Legal Issues

Table of Contents

Custody/ Parenting
Access/Contact
Enforcing Access
Child Support
Retroactive Child Support
Guardianship
Grandparent’s Rights
Relocating with the Children (Mobility)
Adoptions
Divorce
Spousal Support
Spousal Support Advisory Guidelines
Matrimonial Property
Common Law Relationships
Same Sex Relationships

 

Custody/ Parenting

(Depending on the circumstance the title Custody or Parenting may apply)

When parents have children, both parents have equal rights to make decisions on behalf of the children. When parents separate, the issue of custody of the children becomes relevant.

Custody refers to two things: the ability to make decisions on behalf of the children and where the children live on a day-today basis. If parents together cannot agree the Court will decide based on the best interests of the children.

Parents do not have to view custody as an all-or-nothing issue. More frequently the Courts are making orders for joint custody, shared custody, or split custody. Our lawyers have extensive experience in obtaining appropriate and workable custody arrangements, either by assisting the parents to reach an Agreement, or by obtaining a Court Order.

 

Access/Contact

Access/contact refers to the time the non-custodial parent will spend with the children. In almost all cases, regular contact with both parents is viewed to be in the best interests of the children and will be enforced by the Courts.

In rare circumstances, it is not appropriate for a parent to have access unless it is supervised. Those circumstances are where children would be placed at risk, history of drug/alcohol abuse, sexual, physical or verbal abuse, negligence, or long term absence.

It is not advisable for any parent to refuse access to another parent without speaking to a lawyer first.

Our lawyers can assist you in arranging an appropriate parenting plan.

 

Enforcing Access

Sometimes a parent becomes frustrated when the other parent appears to be refusing to allow the children to see him or her. The other parent may be refusing access, even with an Agreement or Court Order in place. There are legal remedies that a parent has to enforce access to the children. If you are in a circumstance where you are being denied access to your children, you should speak with one of our lawyers about the legal remedies that you might have.

 

Child Support

Our laws recognize that support for children is an obligation of both parents. The Federal Child Support Guidelines prescribe the amount of child support that should be paid in the circumstances. There are two components to child support under the Guidelines: the monthly child support obligation (table support); and additional expenses (Section 7 expenses), which vary from child to child.

Sometimes when a parent’s income is not straightforward, the child support amount is not clearly defined. You should consult with one of our lawyers if you wonder whether you are paying and receiving the correct amounts of child support.

Most people believe that once child support amounts has been set, that it will not change. This is an incorrect assumption: the child support amount you receive or pay should be reviewed regularly based upon your current income, your ex-spouse’s current income, and the Section 7 expenses of the children.

For more detailed information on the Child Support Guidelines see www.canada.justice.gc.ca/en/ps/sup, or speak to one of our lawyers.

 

Retroactive Child Support

Once your Agreement or Court Order sets the amount of child support that you should receive, you may think that this amount is final, but this is not the case. You may be able to request an increase in child support if the income of your ex-spouse has increased. Your ex-spouse is obligated to provide his or her income information to you.

You may also be able to receive money for past years when your ex-spouse had an increased income but you did not receive an increase in child support. If you wish to have your child support Order or Agreement reviewed, please contact one of our lawyers.

 

Guardianship

 Being a guardian to a child allows the person to make decisions on behalf of the child. The rights of being a guardian can be changed by a custody order.

Our laws create a presumption that both parents are guardians of the child when:

• The child is born to parents who are married or later marry
• The child is born to parents who reside together for at one year prior to the child’s birth

Even if law does not presume guardianship, the Court can declare that both parents are the guardians of the child, if the circumstances are correct.

Guardianship can also be granted to someone who is not a parent to the child by a will or by a Court order.

 

Grandparent’s Rights

 A grandparent can enforce his or her right to see a grandchild in certain circumstances where one parent is denying them access to the grandchild.

 

Relocating with the Children (Mobility)

Will a parent be allowed to move with the children to another City, Province or even out of Country? This is a question that is common after parents divorce and start their new lives with a new spouses or new career opportunities or when they wish to relocate themselves to a place where they have family and friends to support them.

If the parents cannot agree on the move, then the Court will make this decision. Whether the Court will grant the move depends on the particular factors of your children and ultimately what is in their best interests.

 

Adoptions

Adopting a child can be a daunting and complicated process. The child becomes the legal responsibility of the adopting parent. Time limits, notices and information are strictly enforced. The end result, however, is the integration of a legally recognized family.

 

Divorce

You can obtain a Divorce Judgment after you have met one of the three grounds for divorce, which are:

• Having lived separate and apart from your spouse for a period of one year or more;
• Proving that your spouse has committed adultery during the marriage; or
• Proving that your spouse has been physically or mentally cruel to you.

If you have already reached an Agreement on issues of custody, access and support, or if these issues do not apply to you, you can generally be able to proceed with obtaining an uncontested “desk divorce”. This procedure is where the paperwork is submitted to a Judge without the need for you or your lawyer to appear in Court.

 

Spousal Support

 When parties separate, sometimes there will be an obligation by one spouse to pay support to the other spouse. The circumstances of the parties must first show that there is entitlement for one spouse to receive support from the other. If the circumstances show that there is entitlement, then the issues to decide upon are how much support will need to be paid and how long the support will be paid. This is an area of law that some criticize as being unsettled.

If you were not married but reside together, one spouse may be entitled to Spousal Support providing the length of time that the spouses lived together was three years or more or if the spouses have a child together.

We often see different results in similar situations. If Spousal Support is an issue in your circumstances, you should discuss your options with one of our lawyers.

 

Spousal Support Advisory Guidelines

 Due to criticisms that spousal support awards were inconsistent and widely divergent, an Advisory Group was formed by the Federal Government to produce the Spousal Support Advisory Guidelines. These guidelines are advisory only, and the Courts are not obligated to follow them. They are meant to provide a starting point for spousal support negotiations or Court Orders. Lonny Balbi, QC, of Balbi & Company is a member of the Advisory Group in Family Law based in Ottawa.

 

Matrimonial Property

 In general, the property that is accumulated during the marriage is divisible equally between parties. One party may be entitled to an exemption for certain property under our legislation. Matrimonial property will include any asset acquired during the marriage, whether it was in joint names or not.

 

Common Law Relationships

If you are living with someone and in a romantic relationship with them but you are not married, there are still legal rights and obligations that you owe each other. You may have a right or obligation to divide property that is owned only by one of you. You may have a right or obligation for Spousal Support. If you have children together, then you have issues of guardianship, parenting, parenting time, and child support to deal with. This is a complicated area of law and you may wish to consult one of our lawyers to receive advice on your specific circumstances.

 

Same Sex Relationships

Same-sex couples who live together or get married need to consider the ramifications of a separation. The law recognizes that where children are present, there will be issues of custody, access and child support. Further, one spouse may need to support the other one following the break down of the relationship. There are also property division issues as well. The law requires that certain time limits need to be adhered to in order to allow these actions to proceed. In most cases, the rules governing Same-sex relationships are very similar or the same as the rules governing common-law or married couples.