FREQUENTLY ASKED QUESTIONS

Are foreign marriages recognized in Canada?

Yes, foreign marriages are recognized in Canada if they are valid under the laws of the country where they were performed. Courts may also assess whether the marriage complies with Canadian public policy. If valid, a foreign marriage has the same legal effect as one solemnized in Canada.

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Are common-law partners able to claim spousal support?

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Yes, common-law partners can claim spousal support under section 29 and 30 of Ontario's Family Law Act, R.S.O. 1990, c. F.3 (FLA) if they lived together for at least three years or have a child together in a relationship of permanence. The court will consider factors like financial need, income disparity, and contributions to the relationship. Spousal Support Advisory Guidelines (SSAG) assists with determining appropriate amount and duration of payment.

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How is child support calculated?

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Child support is calculated using the Child Support Guidelines, O. Reg. 391/97, which are based on the payor’s income, the number of children, and the parenting arrangement. Courts often rely on Line 15000 of the payor’s tax return to determine income. The courts can impute a higher income in certain circumstances, including for intentional underemployment or unemployment, or for self employed income earners where inappropriate expense deductions are made to reported income.

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How is spousal support calculated?

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Spousal support is calculated based on the FLA and guided by the Spousal Support Advisory Guidelines (SSAG). Courts consider factors like the age and health of the parties, the parties' income, the length of the relationship, financial dependence, on going parenting responsibilities, future earning potential, and any economic sacrifices made during the marriage.

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What factors do the court consider when determining child custody arrangements?

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The court’s primary consideration is the child’s best interests. See section 24 of the Children’s Law Reform Act, R.S.O. 1990, c. C.12 (CLRA). Relevant factors include the child’s needs, each parent’s ability and willingness to care for the child, the proposed parenting plan, the child’s relationship with each parent, relationship history and parenting roles, any criminal records, domestic or family violence, the willingness of a parent to encourage a child’s relationship with the other parent, parenting stability and consistency, the child’s views and preferences (depending on age and maturity), e.t.c.

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Is there any difference between a separation and a divorce?

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Yes, separation refers to spouses living apart without legally ending the marriage, while divorce is a legal process/order that terminates the marriage. Pursuant to the Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) only divorced individuals can remarry. Separation does not require court involvement, and legal agreements can address post separation issues like parenting plan, support and property division. It is possible to be separated but still living in the same household, under certain circumstances. Reconciliation for a period exceeding 90 days would nullify the preceding separation.

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What are the grounds for divorce in Canada?

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The Divorce Act specifies that the only ground for divorce is a breakdown of the marriage. This can be proven through one year of separation, adultery, or cruelty. Most divorces are granted based on separation, as it does not require proving fault. Before granting a divorce order, the Court will typically require confirmation that arrangements have been made for child care and support, where applicable. 

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How are pets viewed during divorce/separation?

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In Ontario, our furry friends (pets) are treated as personal property. The court considers ownership, which may include who paid for or cared for the pet. Unlike child custody, courts do not assess the pet’s best interests. While agreements about pets can be made, disputes may require legal resolution.

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How is property divided after separation?

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After separation, married spouses are entitled to an equal split in the difference of their Net Family Property. This is called Equalization. The Family Law Act allows for certain deductions and exclusions from equalization, including pre marriage assets and inheritance. In short marriages or where a spouse has recklessly dissipated assets or incurred debts, the Court may allow for unequal property division to avoid an unconscionable outcome.

 

Unmarried couples are not entitled to same property rights available under the Family Law Act. However, depending on the circumstances of their case, the may be entitled to make a constructive trust claim to prevent an unjust enrichment of one spouse, typically after a lengthy common law relationship, involving children or joint family venture.

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Can grandparents legally secure visitation rights in Canada?

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Yes, grandparents can seek visitation rights under section 21 of the Children's Law Reform Act. They must prove that access is in the child’s best interests, considering factors like the child’s needs and the relationship with the grandparent. Courts may prioritize the parents’ decision-making but intervene if access serves the child’s well-being. Recent case law supports grandparent rights where it is the child’s best interests to allow access to the grandparents.