Family Law
Most family law is concerned with legal issues that arise from separations and divorces. As such, they are difficult to go through, both practically and legally. At Yassavoli PC, we seek to ease some of the stress that is involved in these situations by protecting our clients’ interests.
When you come to see our firm, we discuss this legally complex and emotionally sensitive topic by explaining how the law applies to your situation. We will guide you through the laws that may affect you if you separate, including but not limited to the care and support of your children, spousal support and division or equalization of property. Our job is to fight for our clients’ rights in all aspects of family law.
Because these matters cause a great deal of stress, choosing the right family law lawyer is the first step to protecting your interests. Our firm regularly provides personalized legal advice to our clients to deal with any situation that may arise in a prompt and effective manner. Thus, while a separation or divorce can have reaching effects on one’s whole family, our firm is dedicated to pursue our clients’ interests by assisting them in working towards an amicable resolution.
Therefore, although some separations and divorces can be a difficult and uncertain time, our responsibility is to help our clients move to a resolution that’s meaningful to them. Whether in court or negotiation outside of court, we strive to advocate successfully on your behalf. Let us help you during this difficult time by making this fundamental transition an easy one.
Spousal Support
Learning about retroactive and indefinite spousal support and when these may apply depend on many factors including but not limited to the length of your marriage, your income, etc. This is sometimes referred to as alimony. Because of the complexity involved in family law, it is always encouraged to consult a lawyer whether you may be entitled to receive or require paying spousal support in the event of a divorce or separation.
The law in Ontario requires spouses to reveal the sum of their holdings and assets. The reason for consulting a knowledgeable family law is for these serious pressing matters that can emotionally breakdown an individual. As such, concealment of marital assets is a serious matter that may and will indeed become an issue when negotiating any form of support or equalization payments.
Now, spousal support is usually paid on a monthly basis, albeit the fact that it can also be paid as a lump sum. One of the main reasons underlining the need for spousal support is set out in the federal Divorce Act wherein for example, a spouse sacrifices his or her ability to earn income during the marriage in order to take care of the kids, a spouse becomes in financial need arising from the dissolution of the marriage or the ongoing care of children, over and above any child support obligation. Spouses who receive support have an obligation to be self-supporting when reasonable.
The next question thus becomes who can ask for spousal support? Under the Divorce Act and in most cases, spousal support is requested by the spouse who has a lower income. Thus, when a married couple divorces, several factors are determined including but not limited to whether spousal support should be paid, including the financial needs of both spouses, length of time that both spouses have lived together, the roles undertaken by each spouse during the length of the marriage, the effect of those roles and the breakdown of the marriage on both spouses’ current financial positions, etc.
The calculation of spousal support remains one of the most complex areas of family law insofar as many factors are considered to determine an amount that will be deemed as fair and appropriate in each case. When calculating spousal support, family law professionals use the Spousal Support Advisory Guidelines. Note that unlike the Federal Child Support Guidelines, the Spousal Support Advisory Guidelines are not law.
Child Support
As for child support, it is regulated under the federal Divorce Act. It is defined as the money that one parent pays to another to support their children(s) financial needs after a separation or divorce.
After a separation or divorce, it is imperative that both parents understand that they have to support their children financially and that they cannot evade from this responsibility. One must understand and know that child support is a legal right and the child is entitled to this right by law. Thus, both parents have an ongoing responsibility to provide this support whether or not there is a separation or divorce between the child’s parents.
Similarly to spousal support, child support is calculated using guidelines. The guidelines being used are regulated under the Divorce Act, being the Federal Child Support Guidelines. Now, when calculating child support, provincial/territorial guidelines may also apply depending on one’s situation. For example, the Federal Guidelines apply in all divorce cases with the exception of situations wherein both parents live in the same designated province. Because the provincial head of government regulated the celebration of marriage, provincial/territorial guidelines when the parents were never married to each other and when married parents separate but do not divorce.
Once again, it is trite law that child support guidelines are the law for establishing child support amounts. As parents, there is the flexibility that comes when deciding the amount of child support that is suitable for the children. However, if you ask a judge to decide the child support payments, he will use the applicable child support guidelines; unless there are special provisions which benefit a child.
By way of a writ order or a written agreement between the parents, it may indicate when child support will end. If there is no indication of same, then the payments for child support continues until the writ order or agreement is modified.
Furthermore, while it is the child’s legal right to be provided child support from both parents, it is generally paid to the other parent. However, this may not be the case wherein a judge orders that child support be paid directly to a child who is at or over the age of majority. At this stage, the judge will consider all the circumstances surrounding the family’s situation to determine whether direct payment to the child is deemed appropriate.
Finally, one question that comes across often is whether parents whom are involved in a new relationship continue to have the obligation to pay child support from an earlier relationship. This obligation continues even if the fact remains that a parent has new family responsibilities. As such, the writ order or agreement remains the same and in effect until the end date set out in same.
It is rather under the Federal Guidelines that a different child support amount can be claimed. Indeed, a court may order for a different amount if a claim for undue hardship is successful. The onus is on the parent involved in a new relationship to show that its new circumstances may cause undue hardship to them. Therefore, there is a two-step test when determining if a parent is experiencing undue hardship:
- Show that one’s circumstances would make it very difficult to pay the required amount of child support; and
- Compare the standard of living in both households to determine whether the parent asking for the child support change has a lower standard of living than the household of the other parent.
Division of Property
The FLA, being the Family Law Act, regulates the equalization of net family property. Thus, if you and your spouse are married, when you separate or divorce, what you are entitled to is called the equalization of net family property. This regime is translated by way of a property equalization scheme wherein each spouse becomes automatically entitled to an equal share of the profits of that marriage. In other words, each partner is entitled to one half of the value of property accumulated during the marriage.
Determining the value of each spouse’s property can be a daunting task however, since family law and property law are interchangeable. Calculating the division of property starts with determining the value of each spouse’s property at the valuation date. Therefore, one must include all assets as of the valuation date, except for those specifically excluded by the said FLA at s. 4(2) to obtain the total value of assets.
Further, one must determine all debts secured by both parties in order to subtract all debts from the total assets. This will create a total value for each party on the valuation date. If a party possesses more debts than assets at the valuation date, consideration of the total valuation will be zero.
The next step is to determine the value of all assets that each spouse brought into the marriage, in other words, the value of their assets at the date of marriage. The value of the matrimonial home however is not included in this valuation if it was owned at the time of marriage. Once again, if a party’s net worth was negative at the time of the marriage; consideration of the valuation will be maintained at zero.
Once these valuations have been determined, this will allow us to calculate the spouses’ “net family property”, otherwise referred to as NFP, which includes the value of assets acquired during the marriage as well as the increase in value of assets brought into the marriage. Therefore, for each spouse, subtract the date of marriage assets from the valuation date assets. It is done this way because the date of marriage assets tends to rise in value from the valuation date assets.
Finally, the amount of the equalization payment will be determined subsequently to the subtraction of the lower NFP from the higher one. In almost all cases, one spouse will always have a higher NFP than the other. This difference will be divided in half, which the spouse with the higher NFP will pay to the spouse possessing the lower NFP.