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Family Law and Divorce

Before making important decisions, you should understand your rights and obligations. Family law can be complicated and a booklet cannot possibly answer all your questions or tell you everything you need to know.

There are many ways you can inform yourself about the law and your options. Generally, Ontario family law applies equally to couples who are of the same or opposite sex.

If you are separated or are thinking of separating, it is a good idea to speak to Aswani K. Datt about your situation to get specific information about the law and tell you how it might affect you.

Aswani K. Datt offers top quality arising out of:

  • Parenting, custody and access of children:

If you do not have custody of your children, you have a right to spend time with them unless the court decides that this is not in their best interests.

Access arrangements can be written out in detail in a parenting plan, separation agreement or court order. The plan, agreement or order could say, for example, that the children would be with you every other weekend. Or, your access arrangements could be open, letting you work out arrangements with the other parent in a more flexible way.

You do not have a right to be part of the decision-making about these things, unless you have joint custody of your children or your separation agreement or court order says that you will share in making decisions. A court may refuse you access to your children if there is a fear that you will harm them or harm the parent with custody, or if there is a fear that you will not return the children to the parent with custody.

Spousal support:
If your common law relationship ends, and you do not have enough money to support yourself, you can ask your spouse to pay support. You can ask for support for yourself if you have been living together for three years, or if you have lived together for less time and have had or adopted a child together.

If you can’t resolve the issues, you can go to court and ask a judge to decide if you should get support. If you and your spouse have or adopt a child together, you can ask for support for that child.

The law views spousal relationships as economic partnerships and when the partnership breaks down the person with more money may have to support the other. At the same time, the law expects adults to try to be self-sufficient and to look after their own needs to the best of their abilities. During a relationship, one person often spends more time looking after the home and the children.

That person does not have a chance to earn a lot of money in the workforce, or to become more skilled and more highly paid in a trade or profession, or to pay into a pension plan over a long period of time.

When a relationship ends, that person is at an economic disadvantage. To decide on the amount of support that should be paid by one spouse to the other, the law says that judges must look at how much the person asking for support needs to live, and how much the other person can pay.

A person may claim support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.

In general, people who have been together for a short time will only be able to get support on a short-term basis. Support payments may give a person a chance to go back to school or train for a job. After years out of the workforce or years in low-paying jobs, some people may never be able to become financially self-sufficient.

Their spouses may have to pay long-term support for them.

Here are some of the things that are taken into account:

  • the age and health of the couple;
  • available employment opportunities;
  • the effect being in the relationship had on employment opportunities;
  • the contribution made to family care during the relationship;
  • the contribution made to the other person’s career;
  • the family’s standard of living before separation;
  • the time it will take for the person to become self-sufficient; and
  • the need to stay at home to take care of young children or adult children with a disability.

Child support:
Children of parents living in a common law relationship have the same rights to support from their parents as the children of married couples.

If your spouse treated your child as their child while you lived together, you can also ask for support. You can settle on support for your child through negotiation, mediation, collaborative law or arbitration.

The amount of support is set under the Child Support Guidelines.

Both parents have a responsibility to financially support their children. They share this responsibility when they are living together and continue to share it after they separate.

This responsibility applies to all parents, regardless of whether they were married, living together or have never lived together. The parent with custody of the children has to take care of them, buy food and clothes for them, pay for outings and activities, look after all their day-to-day needs and keep the home running.

The parent who does not have custody of the children usually has to pay the parent with custody money to help cover the costs of taking care of the children. This payment is called child support.

The amount of child support to be paid in Ontario is set out under the Child Support Guidelines

Under the Guidelines, child support payments are based on the income of the person who does not have custody or the person with whom the children do not usually live and the number of children that need support. In some cases, the court can order an amount that is higher or lower than the guideline amount.

Property division:
The law says that married spouses share responsibility for childcare, household management and earning income during their marriage. In the eyes of the law, a marriage is an equal partnership. When a marriage ends, the partnership is over and property has to be divided.

To recognize the equal contribution of each person, the general rule is that the value of any property that you acquired during your marriage and that you still have when you separate must be divided equally, 50-50.

Property that you brought with you into your marriage is yours to keep if your marriage ends. Any increase in the value of this property during your marriage must be shared. There are some exceptions to these rules.

The law allows you to keep the value of some property that you have at the end of your marriage for yourself. This property is called excluded property.

It includes:

  • gifts you received during your marriage from someone other than your spouse;
  • property that you inherited during your marriage;
  • money that you received from an insurance company because someone died; and
  • money that you got or that you have a right to get as a result of a personal injury, like a car accident.

The family home is another exception to the general rules. The law says that when your marriage ends, the full value of the family home must be shared even if one of you owned the home before you were married, received it as a gift or inherited it.

Unlike other types of property, you do not get to keep for yourself what the house was worth at the time of your marriage. You and your spouse can agree to a different split. Or, in some circumstances, you can ask the court to divide things differently.

The court can only divide property differently in very special situations and if a 50-50 split would be extremely unfair to one of you. The legal rules that you have to follow to calculate the value of your property and divide it between you and your spouse can be complicated.

  • Pensions, trusts, taxation
  • Family business matters
  • Premarital contracts
  • Cohabitation agreements

Couples in a common law relationship can sign a cohabitation agreement to protect their rights. A cohabitation agreement can spell out what you both want your financial and family arrangements to be.

It can say who owns the things you buy while you are living together. It can say how much support will be paid if the relationship ends and how your property will be divided. It can say who has to move out of the home if the relationship ends.

It cannot say who will have custody of, or access to, your children if your relationship ends. You cannot decide this before the relationship is over.

  • Separation agreements
  • Common-law relationships
  • Same-sex relationships
  • Inter-jurisdictional and foreign matters
  • Collaborative family law
  • Financial investigation of complex property and business transactions
  • Hague Convention and International Child Abduction

Separation agreements and court orders can resolve some family matters when you separate but they do not legally end your marriage. The only way to legally end your marriage is to get a divorce.

  • Court expertise
  • Analysis and use of expert evidence
  • Legal Research and Opinions
  • Appeals

Aswani K. Datt can help you devise a litigation strategy to ensure you receive a real and cost effective result.

Contact Us
Toll Free: 1-844-328-8529 (1-844-DATT-LAW)

295 Matheson Blvd. East
Mississauga, Ontario
L4Z 1X8
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