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DIVORCE AND SEPARATION

When a long-term relationship ends, a separation begins. When two people are married and decide to end their partnership, they will also need to get a divorce. Whether you are in a common-law relationship or married, legal representation can help provide guidance through this confusing and often unexpected experience.

In Canada, married couples can be granted a divorce if one of the following three grounds can be established:

  1. Separation;
  2. Adultery; &
  3. Cruelty.

The first, the most common ground for divorce, is a separation for at least one year. The second and third grounds for divorce are “fault grounds”, and are if there has been adultery or cruelty. By proving either adultery or cruelty, a person is able to be granted a divorce prior to having completed the one year of separation. These are rare grounds for a divorce to be granted on however, because the court process can be lengthy and a year of separation will often occur before being able to prove in court that adultery or cruelty has occurred.

CUSTODY AND ACCESS

Separating can be hard and emotionally draining, however this is just intensified when children are involved. Most people are unaware of the difference between custody and access. A family law lawyer can help guide you through all the issues surrounding your children, including custody, access, and travel and mobility. By understanding what the law is and how courts deal with children and separation, it makes it easier to come up with solutions and schedules that work best for you and your new family.

PROPERTY DIVISION AND EQUALIZATION

If you are married and are separating from your spouse, you are entitled to an equalization of your family property. This is the notion that the property acquired during the course of the marriage should be split between partners. This is done by taking a “snapshot” of what each person was worth/owned on the date of marriage and what each person was worth/owned on the date of separation. The more property and assets involved, the more confusing and complex it can be. A lawyer can help to ensure that all assets accumulated throughout the marriage are included, while all other property is treated properly and protected.

Equalization ensures that when people are leaving a marriage, they both have the same net worth, as the law views marriage as an equal partnership. This does not mean however that the property itself is split equally; just their value. A lawyer can help negotiate with your former partner or their counsel to come up with solutions for dividing your property in a way that works for both of you.

CHILD SUPPORT AND SPOUSAL SUPPORT

Financial support can be a very contentious issue, whether it is in regards to your children, or yourself or your former partner.

Child support is much more straightforward, thanks to the Federal Child Support Guidelines, but section 7 expenses, those expenses that are considered special or extraordinary expenses, are not necessarily as clear. Section 7 expenses can include costs such as medical and dental for the child, schooling, or extra-curricular activities.

Spousal support is payable between one partner to the other upon the breakdown of their relationship. It is possible to claim spousal support for both married, and unmarried cohabitating couples. Just because you were living with your partner, does not automatically make you or them entitled to spousal support. A person must first show that they are entitled to spousal support. Once entitlement is determined, the courts must decide the amount of spousal support, and the length of time in which spousal support will be paid, including the start date, and whether there is a fixed end date.

To determine if a person is entitled to spousal support, the courts will look at whether there is:

  1. Lost opportunities experienced by a person due to the relationship or whether they deserve compensation for the role they took on during the relationship;
  2. The needs of a person for the financial support and the ability of the other person to pay; or
  3. a previous agreement or arrangement between the parties regarding support.

To determine the amount of spousal support payable and the length of time in which it needs to be paid for, the courts will look at, including but not limited to:

  1. The length of time that you were living together;
  2. Your’s and your ex-partner’s assets and incomes, both current and future;
  3. Your ages and the ages of any children; and
  4. The physical and mental health of the parties.

DOMESTIC CONTRACTS

Cohabitation Agreements: Also known as “cohab agreements”. These agreements are made between two people who are cohabitating or who intend to cohabit, but are not married to each other. If two people have a cohabitation agreement and then get married, the agreement is deemed to be a marriage contract and the terms of the contract are continued throughout the marriage.

Marriage Contracts: Also know as prenuptial agreements or “pre-nups”. These contracts are made between two people who are married to each other or intend to marry each other.

Separation Agreements: Separation Agreements are made between two people who were cohabiting together, either as a married couple or not, and who are now living separate and apart.

Courts will generally try to uphold domestic contracts as they help to show the court what the parties’ intentions were. However, the court is much more likely to overturn a domestic contract if independent legal advice was not obtained. A lawyer can either help to review the contract with you and advise you of your rights and obligations under the contract, or they can draft the contract for you in order to ensure that no nuance is missed in negotiating and preparing the contract.

If you would like help with a domestic contract, such as negotiations, drafting or independent legal advice, we can help you in whatever way necessary.

PREPARING COURT DOCUMENTS

Proper and well-prepared court documents can go along way within the court system. Your initial application or answer needs to be accurate and include everything you are wanting, as a judge cannot order something that has not been asked for.

If you have not had to prepare court documents before, you may not know what you need to include, or what should not be included. Organized, well-thought out legal documents can help your point get across to the judge and support the claims that you are asking for.

Not only is it necessary for you to ensure that your court documents are complete, you need to make sure that all the court documents that are required are filed and properly served in order to ensure your matter flows through the court process in a timely and efficient manner. We can help you by preparing your court documents with your input and approval, and then serving and filing the documents while following proper court procedure.

IN-COURT REPRESENTATION

There are a number of different stages in a family court matter. They include: starting the process with pleadings, First Appearance, Case Conference, Settlement Conference, Motions, Trial Scheduling Conference/Trial Management Conference, and Trial.

Cases are often settled before trial, however representation in court can be a great asset in what is often a complex and intimidating process.

LIMITED SCOPE RETAINERS

The family court process can be long and expensive at times. If you would rather represent yourself in court or cannot afford legal representation throughout the entirety of your legal proceedings, a limited scope retainer may be an option for you. A limited scope retainer can provide for one-off services or a particular service that is specific to your needs. For example:

  • You could represent yourself in court, but have a lawyer prepare your legal documents;
  • You could have a lawyer represent you in court, but you prepare your own legal documents; or
  • You could have a lawyer negotiate with the opposing party or their counsel outside of court, while you represent yourself in court or prepare your own documents.

Regardless of your situation, we can discuss where you may need legal assistance, and what services would work best for you.

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