Here are some common divorce legal questions and answers courtesy of Community Legal Education Ontario.
Married or common-law, does it make a difference?
In this article, “married” means a couple who had a legally recognized marriage ceremony.
Couples who live together as spouses, but have not legally married each other, are sometimes said to be living “common-law”. Living together for many years, having children together, or referring to each other as “husband”, “wife”, or “spouse” does not make them legally married to each other.
For most family law issues, it does not matter if you and your spouse were legally married or living common-law.
But when it comes to the rules about property, there are some important differences.
What is property?
Property includes everything you own, for example:
- your home and any other real estate,
- your car and other vehicles,
- personal items, such as clothing, jewellery, books, and CDs,
- household items, such as furniture, appliances, and electronic equipment,
- bank accounts, RRSPs, investments, insurance policies, pensions, and other financial assets, and
- any businesses.
Property division for married couples
The Family Law Act is the Ontario law that deals with the division of property for legally married couples. When a married couple separates, usually each spouse keeps their own property but they share any increase in the value of their property that happened during their marriage. Usually this means that one spouse must give the other spouse an “equalization payment”. This is explained in the next section starting below.
Usually a spouse’s behaviour does not affect how property is divided.
The time limit to make a claim for an equalization payment is 6 years after the separation or 2 years after a divorce, whichever is sooner. Sometimes a court will give an extension of time to make a claim.
If a married couple separates, one spouse usually must pay the other spouse money called an “equalization payment”. There are two main steps to figuring out the amount of the equalization payment:
Each spouse must calculate his or her “net family property” (NFP). To do this, each spouse adds up the value of his or her property (less any debts) on the date of separation and subtracts the value of his or her property (less any debts) on the date of marriage.
The spouse with the higher NFP then pays the other spouse half of the difference. This is the equalization payment. Here is an example:
Special rule for matrimonial homes:
A “matrimonial home” is a home where a married couple had been living together just before they separated. There can be more than one matrimonial home, for example, a cottage could be included.
When calculating a spouse’s NFP, the value of his or her property on the date of marriage does not include any home that is a matrimonial home on the date of separation. This means if the same spouse still owns the home on the date of separation, his or her NFP will include the home’s entire value, not just its change in value during the marriage. This can have a big effect on how much the equalization payment will be, or who must pay it.
It is hard to know in advance if a particular home will be considered a matrimonial home because a couple may not know where they will be living if and when they separate.
What is child support?
Parents who do not live together sometimes have an arrangement where a child lives most of the time with one parent. This arrangement can be in writing or not. If it is in writing, it is usually included in a “separation agreement” or “court order”.
The parent the child lives with most of the time usually has most of the expenses of raising the child. The other parent must help with those expenses by paying money to the parent the child lives with.
This is called child support. The parent who pays child support is called the “payor” parent.
Who must pay child support?
Every parent has a legal duty to support their dependent children to the extent that they can. A parent can be the birth mother or father, an adoptive parent, or sometimes a step-parent.
A step-parent is someone who has treated their spouse’s children as members of their own family. It does not matter if the spouses were legally married to each other or living common-law. But the more time that has passed since the step-parent had an ongoing relationship with the child, the less likely it is that the court will order the step-parent to pay child support. This is especially true if their social and emotional relationship with the child has ended.
More than one parent could have a legal duty to pay child support for the same child. For example, if a child’s birth parent and step-parent separate, the other birth parent and the step-parent might both have to pay support for the child.
A biological father has a legal duty to support his child financially. This is true even if he was never married to, lived with, or had an ongoing relationship with his child’s mother. If a man denies that he is the biological father, a court can give him a chance to have a blood or DNA test to find out. If he refuses, a court may assume that he is the biological father.
How do you arrange for child support to be paid?
Some parents are able to work out a support agreement on their own. They can use the Child Support Guidelines to see how much support a judge might order. There is more information about the Child Support Guidelines later in this article.
It is a good idea for one of the parents to get a lawyer to put the agreement in writing and the other parent to get a different lawyer to check it. That way each parent can make sure it says what they meant, and that it protects their rights and their children’s rights.
Some parents need help to work out a support agreement. They can go to a family mediator who will help them work out an arrangement they can both accept. Because a mediator cannot give legal advice, it is best for each parent to take a copy of the agreement to their own lawyer before they sign it. Then the signed agreement should be filed with the court.
Parents who cannot agree about support payments should get legal help. Each parent should hire a separate lawyer. The lawyers may be able to negotiate support terms that both parents accept. If not, they can go to court and ask a judge to decide. The judge will make a court order saying how much child support must be paid.
How is child support determined?
The amount of child support is based on the Child Support Guidelines unless the parents agree to something different.
Parents who reach an out-of-court agreement about support do not have to apply the Guidelines. But they should look at the Guidelines before deciding how much support will be paid. If they do not apply the Guidelines, their agreement should say why not. If the court is later asked to consider the amount of support, the judge can change the amount to reflect the Guidelines.
What is spousal support?
Spousal support is money paid by one spouse to the other after they separate or divorce.
Spousal support is almost always paid by the spouse with the higher income to the spouse with the lower income. The gender of the spouses does not matter.
Who can get spousal support?
Both married and unmarried (common-law) spouses may be able to get spousal support, or may have to pay spousal support. If the spouses are not married, they must have lived together as a couple:
- for at least 3 years, or
- for any length of time if they were in a relationship of “some permanence” and had a child together.
What is spousal support for?
The purposes of spousal support are to:
- recognize a spouse’s contributions to the relationship,
- share the financial costs of caring for a child,
- relieve financial hardship,
- help a spouse become able to contribute to his or her own support, or
- correct any economic advantage or disadvantage to a spouse caused by the relationship or the relationship breakdown. For example, if a spouse gave up their job to care for the children, they may not be able to become self-supporting right away.
In most situations, spouses are expected to try to become self-supporting as soon as possible.
How do you get spousal support?
Spousal support can be negotiated and agreed on by the spouses and written into a separation agreement. This is often done along with other issues such as child support, parenting arrangements (custody and access), and property division.
Lawyers and mediators can help the spouses reach an agreement. But if the spouses cannot agree, a judge or arbitrator can decide.
There is more information about these topics in other articles in CLEO’s Family Law Series. Click here to find out how to order copies.
How do judges decide on spousal support?
A judge may decide that one spouse must pay support because of his or her ability to pay and the other spouse’s financial need. Or the reason may be to compensate the other spouse for unpaid work that he or she did during the relationship.
If the judge decides there should be spousal support, the judge must then decide the amount of support and for how long it must be paid. The judge will take into account things such as:
- the length of the relationship,
- whether there are children and what arrangements have been made for them,
- the roles the spouses played during the relationship,
- the age of each spouse, and
- each spouse’s financial situation.
The judge may also consider the Spousal Support Advisory Guidelines (SSAGs).