Surviving Family Conflict – The Basics: Custody, Access, Support and The Division of Property

Custody

When parents separate, one parent or the other will usually be the “custodial parent.” By definition, the custodial parent has day-to-day care and control of the child(ren) and makes all of the decisions about the welfare of the child(ren). In contrast, the access parent is entitled to information about the child(ren) and generally frequent visits with the child(ren) (i.e. alternate weekends).

Other arrangements are possible. “Joint custody” is where one parent has day-to-day care and control of the child(ren), but both parents together make decisions about the child(ren)’s welfare. Joint custody with shared day-to-day care and control is also possible.

Another alternative might be custody to one parent with the other parent having supervised or no access altogether. If you or your spouse cannot agree on parenting arrangements, a Court must decide “what is in the best interests of your child(ren).”

If you anticipate that custody might be in issue, it is important that you continue to reside with your child(ren) until custody has been resolved or until temporary arrangements have been agreed upon and documented. Such arrangements can have significant legal implications and consequences and should be made with the assistance of lawyers.

Support

Government Child Support Guidelines usually dictate the appropriate amount of child support that you or your spouse must pay. However, it is not always that simple. “Add-ons” such as, day-care, educational or health related expenses may dictate higher child support payments. As well, the Child Support Guidelines may not always apply in certain circumstances (i.e. shared custody of children or children over the age of sixteen).

Whether a spouse will be entitled to spousal support depends upon a number of factors. These factors include the ability to pay, the needs of the dependent spouse, the assets and means of each of the spouses, the standard of living during the relationship, the possibility of self-sufficiency, the efforts made to become self-sufficient, the length of the relationship and, among other things, the roles adopted by the parties during the relationship.

Child support payments following from Orders or Agreements made after May 1, 1997 are net of tax. Spousal support payments, however, receive different tax treatment. If paid following from an Agreement or Order, spousal support is generally tax deductible for payors and includable in the income of recipients for tax purposes.

Division of Property

Subject to some exceptions, each spouse’s net accumulation of wealth during a marriage is to be “equalized.” The growth in the net wealth of each spouse will be calculated upon the breakdown of the relationship. The spouse with the higher increase in net wealth may be required to make a payment to the other spouse such that the economic growth accumulated during the marriage is equally divided between both spouses.

Specific rules may impact the determination of net wealth. For example, the value of gifts received from third parties or inheritances (save those put into the matrimonial home) are not to be included in the determination of a spouse’s net wealth.

In rare circumstances, spouses could unequally divide or be forced to unequally divide family property. Generally, before a spouse would be forced to unequally divide family property, a Judge must determine that otherwise equal division of family property would ” shock the conscience of the reasonable person.”

There is a time limit on the ability of a spouse to seek an “equalization payment.” Specifically, spouses cannot sue for an “equalization payment” two years after the marriage is terminated by a Divorce Judgment or six years after the date of separation, whichever is earlier.

For those spouses that are not married, how property will be divided depends upon a number of factors. Such factors include the assets in issue, the roles played by each “common-law spouse,” and each of such spouse’s contributions to the acquisition, preservation or improvement of any of the assets in issue.

Matrimonial Home

To decide who is going to live in the matrimonial home until things are resolved, a Judge of the Ontario Superior Court of Justice is to considers factors, such as, the best interests of the child(ren), the presence of any violence or abuse and the availability and affordability of alternative accommodation.

Helpful Things to Remember

Try to approach your case objectively and think before you do anything that may influence your situation.

Consider closing joint bank accounts, joint credit cards, making a Will and changing any beneficiary designations in assets, such as, an RRSP or life insurance.

Remember that family law is complex and each situation is different. Disregard what you have heard from friends and get proper advice – the earlier the better.

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