FREQUENTLY ASKED QUESTIONS (FAQ)

HOW MUCH EXPERIENCE HAVE YOU HAD?

Carol Struthers was called to the Bar in 1982 and opened her own practice in the Bolton area in 1989. She has been practising law primarily in the areas of Family Law, Wills and Estates and Real Estate. Carol has experience in conducting motions, applications and trial work at the Superior Court level and at the Ontario Court of Justice level as well as in the Court of Appeal.

Carol is a trained Mediator and Collaborative Law Lawyer.

WHAT HAPPENS IF I DO NOT RESPOND TO A COURT APPLICATION?

If you fail to reply to a Court Application, the Court has discretion to make an Order in your absence. The Court will only have the details included in the Application started by the other party and will generally grant a Court Order in favour of the other party based on the information he/she provided. The Court may proceed to make an Order without any further notice to you.

WHAT DO I DO IF I AM SERVED WITH A COURT APPLICATION?

If you are served with a Court Application, you should contact a lawyer immediately since you have only 30 days to respond if you are served in Ontario. You should advise the lawyer of the date you were served and of the court date which is usually listed on the Application.

HOW LONG WILL IT TAKE TO OBTAIN A DIVORCE AND WHAT IS THE PROCESS?

Provided all other issues such as support, custody and property division are resolved, you complete an Application for Divorce, have it issued by the court and arrange to have it served on the other party who is called the Respondent. The Respondent has 30 days within which to reply. If no reply is received, an Affidavit for Divorce is completed and submitted to the Court with other relevant documents. At this point the timing for the completion of the divorce is in the hands of the Court. It is processed according to the availability of judges to review the material submitted. Once the Divorce Order is signed, either party has 30 days within which to appeal the decision. If no appeal is made, a Certificate of Divorce is requested. The timing to the conclusion of the divorce depends entirely on the Court which may have a backlog of files depending upon the workload of the Court in that particular area.

HOW IS CHILD SUPPORT DETERMINED?

You and your child’s other parent may agree to set up your own child–support agreement out of court, or you can ask a judge to decide on an amount. If you and your child’s other parent set up your own support agreement, you have some flexibility about the amount that will be paid — as long as you can agree and the amount is fair. Many parents use child support guidelines to help them come to an agreement. If a judge is asked to decide, the judge must set child support amounts according to rules set out in child support guidelines.

In Canada, there are provincial/territorial guidelines and the Federal Child Support Guidelines. The guidelines that are used, either by a judge or by parents, depend on the situation of the parents.

The Federal Child Support Guidelines would be used if you were legally married to the other parent and then get a divorce. Provincial or territorial child support laws would be used if you and the other parent were never married to each other or if you were married but are only separating (not getting a divorce). Most of the provincial and territorial guidelines are a lot like the federal guidelines. You may wish to contact your provincial ministry of Justice for more information.

Whether you use provincial, territorial or federal guidelines, these guidelines are the law.

Generally speaking, child support payments are based on the Federal or Provincial Child Support Guidelines which include a table detailing the support payable based on the gross income of the paying parent. The amount of support differs with the number of children to be supported. The nature of the parenting arrangement can affect the amount of support to be paid. If parents equally share time with a child, child support may still be payable by one parent to the other if there is a significant disparity in the income levels of the parents. The theory is that a child should continue to benefit from the financial resources of both parents and should not have significantly different standards of living in each home.

WHAT IS "NET FAMILY PROPERTY?"

Each party’s Net Family Property is calculated based on their assets and debts on the date of marriage and on the date of separation. Certain property is not included in the calculation of Net Family Property such as gifts from someone other than your spouse. The increase in value of a couple’s assets during their marriage is divided equally between them when they separate if they are “Equalizing” their net family property. It is important to note that it is not the actual assets that are divided, but the “value” of the assets, which are divided.

Other exceptions may apply. For example, in a marriage of less than 5 years, it may be grossly unfair to equalize net family property.

Calculating Your Net Family Property

The starting point for dividing property is for each spouse to calculate his or her net family property. To do this, you first calculate the value of all of your assets on your date of separation. From that amount, you then deduct the value of all of your liabilities on your date of separation. Next, you deduct the value of all the assets you had on the date you married. A Matrimonial Home which was owned by one spouse at the date of marriage may not be deductible as are other date of marriage assets. You also then need to deduct the value of certain items that are not considered family property, such as life insurance proceeds, gifts from third parties, inheritances and personal injury awards or settlements. Finally, you add the value of all your liabilities on the date of your marriage. This figure is known as your net family property.

In order to “Equalize” your net family property, the spouse with the higher net family property makes a payment or transfers assets to the other spouse in an amount which results in both spouses having the same net family property.

DO COUPLES LIVING COMMON LAW HAVE THE SAME RIGHTS AS MARRIED PEOPLE?

No. Couples in a common law relationship do not have a right to seek an Equalization of Net Family Property. There is no automatic property rights available to cohabiting couples. If a common law spouse considers that he or she has made a contribution to the property of the other spouse, he or she may seek to be compensated for that contribution. The best way to protect your rights is to have a Cohabitation Agreement which sets out the rights and responsibilities of both spouses.

A common law spouse may be entitled to spousal support if the relationship if the parties resided together for at least 3 years and one party was financially dependent upon the other during the relationship. The 3 year period does not apply if the parties have a child together.

DO I HAVE TO LEAVE THE MATRIMONIAL HOME?

In Ontario, only married people can have what’s referred to as a “matrimonial home”. It can be a property which is rented or owned. No matter who has their name on the papers for the house, both spouses have a right to live in the matrimonial home.

WHAT IS A FINANCIAL STATEMENT AND MUST I COMPLETE ONE?

Each party is required to provide full financial disclosure in all Family Law cases that go to court. A Financial Statement is a document wherein each party lists their income and budgetary expenses as well as their assets and liabilities on the date of marriage, the date of separation and the current value. The Financial Statement is used to determine child and/or spousal support payments as well as to calculate each party’s Net Family Property. Each party is also required to attach a current paystub as well as copies of their Income Tax returns and Notices of Assessment for the previous 3 years.

In certain situations, the parties may waive completion of Financial Statements but it is not advisable to do so except in rare circumstances.