When a marriage or long-term relationship ends, there are numerous legal issues that need to be resolved. These issues may include: custody of children, child support, spousal support, and the division of property. These issues will be resolved by the parties through the negotiation of a settlement, which will be formalized in a document called a separation agreement, or the parties will attend in Court or at an Arbitration and will have a Judge or an Arbitrator decide the issues for them.

The negotiation of a separation agreement or the imposition of a decision by a court, both involve the resolution of the issues after your marriage or relationship has ended. But what if you want to resolve these issues before your marriage or relationship ends? Certain issues can actually be resolved before you enter into your marriage or relationship or even during your marriage or relationship. If such a resolution is reached, it will have to be documented in a formal legal agreement called a “marriage contract” or a “cohabitation agreement.” These agreements are also colloquially known as “pre-nups.”

Marriage contracts apply to persons who are married or intend to marry each other while cohabitation agreements apply to non-married spouses who are cohabiting or intend to cohabit. Both types of agreements can deal with certain issues that may arise during cohabitation or on the breakdown of the relationship. These include: ownership of property, division of property, and spousal support (in certain cases). It should be noted that marriage contracts and cohabitation agreements cannot deal with other issues such as the custody of children, access to children or the occupancy of a matrimonial home.

The advantage of a marriage contact or a cohabitation agreement is that it allows you to define today what your obligations to your spouse will be in the event of a breakdown in your marriage or relationship. It allows you to protect a portion or all of your property from a claim by your spouse. It may also allow you to define what, if any, support obligations you may owe your spouse in the future.

It should be remembered that a marriage contract or a cohabitation agreement is a very special type of agreement. Courts have imposed very strict standards which must be followed if the agreement is to be relied upon in the future. The contract must be negotiated in an honest and straight forward manner. The parties must exchange complete, comprehensive and accurate financial information and both parties must have independent legal advice in advance of signing the agreement. The failure to follow these standards may result in the contract being set aside if and when it is to be relied upon in the future.

In order to protect your property and finances now and in the future should your marriage or relationship end, you should meet with your lawyer to determine if a marriage contract or cohabitation is appropriate for you.

If you have questions regarding marriage contracts or cohabitation agreements, please feel free to contact any of our family law lawyers at (613) 728-8057.

Upon the breakdown of a marriage or a long-term relationship, there are a number of issues which normally need to be resolved depending upon the circumstances of the parties. These issues may include: the custody of children, child support, spousal support and the division of property.

The following is a summary of these very important issues and the factors that are often considered in resolving them.

Custody and the Residency of Children

One of the most important decisions that will need to be resolved on the breakdown of a marriage or relationship is who will have “custody” of the children.

The term “custody” refers to a parent’s right to make important decisions regarding a child’s care. A custodial parent is entitled to make decisions regarding a child’s education, health, religion and welfare.

Upon separation, one parent may be granted “sole custody” which means that that parent is entitled to make all of these important decisions alone. If one parent has sole custody, the other parent does not participate in these decisions but is still entitled to be informed of the decisions after they have been made and also receive information about other important issues in the child’s life. In other cases, the parents may be granted “joint custody” of the children. This means that the parents are joint decision makers and they must both agree before a major decision affecting the child is made. In order for joint custody to work, the parents must have an ability to effectively communicate with each other and they must have a common outlook towards parenting.

The residency of the children is an issue, which although technically separate from the issue of custody, is closely related to it. Upon the breakdown of a marriage or relationship, the parents may agree that the children will maintain their primary residence with one parent and the children will see the other parent according to a fixed access schedule. A typical access schedule normally involves the children seeing the other parent once during the week, every second weekend and during all major holidays.

In other families, the parents may agree that the children should not have a primary residence but rather the children should reside equally with both parents. This is referred to as “shared residency” or “shared custody.” Finally, the parents may also agree that one or more children should maintain their primary residence with one parent and one or more children should maintain their primary residence with the other parent. This is referred to as “split residency” or “split custody.”

The issues of custody and the residency of the children are always decided on the best interests of the children. In determining the “best interests of the children”, the following factors are considered: the love, affection, and emotional ties between the parent and the child, the views and preferences of the child, the length of time the child has lived in a stable home environment, any plans proposed for the upbringing of the child, the ability of each party to act as a parent, and the ability and willingness of each parent to provide the child with guidance and education, the necessaries of life and any special needs of the child.

Child Support

Both parents have a responsibility to financially support their children, regardless of the custody or access arrangement that is in place.

Generally, child support will be determined in accordance with the federal or provincial Child Support Guidelines. The guidelines provide a comprehensive but straight forward method of determining how much child support each parent will pay.

A child support order is usually comprised of two amounts: the “table” amount and a contribution towards a child’s “special and extraordinary” expenses.

The “table” amount represents a parent’s contribution to the day to day costs of raising a child, namely: shelter, clothing, food, basic extracurricular expenses, etc. Within the guidelines, there are different sections which detail how the table amount is to be calculated based upon the residency arrangements for the child(ren). Thus, if the children maintain their primary residence (defined as at least 60% of the time) with one parent, the table amount is calculated in a certain manner. If the children reside with both parents at least 40% of the time (referred to as “shared custody”), there is a different method of calculating child support. Finally, if there is more than one child, and at least one child maintains his or her primary residence with each parent, there is another method of calculating child support.

Regardless of which section of the guidelines will be used, the other variables which must be known prior to determining the table amount are: the number of children, the ages of the children and the incomes of both parties. Once these are known, the determination of the table amount is relatively straight forward.

Special and extraordinary expenses, as the term implies, are those expenses which fall outside the purview of a child’s daily needs. Examples of such expenses include: child care costs, medical and dental insurance premiums relating to the child, health related expenses such as orthodontic treatments or eyeglasses, the costs of post-secondary education, or expenses for extraordinary extracurricular activities.

A separate section of the guidelines details how each parent’s contribution towards these expenses will be determined. First, one must determine if the expense in question is both reasonable and necessary. If the answer to both of these questions is in the affirmative, then the parents will each contribute to the after-tax cost of the expense in proportion to each parent’s income. For example, if the after-tax cost of the expense is $1,000 and the mother earns $100,000 and the father earns $50,000, the mother will pay 67% of the expense and the father will pay 33%.

Spousal Support

Spousal support is designed to provide financial assistance from one spouse to the other upon the breakdown of a marriage or relationship. It is one of the most controversial areas of family law and one of the most difficult on which to advise.

There are three major issues that need to be resolved when spousal support is considered: entitlement, quantum and duration.

Entitlement involves, as the name implies, the determination of whether one spouse should receive support from the other. It is normally resolved after reviewing various factors including: the length of the marriage, the roles the parties assumed during the marriage, the financial circumstances of the parties at the breakdown of the marriage and the self-sufficiency of each party.

If there is an entitlement to spousal support, the next issues to be resolved are how much support should be paid and for how long. In determining these issues, the following factors will be relevant: the ages, health and incomes of the parties, the length of the marriage or relationship, the incomes of the parties, the needs of the recipient and the ability to pay of the payor, and, the future employment prospects for the parties.

To assist in the determination of the issues of quantum and duration, the federal government created the Spousal Support Advisory Guidelines (“SSAG”). These guidelines are advisory in nature, unlike the child support guidelines which are mandatory. The SSAGs use the incomes and ages of the parties, the length of the marriage whether child support is being paid to develop ranges of spousal support. The parties can then use the ranges generated as a means of resolving the issues of quantum and duration of spousal support.

Division of Property

The division of property will be directly affected by the nature of the relationship in question. Married spouses participate in a property division scheme which is detailed in Part I of the Family Law Act. It is referred to as the Equalization of Net Family Property. Unmarried spouses do not participate in this scheme. Property between unmarried spouses is generally divided according to ownership.

The Equalization of Net Family property scheme is premised on the fact that there is an equal contribution by both parties for the care of children, the management of the household and the financial provision for the family during a marriage. When a marriage ends, both parties should share equally in any assets and liabilities that were acquired or incurred over the course of the marriage.

The rules that need to be followed in complying with the scheme are complex and numerous exceptions and exemptions exist. The following is a very basic outline of the steps that need to be followed:

Step 1 - Each spouse determines his or her net worth on the date of separation. An individual’s net worth is determined by subtracting the value of all debts and liabilities one has from the value of all assets that one has. An adjustment may also have to be made to take into account whether a spouse has “excluded property” on the date of separation. Excluded property may include such things as: gifts or inheritances that were received during the marriage and which still exist on the date of separation, damages for personal injuries that were received during the marriage and which still exist on the date of separation, or life insurance proceeds that were received during the marriage and which still exist on the date of separation.

 

Step 2 - Each spouse determines his or her net worth on the date of marriage.

 

Step 3 - Each spouse determines his or her net family property. Net Family Property (“NFP”) can be defined as a spouse’s net worth on the date of separation (see step 1) less his or her net worth on the date of marriage (see step 2).

 

Step 4 - The parties compare their NFPs. If the two amounts are equal, nothing needs to be done. If one party has a higher NFP, the party with the higher NFP will pay the party with the lower NFP half of the difference between them to “equalize” their NFPs. This will result in each party receiving half of the assets and liabilities that were acquired over the course of the marriage.

 

Step 5 - Determine if the result in Step 4 needs to be adjusted to account for any unconscionable results. It should be noted that the result in Step 4 will generally stand and it is only in very rare circumstances that it will be adjusted by Step 5.

If one party owes the other an equalization payment, it is normally paid through a cash payment. However, the parties may agree that the payment is to be funded through the transfer of property, the assumption of debt or some other transaction.

Summary

This overview of the basic family law issues is a very brief summary. These issues are very complex and are often only resolved after a full analysis of numerous factors. As such, one should not rely upon the foregoing as being a definitive answer to your individual situation.
If you have questions about your separation or how a separation may affect you in the future, please contact one of our family law lawyers at (613) 728-8057.

After the breakdown of a serious relationship or marriage, the individuals involved will often have a number of difficult issues to resolve in order that they may each move on with their lives. Those issues may include: custody of children, child support, spousal support, property division and the disposition of the matrimonial home.

One of the first decisions that the parties will have to make is how are they going to resolve these issues. Although there are numerous ways of resolving any dispute, this article will examine 4 methods that are often used in a family law context:

• Negotiation
• Mediation
• Collaborative Family Law
• Litigation

Negotiation

Negotiation is probably the most common form of dispute resolution in family law. It normally involves each party retaining a lawyer who, acting on the client’s instructions, will negotiate a resolution of the issues on behalf of the party. Depending upon the issues involved, it may be necessary for the lawyers and parties to meet at a “4-way meeting” to help resolve any outstanding matters. If a settlement is reached, it will be documented in a Separation Agreement which will be signed by both parties.

Mediation

Mediation is a method of dispute resolution in which the parties retain a third party (i.e. the “mediator”) to assist them in resolving the outstanding issues between them. The mediator does not take sides nor does he/she resolve the issues for the parties. The parties negotiate the settlement themselves. The mediator’s role is simply to facilitate a discussion between the parties that will hopefully lead to a settlement. If a settlement is reached, the mediator will normally draft a Separation Agreement that details the settlement.

Collaborative Family Law

Collaborative family law is a process where the parties agree to resolve the outstanding issues between them in a cooperative rather than adversarial manner. The parties, with the assistance of specially trained family law lawyers, will identify each party’s interests and will then attempt to craft a resolution that will respect and meet those interests. The process is designed to minimize posturing and tactical maneuvering and to focus as much as possible on settlement. If a settlement is reached, it will be documented in a Separation Agreement that will be signed by both parties.

Litigation

Litigation is a process whereby the parties go to court and ask the court to decide the outstanding issues for them. The parties will often have to attend in court on a number of occasions before the matter is either settled or a trial is held. If a trial is held, the judge hearing the matter will impose a decision which is binding on the parties. Notwithstanding that the parties are in court, they may still agree on a settlement. In fact, over 95% of the cases that go to court will settle before a trial is held.

The choice of the method of dispute resolution will be a critical aspect of resolving any family law dispute. Clients will have to consider the nature and scope of the outstanding issues, the reasonableness of the opposing party, the level of cooperation and communication with the opposing party, finances and any history of domestic violence in deciding which method is appropriate for them. It is highly recommended that a full and frank discussion of these factors take place with a lawyer before a client decides on the approach to be taken.

If you have questions regarding different methods to resolve family law disputes, please feel free to contact any of our family law lawyers at (613) 728-8057.