Family Law
Family law is undoubtedly one of the most confusing and complicated areas of law. It often involves multiple moving parts and attempting to figure out how to navigate the system can be extremely frustrating. You are likely unsure of where to start and have questions about what issues actually fall under the family law umbrella.
The complex nature of family law does not lend itself well to self-represented individuals, which is why it is a good idea to consult with a family law lawyer about your case.
The following is a very general overview of some of the most common issues in family law litigation and is intended to be used for informational purposes only.
Divorce
When a marriage ends, one of the first questions that people have is “at what point can I ask the court to grant me a divorce?” In order for a court to hear an application for divorce, one of three grounds must be met: living separate and apart for one year, adultery, or cruelty.
living separate and apart
If a married couple has been living separate and apart for at least one year, a court may grant an order for divorce. The important date in determining whether you have been living separate and apart for at least one year is the date of separation, which is the date that you and your partner terminated your romantic relationship. People who still reside together can be living separately and apart, so long as the parties are living their lives independently and there is no romantic or intimate element to their relationship. A claim for divorce under the grounds of separation is the most common and the most likely to be successful.
adultery
If one party engages in an affair while still actively married to their spouse, the applicant may make a claim for divorce under the grounds of adultery. There must be evidence supporting the claim that adultery took place while the marriage existed, and the person seeking the divorce must not have condoned the affair. Couples cannot jointly apply for a divorce on the grounds of adultery.
cruelty
When one spouse inflicts mental or physical harm upon the other to the point that the parties can no longer live together, the applicant may seek a divorce under the grounds of cruelty. Cruelty can include violence, verbal abuse, or excessive alcohol and/or drug consumption. The applicant must provide proof of the cruelty that he or she endured. It is possible for a court to order a divorce less than one year after separation in situations such as these, but the offending spouse must admit to the cruelty for this to happen.
Residency, Decision-Making Authority, and Parenting Time
Residency and decision-making authority used to be collectively called “custody,” while parenting time used to be known as “access”. It was decided that the terms “custody” and “access” in the context of family law were too adversarial, so the language was changed.
residency
Primary residency: a child’s primary residence is where he or she resides at least 61 percent of the time. A parent making a claim for primary residency is asking the court to make an order that the child live with him or her the majority of the time.
Shared residency: a child resides equally with both parents. A living arrangement can be considered shared residency if the child is in one parent’s care anywhere between 40 to 60 percent of the time, while residing with the other parent the rest of the time, though the most common arrangement is a 50/50 schedule.
Split residency: when there is more than one child, the children have different primary residences. For example, a situation where there are two children, and one primarily resides with her mother while the other primarily resides with his father is a split residency scenario.
decision-making authority
This is the ability of the parent to make major decisions regarding the welfare of the child, such as non-emergent medical care and what school the child will attend. The court usually encourages parents to share decision-making authority; however, in situations where this is not plausible, one parent can act as the sole decision-making authority for a child.
PARENTING TIME
It is a child’s right to have parenting time with his or her parent, not the other way around. Because of this, the court always tries to ensure that a non-custodial parent has as much parenting time with the child as possible. The most common arrangement is one where the child spends every other weekend and one night during the week with the non-custodial parent. Parenting time also includes extended time, such as holiday and summer vacation time. There is no set rule for what parenting time should look like, so parties are able to be creative.
Child Support
Child support is money that a non-custodial parent sends to the custodial parent each month to contribute to the cost of care for the child. Despite popular belief, this money is not for the personal use of the parent with primary residency; it is meant to be used to benefit the child. Child support in Canada is calculated using the Federal Child Support Guidelines, which determines how much “table” child support someone should pay based on his or her annual income and the number of children support is to be paid for. Unless it is a situation of shared residency, the child support recipient’s income is not relevant for the purposes of calculating child support.
When parents have shared residency of a child, both of their incomes are used to determine what is called an “offset” child support amount. If there is an outstanding balance after you deduct one party’s child support obligation from the other’s, this offset amount must be paid to the appropriate parent for the benefit of the child. For example, if Parent A’s child support obligation is $1,000 per month and Parent B’s obligation is $700 per month, there is a $300 balance leftover that should then be given to Parent B.
There are select situations in which parties can deviate from the table amount of child support. You should speak with a family law lawyer to get further information.
Division of Property
The division of property is a highly technical process and involves determining which assets go to whom and whether one party owes any money to the other – this is known as an “equalization payment.” The most important dates in completing property calculations are the date of marriage and the valuation date, which is the date that the parties separated and, accordingly, the date that the value of all relevant property should be assessed. Property issues are relevant in both traditional marriages and in common-law relationships, though some differences in entitlement do exist.
When it comes to dealing with issues of property, it is best to have a family law lawyer assist you to ensure that everything is being dealt with correctly.
We know that dealing with family law issues can be difficult and intimidating. We encourage you to speak with a family law lawyer to learn more about your options. A lawyer’s knowledge and experience can be invaluable to your family law case. Paragon Law offers initial family law consultations at a reasonable and competitive cost; we would be happy to meet with you to discuss your case.