- How does the court decide on which parent to grant custody and access to?
- What is sole custody versus joint custody?
- Can custody and access orders be changed?
- What is a Parenting Plan?
- How much child support do I have to pay?
- Do I have to pay my spousal support?
- Does property get divided the same if I am legally married or common law?
Family Law FAQs – Answers
When determining who should be granted custody, courts will look at what is in the “best interests of the child”. There are several factors that will be looked at in determining custody, such as a child’s physical and emotional well-being and security; the parent’s plan for the child’s education and maintenance; the child’s financial needs; the child’s religious and ethical upbringing; the parent’s understanding of the child’s needs; the child’s wishes (this factor will increase in importance with the child’s age); the possibility of keeping siblings together; and the bond between the child and caregiver. Each case is fact specific so it is best to obtain legal advice about your rights and chances of obtaining custody.
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It is important to understand that the meaning of custody refers to the rights and responsibilities of the parent to make major decisions for the child. Major decisions generally concern education, religion, and non-emergency healthcare. Sole custody means that only one parent will make the major decisions for the child, and in most cases the child will primarily reside with this parent. The access parent (non-custodial) will still have a right to make inquiries about their child and obtain information concerning their education, health and welfare, but they are not involved in the major decision making and responsibilities. Joint custody means that both parents make the major decisions relating to the child’s education, religion and health jointly. Arrangements for physical residence can vary with joint custody, anywhere from one parent having primary residence, to the child dividing his/her time equally between both parents. It is important to note that unless both parties agree to joint custody, a court will not usually make such an order. The parents need to be able to communicate well enough with each other to make and agree on the major decisions.
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If there is a material change in circumstances for one or both of the parties, a court may change the terms of the custody and access arrangements. Some scenarios that can bring this about are as follows: as the child grows older, he/she may want to live with the other parent for a variety of reasons; one of the parents is moving to another city.
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In order to act in the child’s best interests, many parents will agree on a parenting plan that distributes decision-making between them and creates a residential schedule. The ideal scenario is where both parents can communicate well enough to negotiate such a plan together, as this will minimize conflict between them, minimize court and legal costs. Parenting plans can be negotiated by the parties alone, or with the help of a mediator, or with their individual lawyers. A parenting plan can be incorporated into a valid separation agreement and will become part of the binding contract. If a parent breaches the parenting plan, they are in breach of the agreement and the other parent may take steps to have the agreement enforced through court.
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Basic child support is determined by federal and provincial law under the Child Support Guidelines. The amount of support to be paid will generally be determined by the number of children and the payor’s income. For basic child support, the income of the recipient parent is irrelevant.
For instance, if the child resides primarily with one parent, the other parent will have to pay child support according to the Guidelines. The amount of child support to be paid under the Guidelines is meant to reflect the average cost for the child’s expenses. In cases where the payor in unable to pay the directed amount due to special circumstances that would be considered undue hardship, and a court may award a different amount to be paid. Some circumstances of undue hardship that a court will consider may include a parent with unusually high access costs; a parent with a legal duty to support another person or family; a parent with unusually high debts that were reasonably incurred to support the family before the separation. Similarly, in some circumstances, where the payor has an extremely high income, a higher amount of child support may be ordered.
Different residence schedules and different custody arrangements may also lead to different child support calculations and different support obligations.
In addition to basic child support, some cases also look at special and extraordinary expenses which will be above and beyond the basic support amount, and will usually be split equally or proportionately between the parents.
The issue of spousal support is not as clear cut as that of child support. The court will look at several factors to determine whether someone has to pay spousal support. Some of these factors include: the length of the relationship; the parties’ financial circumstances; the roles that each party fulfilled while living together; whether there as any prior express or implied agreements creating a support obligation upon separation, or waiver of such an obligation; whether one spouse suffered an economic disadvantage for contributing to the other’s economic advantage during the; whether the recipient spouse can support themself economically without the assistance of the other party.
The amount of support to be paid, and the length of time for payments will depend on the above factors and will be case specific. As well, the parties will need to exchange financial disclosure, prepare budgets, show past spending patterns during the relationship and showing a current need for support.
7. Does property get divided the same if I am legally married or common law?
Ontario legislation provides different rules and laws for the division of property if you are married or common law. For legally married couples, there is the right to an equalization of property, so that one party will make a payment to the other. To calculate payment owing by one spouse to the other, an accounting is made of the “net family property for each spouse.” In very general terms, net family property is a spouse’s net worth (assets, less liabilities) at time of separation minus their net worth at the time of the marriage (some exceptions apply). In the ordinary case, whoever has the higher net worth will make a payment of half the difference between the two net family property values to the spouse with the lower net family property.
For common law partners, the general property laws apply, with ownership going to the person on title or named owner. However, common law couples may also agree in a cohabitation agreement or separation agreement to divide property according to the same principles as legally married couples.
Both common law couples and legally married couples may also have access to the equitable doctrines of constructive and resulting trusts, which look at scenarios such as unjust enrichment, and other forms of contribution by a “non-owner” during a relationship in order to change the property division rights on separation.