FAQ

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The goal of collaborative family law is to allow those who are in the middle of a divorce or separation, to work in a collaborative manner with one another, their lawyers, and any specialists, with a goal of a mutually agreeable resolution. Once such a resolution is reached, it will be memorialized into a valid, binding agreement. The goal of collaborative family law is to avoid the adversarial nature, that is often inherent in splits that end in litigation. Collaborative family law operates under the assumption that the parties involved are ultimately in the best possible position to make the decisions regarding not only their own best interests but also the best interests of their children.

These meetings are client-driven, so far as date, location, and time of the meetings, as well as determining which issues will be discussed. The parties are strongly encouraged to reach decisions and discuss their feelings while making arrangements for custody and access, property division, spousal support, child support, and any other issues associated with the divorce or separation. Collaborative lawyers offer support, or advice on legal issues, with a goal of ensuring the entire process remains positive and productive. There are specific guidelines used during collaborative family law meetings. These guidelines include:

• Never attack one another, rather attack the concerns and issues at hand.
• Rather than taking an unyielding position, each party will express himself or herself in terms of needs, interests, or a hoped-for outcome.
• The goal for both parties should be to produce the most acceptable, constructive agreement for all members of the family.
• During the four-way meetings, all parties will remain respectful, will use one another’s first names, and will not interrupt when another person is speaking. Language which blames or finds fault should always be avoided, and the terms “fair” and “unfair” should also be avoided whenever possible. Words such as “acceptable,” “agreeable,” and “workable” should be used, as well as “unacceptable,” “unworkable,” and “not agreeable.”
• It is important that each party speaks for himself or herself via “I” statements rather than “you” statements.
• Partners are encouraged to state what they observed, how they feel about the observation, what they think about the observation, and what they would like to happen regarding the observation. As an example: “I noticed that you were late three times last month when picking up the children. That made me feel worried about making our schedules work, and unhappy for the children who had to wait and wonder if you were coming. I think we need to try to keep regular schedules for the children and would like to see the schedule adhered to so the children are not disappointed.”
• Following an observation statement, then the other party is allowed to speak. The first person to speak should practice active listening, working to understand the replies from the other person without judgment. If you do not understand, ask for clarification and try restating what you think you heard in different words.
• It is important to understand that saying, “I understand,” is not the same thing as saying, “I agree.”
• If you have a concern, raise it, followed with a constructive suggestion on resolving the concern.
• If something simply does not work for you, be sure to tell your lawyer so the issue can be addressed at the next meeting.
• Be willing to commit to the time required for collaborative family law, and always come to the meetings prepared.
• Finally, practice patience—delays can occur, even when all parties are acting in good faith.

Three things must be proven when applying to a court for a legal divorce in Ontario—you must be able to show you were legally married, (usually via a marriage licence), you must be able to clearly show that a breakdown of your marriage has occurred, and you must live in the province or territory where you are applying for a divorce, and have done so for a year prior.

If you were married in Canada but now live in a country that does not recognize the marriage, you may still be able to obtain a non-resident Canadian divorce. Unfortunately, a non-resident divorce can be complicated.

A separation agreement is a contract between two people who once lived together and are now living apart from one another, explaining the rights and obligations of each spouse. Property division can be addressed, with such issues as whether the matrimonial home will be sold, who gets the family vehicle(s), and whether bank accounts will be shared. If spousal support is an issue, it will be addressed, as well as financial support for children of the relationship. The separation agreement will detail where the children will live, and when access will be granted to the other parent. All of these issues, as well as any other issue which could conceivably arise as the result of separation, can be addressed in a separation agreement.

It is always a good idea to seek legal advice from a lawyer before signing a separation agreement. Your lawyer can help you understand the rules necessary to make your separation agreement as well as your rights and responsibilities toward your spouse and children. While you can make a separation agreement any time after you separate, some issues do have time limits. As an example, you have six years from the date of your separation to divide your property, but only two years from the date of your divorce to divide the property. There is no requirement that you wait until you and your spouse are in agreement about everything prior to making a separation agreement.

• Those involved in your children’s care (teachers, daycare workers, doctors, etc.) will know what has been agreed on between parents and can act accordingly.


• A separation agreement can be used to get assistance from the Family Responsibility Office if there is a problem getting spousal support or child support.


• A written separation agreement makes it easier to prove the arrangements made by you and your spouse than if you only have a verbal agreement.

• A separation agreement is a legal, binding contract when signed by both parties in the presence of a witness, and properly dated.


• All dates, names, account numbers, addresses, etc., need to be listed accurately.


• Assets must be specifically listed and itemized, described in detail to avoid confusion down the road.


• Make sure the provisions in your separation agreement are realistic—provisions that are unrealistic can result in conflict or even a breach of the agreement.


• Always involve a lawyer in your separation agreement. It can be dangerous to use a “kit” from the internet, which involves boilerplate clauses.


• If and when you divorce, the court will likely take the contents of your separation agreement into consideration.


• The terms of your separation agreement are likely to be recognized by the court as long as the terms of the agreement are fair to both parties.


• The date of separation is important when you apply for a divorce since divorce cannot be granted until you and your partner have lived separate and apart for a full year or more.


• The division of property and liabilities are also calculated from the date of separation, so this date is extremely important.


• If it is impossible, economically, for you and your partner to physically separate into two homes, you still can live separate and apart while living in the same home.


• Because a separation agreement can potentially be challenged in court and set aside, it is critical that you have a Certificate of Independent Legal Advice attached to your separation agreement. This ensures there was no duress, no misrepresentation by one partner, no unjust or unfair provisions, and no undue influence involved in the separation agreement.

• Compensation for a spouse who has sacrificed his or her ability to earn income during the marriage, due to lost educational or career opportunities;


• Compensation for a spouse who exhibits significant financial need as a direct result of the breakdown of the marriage;


• Compensation for a spouse who continues to care for the children of the marriage.

• The financial circumstances of each spouse;


• The financial needs of each spouse;


• The financial means of each spouse;


• The length of the marriage or the length of time the couple has lived together;


• Each spouse’s role in the marriage;


• How the roles of each spouse in the marriage affected their current financial situation;


• How the breakdown of the marriage affected each spouse’s current financial situation;


• The role and responsibilities each spouse will have in the ongoing care of the children;


• Whether there are prior orders, agreements, or arrangements regarding spousal support already made.

• Contractual Support is awarded when a marriage contract, cohabitation, separation, or another type of agreement exists, which specifies that one spouse will receive support in the event of a breakdown of the relationship.


• Compensatory Support is often awarded when one spouse has given up earning opportunities, educational opportunities, or career opportunities because of their role in the relationship. The goal with compensatory support is to prevent one spouse from bearing a disproportionate financial burden as a result of the marital role.


• Non-compensatory Support may be awarded when one spouse will experience substantial economic hardship as a direct result of the end of the relationship.

As noted, when parents divorce, if one parent is the residential parent of the minor child, while the other has access, the residential parent is presumed to spend money on the child on a regular basis. As such, the other parent will be required to pay child support.

Child support continues even if the recipient parent remarries or begins living with another person. It continues to be based on the payor’s income regardless of the recipient parent’s income or the new family income.

Child support is calculated and based on the Child Support Guidelines.

Child support is the right of the child. Neither parent can waive the child’s right.

Child support is usually applied for by one parent right after the separation, or when applying for a divorce, but can actually be done any time thereafter. Even in situations where the child spends an equal amount of time with both parents, the parent with the higher income may be required to pay child support. Parents can reach an agreement regarding child support on their own, prior to going to court, but the terms of the agreement must be in accordance with the Child Support Guidelines.

• The specific parenting arrangement (how much time the child spends with each parent, and which parent the child primarily lives with)


• Any special expenses, such as daycare for younger children, which is not covered in the child support table


• Whether there is any retroactive child support which accrued prior to the new court order


• Whether the payor parent has specific financial difficulties or undue hardships which make it difficult to pay child support

It is important to note that should the payor parent fail to make his or her child support payment, the other parent cannot deny access.

Barring evidence to the contrary, it is generally assumed that children benefit from maximum and regular time spent with both parents. When one parent keeps the child from seeing the other parent, this is, in essence, punishing the child. There are legal channels to use when the payor parent fails to pay child support, however, denying access is not one of those.

• Joint decision making (once joint custody)—best for parents who are able to communicate and collaborate in a constructive manner for the best interests of the child. Joint custody allows both parents to equally decide major decisions regarding the child.


• Sole decision making (once sole custody)—one parent makes all major, fundamental decisions for the child. The other parent may express an opinion regarding these important issues and has the right to be informed of the decisions, however, the custodial parent has the final say.


• Split decision making (once split custody) means one parent has custody of some of the couple’s children while the other parent has custody of the other children. This is rather rare because courts are usually unwilling to separate siblings.

• Shared parenting time (once shared custody) is a term often confused with joint custody. Shared parenting time refers to an access arrangement and has nothing to do with legal decision-making power. In a shared custody arrangement, each parent physically has the child for at least 40 percent of the time—time with the child is split as evenly as possible between the parents. A shared parenting agreement can exist apart from a decision making agreement.


• Parenting schedules (once access schedules) may be fixed—i.e., the access parent has the child on specific days at specific times, or the schedule can be open, meaning the schedule is flexible and determined by both parents. In other words, if one parent works shift work, which prevents a fixed access schedule, an open-access agreement might state the parent will have four overnight visits per month and one weekend visit—or whatever will work around that parent’s work schedule.


• Supervised access may be ordered when concern for the safety or well-being of the child while in the care of the access parent exists. So long as it is in the best interests of the child, The Divorce Act mandates maximum contact between the child and both parents. Supervised access may be ordered on a temporary basis, then the access could be changed to non-supervised. The person who supervises could be a relative, a friend, a social worker, or a Children’s Aid worker.


• No access orders occur only in extreme cases when there is evidence of child abuse or neglect, a serious drinking or drug problem, or when one parent has threatened to take or tried to take the child away from the other parent.

• The plan for the child’s care and upbringing by each parent


• The ability of each parent to properly care for the child


• The emotional ties present between each parent and the child


• The relationship between each parent and the child


• The length of time the child has lived in a stable environment


• Special requirements of the child


• The ability of each parent to spend time with the child


• Scheduling logistics


• Whether either parent has attempted to interfere with the relationship between the other parent and the child


• Depending on the age and maturity of the child, the wishes and views of the child


• Whether any abuse against the child or another family member has been perpetrated by either parent

When married or common-law spouses decide to split up, there are many issues that must be settled. While all of these issues have the potential to cause disagreements, property division is often one of the most contentious. Each province and territory has its own laws regarding property division, and while the laws are likely similar, having an Ontario divorce lawyer who is familiar with your specific province or territory is extremely important. In some provinces or territories, it can also make a difference as to whether you are married or are common-law spouses.
In most cases, while common-law partners may have the same right to spousal support as married couples, property division can be more complex. Equalization of property is only available for married couples.

Ontario considers couples who live together as spouses for at least three years—but who are not legally married to each other—to be in a common-law relationship, but when property division is the issue, the rules remain different between married couples and common-law couples.

Marriage is seen as an equal partnership under the law, so equal partners who are divorcing must equalize the division of property. Property brought into the marriage by either partner remains theirs (with some exceptions), however, if the property increased in value during the marriage, then that increase must be shared with the other spouse. Property acquired during the marriage is divided equally between the spouses. There are some exceptions meaning the split may not be exactly 50/50.

In the case of common-law couples, the law will generally look at any property bought during the relationship as belonging to the person who paid for the property. Because the division of property is uncertain when it comes to common-law partners, many choose to enter a cohabitation agreement prior to entering into a common-law relationship. This agreement will clearly spell out financial and property rights. If it turns out that one partner in a common-law marriage feels he or she has been shortchanged regarding the division of property, a claim for unjust enrichment can be made.

The matrimonial home is any residence or property that one or both spouses have an interest in—and can include a home that is rented, owned, or occupied by both spouses and their family on the day of separation. A matrimonial home can include condos, mobile homes, and even a sailboat if the couple uses it as a home. A vacation home used frequently by a couple could also be considered a matrimonial home in addition to the principal residence. The matrimonial home is treated a bit differently from other properties and assets owned jointly with your spouse. Since the matrimonial home may well be the largest, most valuable asset you own with your spouse, dividing the home can be challenging, to say the least.

You and your spouse both have the right to continue living in the matrimonial home until such time as the home is sold, or a judge orders one spouse to move out. If you and your spouse are legally separated while living in the matrimonial home and one of you moves out during the separation, the spouse remaining in the home is not allowed to change the locks to prevent the other from returning (barring unusual circumstances). The right to equal possession continues while the spouses are legally separated until a separation agreement is reached, or a family court judge grants one spouse the legal entitlement to have exclusive possession of the matrimonial home pending trial.

This legal entitlement granted by the judge will be in force no matter who holds title to the home. The spouse permitted to remain in the house may not legally sell or dispose of any furniture or other belongings until all issues related to the equalization of property are settled. It is worth noting that even if one spouse came into the marriage with the home, it became the matrimonial home when both spouses and children, if any, lived in the home as a family—unless the owner sells the home prior to the divorce. This is different for those in a common-law relationship; in most cases, the matrimonial home belongs to the spouse the home is registered to, absent a cohabitation agreement.