for three years or longer. Any common law couple that wishes to register with Vital Statistics can do so to formalize this relationship immediately. Other than some exceptions, the Family Property Act states that the value of all assets accumulated during the period of marriage or cohabitation is shareable upon separation or on death. Common exceptions are gifts and inheritances which are intended for only one of the parties.

In most cases assets that were acquired before the start of the cohabitation/marriage are not shareable, but the increase in the value of an asset is usually shareable.

Every type of asset is included in the definition of assets under the Act, including real estate, personal property, RRSP's and pensions.

A spouse or common-law partner is entitled to full disclosure of all assets and debts, and to an accounting. The accounting process involves subtracting all debts from the value of assets in order for a determination to be made as to whether or not an equalization payment is to be made.

An example:

Wife owns:

  • Assets: $100,000
  • Debts: $ 75,000
  • Net Value of Assets: $25,000

Husband owns:

  • Assets: $200,000
  • Debts: $175,000
  • Net Value of Assets: $25,000

In this case no equalization payment would be made, as the net value of the assets for both the husband and the wife are the same. If the net value of assets were not equal, 50 per cent of the difference would be payable by the spouse or common law partner that has the higher net value of assets.

Spousal/Common Law Support

Married and common law couples have a legal duty to support each other financially. After separation, the spouse with the higher income may be required to make support payments, either in a lump sum or in monthly payments. These monthly payments may be for a fixed period of time or for an undetermined length of time. The spouse that is receiving the payments must make a concerted effort to become financially self-sufficient if possible. The longer the couple was together before separation, the more likely there is for support to be payable, and for a longer period of time.

Many factors are taken into consideration when determining whether or not spousal support is payable. These include the following:

  • The length of time the couple cohabited;
  • The functions performed by each party during cohabitation;
  • The existence of any orders, agreements or arrangements relating to support;
  • The ability to pay;
  • The ability of a spouse to become financially independent;
  • The financial need of each party.

When the couple is common law, the spouse with the higher income is liable to pay support when they have a) lived together for three years or longer or b) if they have a child together and have lived together for at least one year. The factors that weigh on how much a spouse receives and for the length of time are fairly similar for common law couples and for married couples. The law setting out the procedure for these situations is the Divorce Act for married couples and the Family Maintenance Act for common law couples.

Children's Issues

There are two legal issues surrounding children:

  1. Custody
  2. Child support

Custody

Custody can be either sole, joint or shared. According to the law, the children's best interest is always taken into account when deciding custody. Many factors are part of this decision, and include the following.

  • History – What is the history of each parent's involvement in raising the children? A parent who has been primarily involved in taking care of the children will likely continue to have primary care and control of the children after separation.
  • Are the parties prepared to work together and co-operate?
  • Is one parent attempting to deny contact between the other parent and the children? In this case, the parent who is more co-operative and facilitates contact may retain custody.

Mediation is often used to arrange for a custody agreement.

Child Support

The Child Support Guidelines outlines the child support both under the Divorce Act and the Family Maintenance Act. The guidelines outline a basic amount of support, using the gross income of the parent who is required to pay support.

Additional child support may be required for extraordinary costs, for example: day care, medical costs including orthodontic costs, and tuition for postsecondary education. Each party will be called upon to pay the net cost, based on their proportionate share of the combined income of the parties. For example – if one parent earns 75 percent of the combined income, that parent would pay 75 percent of the net cost of the extraordinary expense.

Child support usually continues until the age of 18. After 18, child support may still be payable, particularly if the child attends an educational institution on a full-time basis. There may be factors that may need to be reviewed to decide if child support should continue or not.

Practising Lawyers: G. Alex Cudney, Cal Friesen, Kenneth Thomas Greenhalgh, H. Mark LaClare, Martha P. Musuka, Nikki C. Kagan, Garry J. Sinnock, Harley Greenberg, Conor Williamson, Sarah Gravelines, Andrea Rous, Stacey Ennis, Nicole Philp

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Disclaimer

The information provided herein is of a general nature. Please contact us at 204-944-7907 to speak with a lawyer to discuss the specifics of your situation.