Family Law, or Matrimonial Law, refers to all of the common issues that generally arise when two individuals separate. These issues include:

• Divorce;
• Division of Family Property;
• Parenting Time (child access and residence) and Decision Making Responsibilities for the Children (child custody);
• Child Support; and
• Spousal Support.

Family Law can also apply to issues that do not necessarily arise when individuals separate, such as adoptions and Interspousal Agreements (commonly called “Separation Agreements”, “Prenuptial Agreements”, or “Co-Habitation Agreements”).  

The lawyers at W Law LLP have extensive experience in all of these areas.

In the vast majority of cases, spouses must be living separate and apart for one year in order to obtain a divorce. That being said, living “separate and apart” does not necessarily mean that spouses have to physically separate and obtain their own residences. Spouses can be “separate and apart” while living under the same roof.

If there are children involved, the Court has the power to deny a request for a divorce unless and until it is satisfied that the children of the marriage are being taken care of financially, which usually means that child support is being paid in accordance with the Federal Child Support Guidelines.

Generally speaking, a divorce “severs” or ends the marriage. However, a divorce does not address or resolve matters of property division, parenting time/child access, decision making responsibilities/child custody, child support, or spousal support. These matters may be resolved at the same time as the divorce, and might impact the ability to obtain a divorce, but a divorce is a separate issue from the other matters listed above.

Family property is any property (real or personal) that is owned by either spouse at the time of separation or divorce. Family property can include land, houses, buildings, cash, vehicles, and any other form of property that is owned by one of the spouses or that either of the spouses have an interest in at separation. This can also include pensions, RRSPs, investments, bank accounts, shares, businesses, and other related types of property. Family property can, in some cases, include inheritances one of the spouses has received as well as other gifts from third parties.

When spouses separate, there is a presumption that the assets/property or the value of the assets/property will be equally divided; however, in some cases, some assets or pieces of property may not be equally divided.

Parenting time (previously referred to as “child access”) refers to when either of the parents is seeing or exercising time with a child of the relationship. For example, if parents separate, it may be the case that the child is residing with one parent and has parenting time with the other parent on weekends, weekday evenings, or for extended periods of time during holidays or during the summer. Alternatively, parents may equally share parenting time on a week-on/week-off basis.

A child’s residence is where the child habitually resides and with whom. Again, if parents separate, the child might reside with one parent and see or have parenting time with the other parent at set times.

Decision making responsibilities (previously referred to as “child custody”) refers to which parent has the legal right to have input on decisions regarding a child. This includes those decisions surrounding the child’s healthcare, schooling, and religion. Joint decision making responsibilities (previously referred to as “joint custody”) results in both parents sharing responsibility over those decisions that affect the child. Parents may share decision making responsibilities regardless of the parenting time they each receive. On the other hand, sole decision making responsibility (previously referred to as “sole custody”) generally means that only one parent has input over decisions regarding the child.

Though parenting time, child residence, and decision making responsibilities are all separate matters, they commonly overlap, can be confusing, and are often confused. It is important to keep in mind that, whether the issue is parenting time, a child’s residence, or decision making responsibilities, the Court’s primary concern is the best interests of the child.

Child support is what a separated or divorced parent pays to the other parent to ensure the child’s needs are being met. The parent paying child support is commonly referred to as the “paying” or “payor” parent. The payor parent has a legal obligation to provide support to the other parent to ensure the child’s needs are being met.

Child support is based on the payor’s income, and is generally determined by the Federal Child Support Guidelines.

Child support is generally payable so long as the child remains a “child” within the meaning of the applicable legislation. People commonly think that child support automatically stops once a child turns 18 or stops or completes Grade 12. This is not always the case as child support often depends on the unique circumstances of each child.

In some cases, child support will differ based on where and with whom the child is living. If the child is living with both parents on an equal or close to equal basis, this will impact child support, depending on the parents’ incomes.

“Basic” or “monthly” child support is based on the payor parent’s income and is intended to meet the child’s basic needs (e.g. rent, food, clothing, and the like). There are also obligations for each parent to ensure the child’s needs are being met in terms of “extraordinary” expenses. These can include daycare, sports, extra-curricular activities, tutors, and in some cases healthcare (depending on insurance coverage). These “extraordinary” expenses are also generally determined by the Federal Child Support Guidelines, but in these cases, both parents’ incomes are considered.

Spousal support, sometimes referred to as “alimony”, are payments made from one spouse to another after separation. Spousal support is intended to reflect the advantages and disadvantages experienced by the spouses due to the spousal relationship and its breakdown.

Unlike child support that is determined by the Federal Child Support Guidelines, spousal support is not determined by any set guidelines, though the Courts often refer to the Spousal Support Advisory Guidelines. The amount of support and the length that it is payable is commonly influenced by the parties’ incomes, length of marriage, careers, and other factors.

The two most common types of Interspousal Agreements are typically referred to as “Separation Agreements” and “Pre-Nuptial” or “Cohabitation Agreements”.

Separation Agreements are used after individuals separate and will outline resolution on all of the matters that the individuals have agreed to in response to their separation. These agreements generally deal with property division, parenting time/access, child residence, decision making responsibilities/custody, child support, and spousal support.

Prenuptial or Co-Habitation Agreements are entered into prior to individuals becoming spouses or during a spousal relationship. These generally include provisions regarding how the individuals wish to resolve matters such as spousal support and division of property should the individuals separate. These agreements are common when individuals enter into relationships, when an existing relationship becomes more serious or the individuals are to become “spouses” under Canadian legislation, or when individuals are entering into a second or third relationship later in life.

In order for any agreement that deals with property to be binding, both individuals will need to consult separate lawyers from separate law firms to obtain “independent legal advice” from their own lawyers.

Retainers are agreements between a client and the law firm or lawyer outlining the contractual obligations between the lawyer or law firm and the client. There are two components to a retainer:

The actual, written document that the client signs that outlines the contractual obligations between the client and the law firm; and
The related retainer payment. The retainer payment is not a fixed fee, nor is it an estimate or a quote for expected fees; rather, it is a deposit that is paid by the client for future work and expenses that the law firm will incur on behalf of the client.