Prepare For Your First Interview With Your Matrimonial Solicitor

Grounds for Divorce

There are three grounds for divorce in Ontario. Adultery is the first ground for divorce. Mental and physical cruelty is the second ground. The third ground is one year separation. The first two grounds are rarely used today. If you proceed on the grounds of a one-year separation, you can issue the Petition for Divorce the day after separation, but the divorce cannot be granted until one year has passed from the date of separation. All other issues known as the corollary relief can be finalized during the first year of separation.

Financial Statement

For a solicitor to best advise you on your matrimonial situation, you should prepare a draft Financial Statement (Click here to download a blank Financial Statement form). This document along with your last three years of income tax returns and Notices of Assessment as well as an up to date pay stub will permit your solicitor to best advise you on your first interview. The level of detailed information contained in the financial statement is significant and its accuracy is critical due to the impact that it will have on your final settlement. Your solicitor should review your financial statement and then advise if you need the services of an experienced financial advisor, who specialises in this field. You need to know if your financial plan will work for you after separation and divorce. No one wants to return to court to argue that you need an increase in support due to a miscalculation.

Family Law Act Claims

If you are not married, a Family Law Act claim can provide the same relief as to support and custody that you can obtain from a Divorce Action but without the actual divorce, as you never married. The treatment of the division of property is different as it is not based on statute but on common law. Please click here for a more comprehensive explanation as to the treatment of property at the end of a common law relationship.

Custody

Older children, starting in their early teens, can decide on their own where they want to live and how often they wish to see you. If the children do not want to see you, it is difficult, even in court, to force them to visit with you. Maintain a good relationship with your children at all costs. Usual access in Ontario for the non-custodial parent is every other weekend for the entire weekend, once during the week, sharing birthdays, special events, religious holidays and summer vacation. The best solution remains joint custody where the children would have their principal residence in the home of the one parent and their secondary residence in the home of the other. Each party would have the day-to-day care and control of the children, while in residence with that party. Other types of custody are split and shared.

Change of Name

Provision for a ban against the custodial party changing the child's name must be provided for in a Separation Agreement or Divorce Order.

Passport

Provision must be made for the child's passport to be in the child's birth name as it appears on the birth certificate. For travel purposes with your child, you require the other parent’s consent each time you travel outside of Canada. Click here to download the Travel Consent form as provided by the Government of Canada.

Change of Residence

Provision for a ban against the custodial party moving away from the jurisdiction of the non-custodial parent must be provided for in a Separation Agreement or Divorce Order.

Child Support

On May 1, 1997, the federal government passed legislation to change the Income Tax Act and the Divorce Act. Child support is no longer taxable in the hands of the recipient and no longer a tax deduction in the hands of the payor. To do a simple calculation of child support payable, refer to federal child support guideline tables (click here to calculate child support payable). For self-employed individuals, a determination has to be made first as to their income. The definition of income for child support purposes is different from the definition of income for income tax purposes. If your income surpasses the $150,000 level, a Judge has the option of either ordering child support based upon the guidelines or the guideline amount up to $150,000.00 plus an amount in addition based upon the recipient’s need.

The other points of interest are as follows:

  • If you have the child in your care, forty percent of the time or more you can ask for a reduction in the guideline amount of child support or eliminated entirely.
  • If you can claim undue hardship, which is a two-step test you can ask for a reduction in the Guideline amount of child support. The test is as follows:

STEP 1: CIRCUMSTANCES THAT MAY CAUSE UNDUE HARDSHIP

  • the spouse has responsibility for an unusually high level of debts reasonably incurred while supporting their spouse and their children prior to the separation or to earn a living;
  • the spouse has unusually high expenses in order to exercise access to a child;
  • the spouse has a legal duty under a judgment, order or written separation agreement to support any person;
  • the spouse has a legal duty to support a child, other than a child of the marriage, who is:
    • under the age of majority, or
    • is over the age of majority, but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
  • the spouse has a legal duty to support any person who is unable to obtain the necessities of life due to an illness or disability.

STEP 2: STANDARDS OF LIVING MUST BE CONSIDERED

Despite a determination of undue hardship under subsection (1), an application under subsection (1) might be denied by the court. If the Court is of the opinion that the household of the spouse who claims undue hardship would, after determining the amount of child support have a higher standard of living than the household of the other spouse.

Other Issues Re: child Support

(a) Life Insurance

(b) Additional insurance coverage for health, medical and dental expenses

Section 7 Expenses (additions to the child support guideline amount)

Pursuant to section 7 of the Federal Child Support Guidelines, both you and your spouse have an obligation to contribute to the child's special and extraordinary needs.

The section refers to the following expenses:

  • child care expenses incurred as a result of the custodial parent's employment, illness, disability or education or training for employment;
  • that portion of the medical and dental insurance premiums attributable to the child;
  • health-related expenses that exceed insurance reimbursement by at least $100 annually per illness, injury, or event, including orthodontic treatment, professional counseling provided by a psychologist, social worker, psychiatrist or any other person, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
  • extraordinary expenses for primary or secondary school education or for any educational programs that meet the child's particular needs;
  • expenses for post-secondary education;
  • extraordinary expenses for extra-curricular activities.

Please note that Section 7 extra-curricular activities has been interpreted to mean different things to different families. The intent of the legislation is that this does not cover ordinary extracurricular activities such as swimming, baseball, soccer, etc. It is meant to include such things as camp, or if your child is a superstar in hockey or any sport, that he plays in 12 months of the year.

When does child support cease

Child support is normally payable for the length of time as follows:

  • the child no longer resides with the custodial parent. "Resides" includes the child living away from home for school, summer employment or vacation;
  • the child turns 18, unless the child is unable to become self-supporting due to the illness, disability, education or other cause;
  • the child becomes self-supporting; e) the child obtains a post-secondary degree or diploma
  • the child turns 23 years of age;
  • the child marries;
  • the child dies; or
  • a party dies, provided that life insurance is in place at the time of death, the support ceases.

Spousal Support

The current state of the law with respect to spousal support is governed by the Spousal Support Guidelines, which are not mandatory but have become slavishly followed by the Courts. Some points to consider with respect to Spousal Support are as follows:

  • Spousal Support unlike child support is still a tax deduction to the payor and taxable income to the recipient.
  • Spousal Support can either be payable on a periodic monthly basis or on a lump sum basis.
  • Spousal Support payable on a periodic basis is tied to the income of the payor. The spousal support is subject to a material change in circumstances which means the amount can be changed depending on such things as a change in the payor's income, a change in the recipient's income, the winning of a lottery, etc.
  • Spousal support can be time limited if the parties agree.
  • Spousal support can be reviewable on a certain date if the parties agree.
  • Spousal support paid on a lump sum basis is a one time payment which is not taxable in the hands of the recipient and no tax credit to the payor. Because of the current state of the law, if you were to pay a lump sum payment of spousal support in exchange for a release of spousal support, there are no longer any guarantees that based on a material change in circumstance, this could not be set aside. Delay in bringing the application for a period of years is a strong factor against re-opening the lump sum payment in an attempt to obtain further spousal support.

Net Family Property

The Family Law Act provides a specific formula for the division of all assets and debts at the end of the marriage. The Matrimonial Home, for the purposes of division of Net Family Property, is the one exception to this rule. It is always divided equally between the parties notwithstanding that it may have been brought into the marriage by one of the parties or one party invested inherited monies into the Matrimonial Home. Both parties fill out a financial statement, which contains a portion specific to the division of Net Family Property. Your solicitor will not be able to provide you with a specific dollar amount with respect to how much you will receive or how much you have to pay your spouse until your solicitor receives a financial statement from your spouse or his/her solicitor.

An application for division of Net Family Property cannot be brought once one of the following occurs:

  • two years after the date the marriage is terminated by divorce or judgment of nullity;
  • six years after the day the spouses separate and there is no reasonable prospect that they will resume cohabitation;
  • six months after the first spouse's death.

Matrimonial Home and Joint Tenancy

A Matrimonial Home held in joint tenancy upon the death of one of the parties, would automatically pass to the survivor. If you are separating, you must sever the joint tenancy making it a tenancy in common so that at the very least, your half goes to your chosen heirs.

You and your spouse both have possessory rights to the Matrimonial Home. Neither of you can forcibly remove the other from the Matrimonial Home. In order to obtain exclusive possession of the Matrimonial Home, one party must voluntarily leave the Matrimonial Home, or if a party goes to Court seeking an Order for exclusive possession of the home, based on legal arguments that are presented to the Court.

Will and Powers of Attorney

Immediately, upon separation you will have to have a new Will and Powers of Attorney drawn up and signed by you reflecting the changes in your life.

Conclusion

After obtaining the information requested and considering the issues raised in this article, you will be ready for your first interview with your matrimonial solicitor.

March 2015