Family Law FAQ

Frequent Asked Questions and terminology related to Family Law

• What does Parenting Time mean in Family Law?
  This is considered a child’s right but it is the parent who has to sometimes start a court action in order to see his/her child, if the other parent will not let him/her see their child.
  
  
• Are all Assets and Debts equally divided?
  No. There are exceptions such as inheritances, gifts from third parties (not from one spouse to the other); property you had before you got married but NOT the matrimonial home. The matrimonial home gets divided equally even if one spouse bought and owned it before the marriage. There are also exceptions to an equal division if the parties have been married for less than 5 years, or one spouse has recklessly depleted family assets. You will need legal advice to determine if your case falls within either of these categories and your chances of being successful.
  
  
• How is Child Support determined in Family Law?
  Child Support Guidelines are available online. The calculation of the monthly child support depends on the gross income (income before taxes) of the payor, the number of children and other factors.
  
  There are exceptions as in shared custody agreements or when one of the parents has the child(ren) at least 40% of the time.
  
  
• I am separating, Should I leave my child with my spouse?
  When you separate, do not leave your child with the other spouse unless you are not going to be pursing decision-making responsibility of that child. Leaving your child with the other spouse does not mean that you are abandoning your right to parenting time. But, it can disadvantage your decision-making responsibility claim because by leaving the child with the other spouse, you are in essence saying that you are not concerned about that spouse'ss ability to care for the child.
  
  
• How does Family Responsibility Office help me collect my Child Support?
  Family Responsibility Office (FRO) is a government agency that is required to enforce, i.e. collect, all child and spousal support orders and/or agreements dealing with child or spousal support. The parties can withdraw and pay the child or spousal support directly to the person to whom it is owed. For those who are worried about getting paid on a regular basis, this government agency will automatically garnish the support payor's paycheck. The problem is that a person usually has to wait 3-6 months before they start receiving any of the support that he or she is entitled to.
  
  
• How do Duty Counsel help people who can't afford lawyers?
  All court houses have duty counsel. Duty counsel are lawyers who help those individuals who cannot afford lawyers provided you meet a financial eligibility test that the duty counsel will determine when he/she is discussing your case with you at court.
  
  
• Does an asset or debt get listed on your Financial Statement or your spouse's?
  It depends on whose name the asset or debt is registered in. For example, if the matrimonial home is just in one spouse's name, the house would only be listed on that person's financial statement. However, the other spouse is still entitled to 50% of the value of the matrimonial home, even though title is only in one person's name. If there is a joint bank account, then 50% of the amount in the joint bank account is listed on each person's financial statement.
  
  
• Jurisdiction, where do you have to start your court action?
  If you have children and custody and/or access is an issue that you need the court to deal with, the court action has to be started in the jurisdiction that has a courthouse that is closest to where the child resides: i.e. If the child resided in Mississauga, the closest family law courthouse is in Brampton at 7755 Hurontario St.
  
  
• How do I qualify for Legal Aid to help with my divorce?
  If you cannot afford a lawyer contact Legal Aid and they will determine if you are financially eligible to receive Legal Aid assistance so you can hire a lawyer. If you are eligible, Legal Aid will provide you with a list of lawyers who accept Legal Aid. Call the Legal Aid office closest to you to find out if you qualify.
  
  
• How are Property Division Rights determined in Common Law Families?
  Property division is a division of assets but it is also a division of all the assets and debts of both spouses: not just the assets. Each person's net worth has to be determined (that person's assets minus their debts), and their spouse's net worth must also be determined (their assets less their debts). Then the final calculation is done to determine what sum of money is owed from one spouse to the other. There are some exceptions to the division of all assets and debts that a married couple has. If you received an inheritance, that inheritance does not get divided with your spouse unless you put the money into the matrimonial home, for example, using it to pay down the mortgage. If you want to ensure that your inheritance does not get divided with your spouse in the event of a separation, talk to a lawyer.
  
  Property division rights are much more complicated in a common law relationship. If you are the titled owner of property, you are entitled to a share of that asset, or possibly the whole asset if it is only registered in your name. For assets or debts that are not in your name, there is still an equitable or trust argument that can be made by a "spouse" who is not married. You need to seek out legal advice to determine your property rights in a non-marital situation.
  
  
• After Marriage Breakdown, Who Gets the House?
  Once a couple is married, each spouse has a right to possession of the matrimonial home. Usually, the parent who obtains temporary custody of the children, has a stronger case for obtaining exclusive possession of the matrimonial home. Very often, a spouse will try to get possession of the home by saying that his/her partner assaulted them or threatened their life. Once a criminal charge has been laid, that person is no longer permitted to live at the residence.
  
  What if the matrimonial home is not registered in my name? Once you are married, the property that you and your spouse live in together, gets divided equally upon separation, regardless of whose name it was or is registered in. So, if you had a house before you got married, and then moved your husband or wife into that house, your partner now becomes entitled to 50% of the house.
  
  
• Should I Leave my Home?
  If you leave your home, you do not lose your entitlement to 50% of the value of the home. However, you should remove any valuable or sentimental items before you depart, because sometimes angry spouses do things like destroy all your sentimental photographs or say that certain items that you know you had, never existed. I recommend either videotaping or taking pictures of all of the household contents: open the drawers and cupboards and closets and garage and videotape everything before you leave. Take all of your financial documents as well and if you can, photocopy all of your spouse’s financial information. This can save a tremendous amount of money in legal fees that are often spent trying to obtain proper financial disclosure to determine the division of assets and debts.
  
  
What is a Prenuptial Agreement?
A prenup, short for prenuptial agreement, is a legal contract a couple signs before marriage that sets rules for how money, property, assets, and debts would be handled if the marriage ends due to divorce or death; it often protects assets owned before marriage, clarifies financial responsibilities, and can reduce conflict later, though it typically can’t decide child custody or child support, which are left to the courts..


• How can a lawyer help me get a Restraining Order?
  If you have a spouse, partner, or boyfriend/girlfriend, whether you are married or not, and that person has physically abused you or has threatened your life or that of your children, you should consider a restraining order. The abuse can be as minor as grabbing your wrist, slapping you across the face or as serious as breaking a bone. A restraining order will prevent that person from being allowed to talk to you (in person, telephone, text or email), to have any contact with you, and will include a restriction about that person not being allowed within a certain distance (300 or 500 metres) from where you live and work.
  
  
• Can my spouse stop me from getting a divorce?
  Once you have lived separate and apart for one year, as long as child support for any minor children has been formally agreed to either in a domestic contract or by court order, your spouse cannot prevent you from getting a divorce.