The Divorce Test

This brief "Divorce Test" can help determine whether your marriage is on the right track or is it headed for divorce? Answer these questions to find out whether its worth giving your marriage another chance.

1. Are you able to forgive past wrongs or make amends?

 Absolutely not

 Maybe

 Yes, of course

2. Is there a pattern of abuse, drug addiction or repeated infidelity by one or both of the spouses?

Somewhat, one or more of these scenarios has occurred in the past.

Yes, one or more of these scenarios frequently arises.

 No, none of these scenarios has ever occurred.

3. Are either of you willing to change or adapt to your present circumstances?

Maybe.

Definitely.

Absolutely not.

4. Are you committed to seeing yourself as 100% innocent and your spouse as 100% guilty regarding the problems in your relationship?

No

Yes

Sometimes

5. Do you believe arguing is healthy?

 Yes

 Sometimes

 No

6. Do you have trouble communicating with your spouse?

 Yes, all the time.

 Yes, sometimes.

 No, never.

7. Are you satisfied with the sex life you have with your spouse?

Yes, completely.

 Yes, somewhat.

No, not at all.

8. Is money a major cause of arguments in your relationship?

 Yes, always.

 Yes, somewhat.

 No, never.

9. Do you trust your spouse completely?

Yes, most of the time.

No, not at all.

 Yes, all the time.

10. Do you believe that your marriage is worth saving?

Yes, I really want to make it work.

 Sometimes I do.

No.

11. Have you researched, planned, and prepared yourself legally and financially for divorce?

I have done some research and am somewhat prepared.

Yes, I am prepared.

No, I'm not ready at all.

COLLABORATIVE DIVORCE OVERVIEW

Does the Divorce Process Have to be Destructive?

Everybody knows how destructive and painful divorce, and particularly an adversarial divorce, can be. Most have heard stories about husbands and wives going to war,over the children,over child and spousal support,over division of assets, and taking their dispute to court with devastating results. The court process can be long, expensive, and emotionally traumatic for both of the spouses and the children. Can't there be a better way?

There certainly is – that is the Collaborative Approach to the divorce process. The Collaborative Approach offers divorcing couples a way of removing the adversarial element inherent in their divorce proceedings, and replaces it with an approach that consists of mutual respect and team problem solving. The Collaborative Approach creates and fosters an atmosphere of open communication and cooperation that assists the couple in shaping an agreement that best meets their needs and the needs of the children during the separation process and beyond.

What is the Collaborative Divorce Process?

Collaborative Divorce is based on the fact that an increasing number of separating spouses want to settle their issues with the help of professionals in an inexpensive, amicable and respectful manner. It's a cooperative, rather than competitive, method of resolving issues associated with the dissolution of a marriage and is based on full disclosure and empathy rather than on mistrust and trying to "win" through the use of antagonistic tactics and deceit. At its most basic, the Collaborative Divorce process seeks to develop a consensus between the separating spouses on a mutually beneficial settlement. This settlement can include the division of assets, spousal or child support arrangements and/or a plan for the ongoing care of children.

A Collaborative approach to the divorce process is different from other approaches to divorce such as litigation, self-representation, or mediation. Collaborative Divorce is a more respectful way to resolve family disputes as both spouses attempt to leave relationship as intact as possible. The process is thought to provide for a more durable outcome while maintaining the integrity of the participants. Furthermore, by helping families stay out of court, particularly when children are involved, the Collaborative Divorce process helps transition the family into post-divorce co-parenting in the healthiest way possible.

The Benefits of the Collaborative Divorce Process

The benefits of collaboration for a separating couple and their children are that it:

• Creates a safe and cooperative environment where the needs and interests of both the children and their parents can be met
• Employs problem-solving techniques that foster efficient resolution of the issues arising out of separation and divorce
• Allows couples to retain control of their separation and divorce process as well a degree of privacy they would not have if they took their matter to the public forum of a court
• Provides the separating couple with the flexibility to craft an agreement together, build confidence in their own dispute resolution abilities, and reach a consensus on a separation agreement
• Minimizes the parties' legal costs
• Provides a model that provides separating spouses a structure for both emotional support and legal guidance
• Requires the parties to provide timely disclosure of relevant financial information making the collaborative process efficient and effective
• Helps the parties maintain a respectful relationships following separation and divorce which is particularly important when children are involved
• Addresses and makes provision for the needs and well being of the children
• Helps newly- structured families begin new hopeful and healthy lives
  

Benefits of the Collaborative Divorce Process for Children

Studies have found that it is not the divorce itself that is most destructive to a child's well being, but rather the level of distress, conflict, and loss experienced by their parents as a function of the divorce process. If divorce is necessary, children deserve to have their parents do it as sensitively, sanely, and with as little conflict as possible.

The Collaborative Divorce process protects children in several ways.

• It is cost-effective, thereby protecting the financial resources of the family, (resources that are better directed toward the children's well being).
• The non-adversarial approach protects the ongoing relationship between the separating spouses and their children, building on the available good-will and recognition that their co parenting relationship will go on forever.
• When divorce coaches participate in the Collaborative Divorce process, they work to create the best possible family environment post divorce. Realistic parenting plans that really work are developed.  Should there be any future problems or if the children's developmental changes require an adjustment to the parenting plan, the family can return to their Collaborative Divorce team to make any necessary changes. 
• The Collaborative Divorce process can include Child Advocates whose job it is to understand the children's perspectives and to advocate for their best interests throughout the process.

Lawyers and a team of other professionals play an important role in the Collaborative Divorce Process.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you would like to know more about using a Collaborative Approach to negotiate n agreement with your spouse following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

Matrimonial property is property owned by either one or both of married spouses. The rules of how family property is accounted for and divided between spouses are set out in the “family law” legislation of each province and territory. For a comprehensive list of and links to this legislation please see the end of this article. It is important to note that this system of property division is only available to married spouses; common law spouses must use other remedies such as unjust enrichment and constructive trusts. Most family law legislation sees marriage as a partnership and looks at the assets accumulated during marriage as family property. In Canada, both spouses are deemed to have made equal contributions to the relationship, no matter what functions or roles they assumed in the family during their marriage. A married spouse who takes on the major share of household and child care responsibilities has the same right to property equalization as the spouse who makes a greater financial contribution. When a married couple decides to divorce, negotiating who should have what property - the house, the furniture, the car, for example - and how to divide other assets, such as investments or pension benefits, can be extremely difficult. Having outstanding debts makes this process even more difficult and more complicated. A lawyer can assist you in identifying and valuing your family’s assets and in then negotiating or litigating, if absolutely necessary, to achieve the best possible outcome for you.                                               

What Is a Family Asset?

A family asset is anything owned by you and your spouse together, or by either of you separately, and ordinarily used for a family purpose. The most common examples of family assets are the family home and its contents, family vehicles, bank accounts and investments, stocks, bonds and RRSPs. Other assets that are frequently also the subject of property division negotiations include frequent flyer miles, stock options, time shares, pets, inheritances, trusts, lottery winnings, family businesses, art, jewelry, antiques, guns, stamp collections and other collectibles, gifts, engagement rings, cemetery plots, and club memberships. Pensions earned by either you or your spouse during your marriage are also considered family assets for the purposes of property division on divorce. Personal items - such as jewellery or tools, - that were used by only one of you during the marriage will not usually be included as family assets, nor will any property you might buy after separation, unless you use a family asset, or money received from selling a family asset, to buy it.  A business owned by one spouse may be a family asset, if the other spouse contributed in some way, either directly or indirectly, to the start up or growth of that business. A direct contribution might be money or labour; an indirect contribution might be taking care of family and household duties so that the other spouse could concentrate on the business.

What Are Your Rights If You’re Married?

The law treats married couples and common-law couples (opposite or same-sex) the same way in many situations. However, there are some important differences when it comes to dividing property. When married couples separate or divorce, the right to divide property is covered by the provincial legislation that deals with the Family. A list of the relevant laws for each province and territory as well as links to the relevant site of each government is provided at the end of this article.

How Will Your Property be Divided?

Family legislation in all provinces and territories provides a regime for dividing the value of assets and debts that were acquired during the marriage. In the majority of cases each spouse must fill out some form of a financial statement. The financial statement lists all assets that each spouse owned on the date of separation, all debts that each spouse owned on the date of separation, all assets that each spouse owned on the date of marriage, all debts that each spouse owned on the date of marriage and any gifts or inheritances that each spouse received during marriage. The financial statement will be one of the important pieces of information used to calculate each spouse's entitlement to family property. Every Canadian jurisdiction, in some form or another, sets out the requirement of completing and exchanging financial statements.

Will You Have to Share Your Pension?

Pensions are treated the same way as any other asset accumulated during the marriage. That means the spouse with the pension gets credit for the value of the pension on the date of marriage, but will share with the other spouse the rise in the value of the pension during the marriage and until the date of separation. A pension typically needs to be valuated by a professional to establish its value on the date of separation.

How are Debts Dealt With When Dividing Family Property? If You Are Married

Generally, when you separate, both you and your spouse are responsible for the family debts - even debts that are in one spouse’s name only. Family debts are any debts that you or your spouse separately, or you and your spouse together, ran up during your marriage to buy family assets or pay family expenses, including mortgages and loans. It is up to you to arrange with your spouse how you are going to pay for family debts. However, you should be aware that while you and your spouse are both responsible for family debts, if a credit card, loan, etc., is in your name only, the credit card company or bank will consider you solely responsible for the payments - regardless of the payment arrangement you have with your spouse. They will seek payment from you, and it is up to you to seek payment from your spouse.

If You Are Not Married

When you separate, you will be responsible for any debts in your own name and any shared debts (a loan or a mortgage, for example, that both you and your spouse signed for). You will be responsible for debts in your spouse's name only if you and your spouse made an agreement stating that you will be responsible for each other's debts. As with married couples, however, a credit card company or bank will only look at whose name is on the card, and will seek payment from that person. If you have an agreement, it is up to you to seek payment from your former spouse.

After Separation

After you have separated, any debt you take on is usually yours alone. However, if you have joint credit cards, then both of you will be responsible for any money owing, even after you separate. We recommend you contact the credit card companies to let them know that you have separated and to have your name taken off joint credit cards.

If You and Your Spouse Agree on How to Divide Property

If you and your spouse agree to a 50-50 split of your family assets - or you both agree that a different division is fair - then you can go ahead and divide your property without having to go to court. We recommend that you put your agreement in writing and that you both sign it. The agreement about how to divide your property will usually form part of a larger, written separation agreement that covers other issues as well, such as child custody and support. That way, if you run into difficulty later on and your former spouse refuses to live up to the agreement, you can turn to the courts to have the agreement enforced. Signed separation agreements dealing with property will take precedence where they exist and might only be changed by a court if:

1. There is a legal flaw in the contract document,
2. There is legislation which allows a court to alter a domestic contract such as a separation agreement;
3. One or both of the parties did not disclose their assets at the time the separation agreement was negotiated;
4. Either one of the parties did not receive independent legal advice before signing the agreement
5. The agreement itself allows for judicial intervention.

Some provinces allow their courts to overrule such a contract or agreement if it is blatantly "unfair".

If You and Your Spouse Do Not Agree on How to Divide Property

If you cannot come to an agreement about how to divide your property, then you will need to apply to the appropriate court in your province or territory to ask for a judgment. Provincial courts do not deal with property division on divorce. You will have to apply to the superior court in your province or territory to obtain a judgment dealing with property. In making decisions about property, judges will look at which spouse brought what property into the relationship - the house or furniture or a cottage, for example - as well as what the spouses bought together. The judge will also look at the contributions made by each spouse during the relationship. These contributions may be financial (you paid the rent or mortgage, for example), or non-financial (your former spouse was responsible for all the childcare, cooking and household chores). Generally, you will be able to keep what you brought into the relationship and whatever has your name on the bill of sale. What you bought together, and what you contributed to, may be either divided or shared.

Which Avenue Should You Choose: Agreement or Court?

It is far better if you and your former spouse can negotiate an agreement about how to divide your family assets. If you can negotiate an agreement, either on your own or with the help of a mediator or lawyer, you will know with certainty, exactly with what property, or what value of property, each of you will be leaving the marriage. If you go to court to obtain a judgment you will have little or no control over the result, basically abdicating decision making about your life to a stranger – the judge. Additionally, going to court will:

• Cost you time. The court process is slow, and this will only increase the level and duration of stress you have to endure.

• Cost you money, in lawyers' fees and other costs. While you can choose to represent yourself in court, the forms and procedures are complicated.

Every divorce lawyer has an anecdote about one particularly nasty fight over a toaster, hammer, painting or other item of little or no dollar value. The fight is really about who gets the last word, not the item in question. You need to think about the amount of psychological and emotional energy and money you are willing to invest in order to get the satisfaction of having the last word. If you cannot come to an agreement about how to divide your property on your own, you might want to try mediation. This may involve some cost, but the cost will not be as high as going to court - and the faster you reach an agreement, the lower the cost. In conclusion, readers are strongly encouraged to seek out professional legal sources in their province to ascertain their specific rights in matrimonial property situations. There is too much at stake to try to actually resolve your situation through general legal information material such as this. Additionally, each province has unique matrimonial property division rules (which are sometimes in more than one law). We recommend you get good legal advice before you make any important decisions about dividing your family property.

PROVINCIAL AND TERRITORIAL FAMILY LAW LINKS

Alberta Matrimonial Property Act, R.S.A. 2000, c. M-8

British Columbia Family Relations Act R.S.B.C. 1996, c. 128

Manitoba Family Property Act, C.C.S.M. c. F25

New Brunswick Marital Property Act, R.S.N.B. 1980, c. M-1.1

Newfoundland and Labrador Family Law Act, R.S.N.L. 1990, c.F-2

Northwest Territories Family Law Act, S.N.W.T. 1997, c. 18

Nova Scotia Matrimonial Property Act, R.S.N.S. 1989, c. 275

Nunavut Family Law Act (Nunavut), S.N.W.T. 1997, c. 18

Ontario Family Law Act, R.S.O. 1990, c. F-3

Prince Edward Island Family Law Act, R.S.P.E.I. 1988, c. F-2.1

Quebec Civil Code of Quebec S.Q. 1991, c. 64

Saskatchewan Family Property Act, S.S. 1997, c. F-6.3

Yukon Family Property and Support Act, R.S.Y. 2002, c. 83

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to divide your family property following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

You have come to the unhappy conclusion that your marriage is over and you have decided to officially separate from your spouse.  You may have seen your separation coming for some time, with subtle but inevitable indications that you and your spouse have grown apart. Alternatively, the fact that your relationship with your spouse or partner is over may come to you as a complete surprise. You may have discovered that your spouse has been having an affair, and either you, or your spouse, have left the matrimonial home as a result. You may have decided that you can’t take an abusive situation any longer and you have moved out, or, perhaps, your spouse has been charged with domestic assault and there is a court order in place preventing them from returning to the matrimonial home. Perhaps you and your spouse have had a big argument and one of you has packed a bag and left the house. Now that they, or you have decided that it's over, what do you do next? Is there a formal separation process? What is it? How and where do you begin?

How Do You know if You are  "Legally" Separated?

If you are confused about what is the difference between separation and divorce, you are not alone. A "separation" occurs when:

• A couple’s relationship breaks down,

• They decide to ”live separate and apart”, and

• There is no reasonable prospect of reconciliation.

Couples who separate may either be married to each other, or they may be unmarried and living together in what is known as a "common-law relationship". A divorce, in contrast, is something that occurs when a marriage is officially ended by a court. Only married couples can divorce. A separation does not put an end to a marriage. You remain legally married while choosing to live separate lives. In certain situations, spouses may be considered to be “living separate and apart” even though they are not physically separated. You can indeed “live separate and apart” but share your home with your spouse or partner for financial reasons, or because it is in the best interests of the children to remain in the matrimonial home until custody, access and support arrangements have been worked out. In other words, the question of whether you are separated depends on the specific circumstances of your family’s situation.

Separation is generally seen to have occurred:  when conjugal relations have ceased; when the spouses live largely separate lives and have separate routines; and when at least one of the spouses has decided that their relationship had come to an end. When at least one of the spouses no longer resides in the matrimonial home, the parties’ separation is more clearly evident. If you separate and/or divorce, you and your former spouse will need to make decisions and arrangements about a number of different issues — such as how to deal with your family residence and who will pay family debts. If you have children, you will also need to make decisions and arrangements about who will take care of the children, who will have custody, and how the children will be supported financially.

For a divorce in Canada based on separation, you can file your divorce after your separation begins - however, the divorce cannot be finalized until you have been separated for a full year. There is no such thing as a legal separation in Canada, although the term is frequently encountered in the United States. Provincial and territorial laws regarding support, custody and access apply to separated couples, both those who are married and those who have been living in common law relationships.

In order to be able to apply for a Divorce in Canada you and your spouse must have been separated for a minimum of one year. The federal Divorce Act applies to married couples once they apply for a divorce. The issues of parenting arrangements and child and spousal support are determined according to the provisions of the federal Divorce Act. Certain other issues, such as the division of matrimonial property, remain under relevant provincial or territorial laws. Different laws apply to different types of couples because the federal, provincial and territorial governments share responsibility for family law under Canada’s Constitution. The federal government is responsible for making laws related to divorce. The provinces and territories are responsible for making family laws related to unmarried couples, married couples who separate but have not yet applied for a divorce, and matrimonial property. The provinces and territories are also responsible for the administration of justice. This includes the enforcement of support and custody orders and the provision of family justice services such as parent education and mediation.

Why is the Date of Separation Important?

Many individuals ask why the date of separation is important? The fact is, under Canadian law, specifically, the Divorce Act, a married couple must have considered themselves separated for an entire calendar year, that is twelve months, before a judge is able to grant a divorce. There is another, more practical reason why the specific date of separation is important. The date of separation is one of the factors taken into consideration when a couple tries to fairly divide their assets. In some jurisdictions this separation date is referred to as the valuation date. This date is not always important for most couples and really only comes into play when one of the spouses has acquired a substantial asset around the date of separation.

Do You Need A Separation Agreement?

There is no specific legal document required to prove or formalize a marital separation. Many separating couples believe that they need to attend at court or complete complicated legal paperwork in order to be considered legally separated. Since there is no such thing as a legal separation in Canada, there is similarly no requirement for any formal documents to be written or signed for a couple to be considered separated. A separation agreement, however, does offer many advantages to a separating couple.

A separation agreement can protect your interests until the decision is made to file for divorce. The separation agreement also sets a precedent for the terms of the divorce that may follow. If you choose to obtain a divorce after having negotiated and signed a separation agreement and your case goes to court, a judge is likely to assume that since you were satisfied with the separation agreement, its terms should carry over to the terms of the divorce. For that reason, it is important that if you negotiate a separation agreement that you can live with it in the long term.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about your rights when you separate following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

If you and your spouse or partner cannot come to an agreement on your own, and if you do not want to go through the court process or to fight, a mediator may be able to help you communicate better with each other and reach a reasonable  agreement. Mediators are neutral third parties who can help you work out an agreement on a variety of issues related to your separation and / or divorce,  including support payments, the division of property, and custody of and access to your children. You should review any agreement you reach during mediation with a lawyer before you sign it. For mediation to make sense for your situation, you must be willing to work with your spouse and negotiate, with them That means that you must feel safe meeting with your spouse in order to discuss your issues. You must also be able to communicate your needs and be able to really listen to your spouse’s concerns. The very first thing that you need to do is be able to agree on the same mediator who will work with both of you to decide on how best to handle the major divorce issues which confront you.Mediation is not right for everyone, particularly in cases where there has been violence or abuse.

The Benefits Mediation

• Mediation is voluntary. Parties are not legally bound to participate and may leave at any time.

• It allows parties to work out their own solution rather than have a decision imposed on them by the court. The solutions are better because you have greater input on the terms of settlement.

• People are more likely to stick to an agreement which they reached through mediation as opposed to one that has been imposed on them by the courts.

• Mediation is quicker and cheaper than the court system.

• If children are involved, it keeps the focus on their best interests.

• Mediation is voluntary. Parties are not legally bound to participate and may leave at any time.

• It allows parties to work out their own solution rather than have a decision imposed on them by the court. The solutions are better because you have greater input on the terms of settlement.

• People are more likely to stick to an agreement which they reached through mediation as opposed to one that has been imposed on them by the courts.

• Mediation is quicker and cheaper than the court system.If children are involved, it keeps the focus on their best interests.

• Mediation helps you to avoid destructive divorce proceedings which will inevitably have an impact on your children.

• It may reduce future conflict by improving parties' communication and problem solving skills.

• Mediation is less adversarial and less formal than court.

• Unlike going to court, it is a private and confidential process and is therefore, can produce decisions which are more flexible than those imposed by a court.

How Do You Choose a Mediator

You and your spouse must agree on who the mediator will be. While mediation does not have to take place with a trained mediator it should. It should also be conducted by someone that either both the clients and/or their lawyers feel is objective and knowledgeable with respect to the issues to be mediated. The cost of mediation is usually split evenly between the parties.

It is important that you ask questions to ensure that the mediator is right for your situation. A qualified mediator will usually have an advanced academic degree, as well as documented training and certification in mediation. It is helpful if the mediator also has a designation from a provincial or national mediation association guaranteeing that they have completed a rigorous training and screening program and has met that association's criteria for membership. You should also ask questions about the mediator’s preferred style. Some mediators believe that their function is to listen, rephrase things and, generally, support the participants in whatever they say and only gently prod them towards agreement. Other mediators may push the parties aggressively to reach an agreement.  It can be dangerous to retain an overly- assertive mediator because, the parties might end up with an agreement which is really the medaitor’s agreement and not their own. All participants in mediation should explore the candidate-mediator's style with the candidate during the period of time that the mediator is selected - but before starting the mediation itself.

What to Consider When Choosing a Mediator:

• Type and amount of family mediation training relating to your issues

• Professional background (for example: law, social work, education, psychology)

• How mediation fees are set and how they can be paid

• Times and dates that mediation sessions can be scheduled

The Mediation Process

The mediator’s role is to assist parties to reach a fair and lasting settlement. As the mediator is a neutral party, he or she will not take sides or make decisions for the parties. You should consult with a lawyer prior to commencing mediation. Some people bring their lawyer to the mediation meetings with them. Mediation consists of a series of settlement meetings between you and the mediator. These meetings take place whenever all three parties are available. The length of time required to reach a resolution will be dependent on the number and types of issues which need to be mediated, the degree of conflict between you and your spouse, and the degree of communication and cooperation between you as well. Prior to the mediation, the lawyers or their clients prepare a summary of the facts of their case, the issues in dispute and the clients’ positions on those issues.In mediation, lawyers tend to be involved more as advocates for their clients rather than facilitators of settlement. Mediation can take place without lawyers being present, and while nearly all mediations take place without the lawyers being present, the lawyers are in the background advising their clients. Following the mediation the mediator will prepare a report on the outcome. This report will often include the mediator’s suggestions and sometimes even a draft or signed agreement between the parties. Typically, the lawyer acting for one of the parties will draft a separation agreement based on the mediator’s report.

If You Can't Reach an Agreement

If, after giving mediation a fair try, you have not been able to reach an agreement, ou can still go to court. Normally, after a session or two of mediation, the mediator will be able to tell you whether he or she believes that the mediation will be productive. You'll be able to see this yourself. If you opted for closed mediation, everything that happened or was said during the mediation will remain confidential, so the court will never find out about what had been discussed.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to approach mediation following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

Both parents have a legal duty to support their children financially, even after divorce. Once you have worked out the residential arrangements for your children, you will need to deal with the issue of child support.  Child support is the amount of money paid by one parent (the Payor) to the other (the Recipient) for the care and upbringing of dependent children. A parent or step-parent may be obligated to pay child support even if they were not married to, but just co-habitated with, the child’s parent. The amount of money one person pays the other for the support of children in the care of that other person is called child support and is now determined by the Child Support Guidelines (commonly referred to as the "Guidelines"). To calculate your child support payments use child support calculator.

The guiding principle of Canada’s child support law is that children should continue to benefit from the financial means of both parents just as they would if the parents were still together. Therefore, if you are divorced or separated from the other parent, you are still both responsible for supporting your children financially. Your children need the support of both parents. They are also entitled to it by law if they are under the age of majority and still dependent on their parents. The age of majority in Canada is 18 or 19 years, depending on the province or territory where the child lives. If your children are over 18 or 19, they may be entitled to support if they cannot become independent because of an illness, disability or "other cause". Courts often order parents to support an older child going to university or college after they finish high school. This level of education can be considered a valid "other cause" in certain families. Otherwise, financial support for an older child is optional.

Child Support Laws

In Canada, there are provincial/territorial guidelines and the Federal Child Support Guidelines. The guidelines that are used, either by a judge or by parents, depend on the situation of the parents. The Federal Child Support Guidelines are used if the parents were legally married to each other and are obtaining or have obtained a divorce. If both parents live in a province that has chosen to be "designated" (currently, the designated provinces are Manitoba, New Brunswick and Quebec) the provincial, not federal guidelines, apply. Provincial or territorial child support laws are applicable is the parent have never been married to each other or if they are  married but are only separating (not getting a divorce). Most of the provincial and territorial guidelines are a lot like the federal guidelines. You may wish to contact your provincial ministry of Justice for more information. Whether you use provincial, territorial or federal guidelines, these guidelines are the law.

Definition of “child” for Child Support Purposes

The Divorce Act defines a “child of the marriage” as a child who is under the age of majority and still in the care of one or both parents, or a child who is the age of majority or over but is still being cared for by the parents by reason of illness, disability or other reason and is therefore unable to withdraw from their care or obtain the necessities of life on their own.

Who is a Parent? The question, although seemingly easy to answer is actually more complicated when it comes to the issue of child support.  Of course, a biological or adoptive parent is a “parent” in the conventional and obvious sense.  He/she would be obligated to pay child support for his/her child. However, even if you are not a biological or adoptive parent of a Child, it is possible that you may still be liable for child support upon the breakdown of a relationship.  If a party is found by a court to be in loco parentis (i.e. acting as if you are the parent of the Child), that person may be liable for child support.

Determining the Amount of Child Support Payable

The amount of child support that is payable is based on Federal, or Provincial  Child Support Guidelines. Factors that are taken into consideration include the number of children, the annual income of the payor, and the custody arrangement. Additional factors affecting the amount of child support payable, include whether:

• There are shared or split parenting arrangements

• The payor earns more than $150,000.00

• The payor is experiencing financial hardship

Child support may vary annually corresponding to variations in the payor’s income. Comprehensive information, tables for looking up child support payable, and a user friendly workbook are available at Federal Child Support Guidelines.

Income for the Purposes of Support

Income for the purpose of child support is based on line 150 of the individual’s income tax return and notice of assessment. If the payor’s income varies significantly from year to year their income may be averaged over three years to establish their income for the purpose of determining the amount of support payable.

What Changes Have Been Made to the Income Tax Act that Affect Child Support?

For court orders or agreements obtained on or after May 1, 1997, the parent receiving child support will not have to include the support in his or her taxable income. Similarly, the parent paying the support will no longer be able to deduct the support payments from his or her income. These tax changes also apply to any variations made to old orders or agreements made after May 1, 1997.

Reduction in Child Support

In some circumstances, the amount of child support can be decreased. For example, the amount of child support could be adjusted to prevent financial hardship for a parent. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support. The guideline amount of child support may be reduced when:

• There is a claim for a hardship variation by the payor because he/she suffers financial hardship, a high expenditure to exercise access to a child or is under an  obligation to support another person

• An alternate custody arrangement exists where the child spends equal time with each parent; this arrangement is referred to as shared custody.

• A split custody arrangement exists when one or more of the children live one parent and one or more of the other children live with the other parent.

Negotiating Your Own Agreement

If they agree, parents can negotiate their own agreement regarding child support. Parents generally have some flexibility about the amount that will be paid by the payor — as long as they can agree and the amount is fair. Many parents use child support guidelines to help them come to an agreement. If a judge is asked to decide, the judge must set child support amounts according to rules set out in child support guidelines. The federal government website provides instructions which contains clear instructions and work sheets that you will find useful when calculating how much child support a judge would likely order. Keep in mind, however, that figuring out child support amounts and setting up an agreement with the other parent can be complicated, and it would be best if you got advice from a professional such as a family law lawyer.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about child support issues following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

Spousal support is one of the most controversial topics in family law. One of the reasons for the controversy is that the law on spousal support is constantly evolving. In general, if one spouse earns more money than the other spouse, he/she may have to pay spousal support. Many people mistakenly refer to spousal support as "alimony" - which is a term used in the United States. In Canada, alimony is referred to as spousal support. You should be aware that there is a lot of misinformation available about spousal support. Many people getting divorced base their expectations on the experiences of their friends or business colleagues. In many cases the experiences of friends occurred years ago when the law on spousal support was different. A person who is ordered to pay support today will generally be ordered to pay a greater amount of support and for a longer period of time than would have been ordered even five years ago.

How Spousal Support is Determined

During a marriage it is common for spouses to share their incomes. Both contribute to and invest in their life together. Unfortunately, when they separate, it is difficult to know how to fairly divide their incomes. In some cases one spouse may have worked and paid all the bills. Or one spouse may have worked while the other went to school and trained to get a better job. In other cases, one spouse may have helped in the other’s business for little or no pay. If the parties had children, it is not uncommon for one spouse, typically the mother, to have given up their job so that he or she can stay home, manage the household, and care for the children. These contributions to a marriage all have value. Canadian courts have the authority, upon granting a divorce, to decide the issue of spousal support. The courts keep four objectives at the forefront when deciding spousal support issues. These are:

1. To recognize the economic advantages or disadvantages arising from the marriage or the divorce.
2. Once child support obligations have been established, to divide, between the spouses, any financial consequences arising from the care of any child.
3. To relieve any economic hardship a spouse might suffer as a result of the marriage breakdown and in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.
4. In so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. Each case is evaluated on it's own merits.

The law views spousal relationships as financial partnerships. When the partnership breaks down, the person with more income or assets may have to pay support to the other. At the same time, the law expects adults to look after their own needs to the best of their abilities. There is no set formula for the amount of spousal support an individual should pay, although there are a set of non binding Spousal Support Guidelines that judges and lawyers follow. Despite this, spousal support is still decided on a case-by-case basis, and there is a lot of variability in the results. There are a number of factors that are considered in determining the amount of spousal support payable, including:

• The length of time the spouses have lived together and the length of the marriage
• Their ages and health
• What was the role of each spouse in the marriage
• Each party's assets and ability to be self sufficient
• What was the role of each spouse in the marriage
• If there are children, with whom are they living

A judge will review all of the factors and how they each party, with particular emphasis on the effect of the marriage and the divorce on the parties’ financial circumstances, and then apportion the family income in a fair way between the spouses. While there till is a great deal of variability in spousal support awards, there are several general rules that can be found within the Divorce Act, and relevant case-law, (that is, decisions previously decided by judges), which set out some general guidelines in determining spousal support.

• Each case is evaluated on it's own merits. There is ample case law that suggests that life-long support is appropriate where a homemaker has devoted an entire life to raising children and, by the time of the divorce, cannot realistically be expected to retrain and compete for employment.

• A court can make a temporary spousal support order (called an "interim" order). After you have filed your application for divorce, your lawyer may bring a motion to the court asking for interim support. If interim support is granted, it will usually remain in force until you either settle the matter or the divorce trial is held.

• The provisions of the Divorce Act do not favour either men or women. Officially, spousal support is not based on the gender of individuals. Men and women alike have an equal entitlement to receive and obligation to pay spousal support, although generally more men than women pay spousal support. The court, however, will not take the sex of an individual into consideration in making its decision.

• The Divorce Act states that the Court must consider the "condition, means, needs and other circumstances of each spouse for whom support is sought including the length of time the spouses cohabited, the functions performed by the spouse during cohabitation and any order or agreement relating to support of the spouse" in deciding whether to grant spousal support. The word "condition" includes the age, health and "station in life." The words "the functions performed by the spouse during cohabitation" includes homemaking duties and the requirement to compensate such sacrifice in making a spousal support order.Spousal misconduct is not an issue in setting the entitlement to or amount of spousal support.

• Orders and agreements which provide for spousal support may be subject to a variation order by the court where a party experiences a significant, or material change in his or her financial circumstances. For example, spousal support payments are often reduced or suspended upon retirement of the payor or achievement of economic self sufficiency by the recipient. It should be noted that the party wishing to change the support order must prove that there has been a change in their circumstances,

• The court can order that spousal support will end at a certain date. This is used, at times, to encourage the support-recipient to become economically self-sufficient  Many spousal support payors face indefinite support orders based on the career sacrifice the support recipient hypothetically made in order to bear and rear their children. Such orders are still routinely granted.

• A spousal support order dies with the death of the support payor unless the order specifically says that the support is binding on the payor’s  estate.

• The effect of spouses getting back together again varies from province to province. For example, courts in Ontario and Saskatchewan have decided in some cases,  that reconciliation of the spouses automatically voids an exiting spousal support order. This means that if the reconciliation does not work out, a new support order is required. In B.C. and Manitoba courts have taken a different view, and say that only another court order can end the obligations of the original order which granted the support.

• A spousal support order may be transferred to the benefit of government social assistance agencies, to seek reimbursement of welfare money which has been paid to support a spouse while support payment were in default.

• Child support payments take precedence over spousal support. In fact, where child support exhausts the debtor's ability to pay, spousal support, even though otherwise due, can be suspended.

• Spousal support payments may be deducted from the taxable income of the payor.

Courts now routinely use support to maintain an equality of lifestyles between separated spouses. If there is a disparity in income, support will generally be ordered. If the couple still has dependent children, equalization of incomes, is common. While a courts must consider the terms of any spousal support agreement, they are not bound by it. It should be noted that a valid spousal support agreement that has been negotiated with both parties who had the benefit of legal counsel, will only very exceptionally be set aside. A marriage contract would be more susceptible to judicial intervention. As with all issues in a family law situation, legal advice should always be obtained to determine:

• Whether there is an entitlement to spousal support;

• The amount of support which might be payable;

• The duration such support might be payable;

• Whether there are sufficient changes in circumstances to justify a variation of an existing spousal support order or agreement.

Please note that the information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to go about your spousal support rights or obligations following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.

Deciding to file for divorce is a major life decision. You need to make sure that you are prepared in the best way possible. Here are 11 things that you can do to prepare yourself before filing for a divorce.

1. Save up some funds to which you will have easy access – funds which your spouse can’t get at. You will need such funds to compensate for the potential lack of your spouse’s income. If you are a two income family, the sudden drop from two incomes to one can be a real shock to your bank account. If you are currently being supported by your spouse, you may need the funds to carry you until such time as you can get voluntary support from your spouse or, alternatively, a court order for support. You’ll also need funds if you decide to hire a lawyer. You may need to move out of the matrimonial home, in which case you will need a deposit for your first and last month's rent, or funds to purchase a new home or new furniture.

2. Do some research and hire a good family law lawyer. A divorce is not granted overnight. If you and your spouse are fighting a great deal, the divorce process – from start to finish – can take two years or more. You’ll be spending a lot of time communicating with your lawyer. Do your research and hire a good family law lawyer - a lawyer who you are confident understands you and will represent your interests. You hire experts in all other areas of your life. When you are ill – you see a physician. When you have a toothache – you see a dentist. If your car breaks down  - you take it to an auto mechanic. The same should be true of you are considering getting a divorce. You must hire a trusted counsel to guide you through this difficult time and to protect your interests. An experienced and skilled family law lawyer will help you understand the process,  and guide you as painlessly as possible through the entire divorce process.

3. Take stock of your joint finances. Your spouse might be planning to take all the money you have in any joint lines of credit or joint bank accounts, or cancel them, leaving you with access to little or no cash. This can be a real problem for you because even if you have a lot of assets on paper, they may not be in a form where which you can be easily accessed. You have a number of options when dealing with a joint line of credit or joint bank account. The first option is simply to do nothing. The second option is to take half the money in the line of credit or bank account and put it in a separate bank account which you hold in your name alone. The third option is to take most or all the money available from the joint line of credit or joint bank account and deposit  that in a separate bank account which is held in your name only.

The option you choose should depend on your family situation, on the status of your relationship with your spouse and on their personality. For instance, if you are a stay-at-home mother, with no other sources of income, it may make a lot of sense for you to take all the money in the account to provide you with a reserve fund of accessible cash. However, taking all, or a large portion of the money available in the joint line of credit or joint bank account may not be to your advantage, as it may make you look bad in the eyes of a judge, and appearances In these circumstances, may be important. Taking only half the funds available in the joint line of credit or in the joint bank account may make the most sense. Regardless of what you choose to do, it is important that you consider the issue carefully as well as the implications of all your actions.

4. Evaluate the status of joint credit cards, lines of credit and other liabilities. Is there a risk that your spouse will go on a spending spree? If they do, and they push the line of credit or credit card to its limit, you could be liable for part or all of the money that he or she spends. The best way to protect yourself, is to cancel all joint credit cards, lines of credit and other joint liabilities.

5. Keep you wits about you and deal with the practical issues. While it is true that this is a time of great emotional upset to you, it is important that you keep your wits about you and deal with the practical issues surrounding the dissolution of your marriage. You need to gather and organize your family’s financial records and put them in a safe place. This includes making an inventory of valuables such as the contents of safety deposit boxe; jewellery, and artwork. It is possible that your spouse may be hiding assets. If at all possible, review all mail coming into your house and make a list of the sender and return addresses, especially if the mail is from a financial institution.

6. Change your designated beneficiaries. You may not be aware of this, but during the divorce process, you are still technically married to your spouse. As such, if you do not have a will, your spouse will inherit a substantial portion of your estate should you pass away. If you do have a will, it probably states that you are leaving your estate to your spouse. Speak to your lawyer about writing a will or changing your current will by leaving your estate to alternate beneficiaries. You should also consider changing the beneficiary of your life insurance policy, pension and RRSPs. If you were to pass away without doing this, your spouse might inherit all of these monies, which is likely contrary to your current wishes.

7. Consider severing any property held in joint tenancy with your spouse. If you do not and you pass away, ownership of that property, typically the matrimonial home, will pass to your spouse alone and this may be contrary to your wishes. However if your spouse passes away before you, it may be advantageous for you not to sever.

8. Keep a journal. Having notes which you made at the time an incident with your spouse occurred will help support the arguments you may want to make in your case is critical. It is important that keep a journal of the important events relating to the breakup of your marriage, particularly if these have had an impact on your children or if you are living in an abusive situation. You should know that in considering issues regarding the children, the court's guiding principle is always what is in the child's best interests. Thus, when making journal entries about your children, it is important to you do so from the child's point of view. For example, if your spouse is late in returning the children from an access visit, rather than note what a bad parent your spouse is, you should note the effect that the lateness had on the children, for example, did it mean that they got to bed late and could not concentrate the next day at school because they were tired?

9. Anticipate your post-divorce financial condition. This means you need to plan for your future finances. Whether you worked during you or marriage or not, the fact is that when a couple divorces, everyone becomes poorer. You’re moving from either a two income household to a one income household, or you will be trying to support two households on one income. In either case, the financial pressures will be considerable. If you are not working you might be best advised to go back to school or seek employment. If you are not ill or disabled, and if your children are school aged, you should be able to demonstrate that you are making some effort and taking steps to become self sufficient.

10. Take good care of yourself. The dissolution of your marriage is one of the most stressful situations that you will ever go through. You must make sure that you are in as good health as possible — both emotionally and physically — before you start the divorce process. Establish and maintain a good support system. By having the support of friends, family or a counsellor, you will be better equipped to get through this difficult process.  You might consider speaking with your physician or a therapist to deal with your anger and emotional upset. Try to get some exercise, even if its only a good walk every day. Eat properly. This can be a lengthy process, you will need your emotional and physical stamina both for yourself and to be able to continue to properly care for your children.

11. Learn the basics of Canadian divorce law. Knowledge is power. The better you understand the legal process and divorce laws, the more reasonable your expectations will be and the less surprised you will be when you encounter inevitable delays and obstacles.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about your rights when getting a divorce and on how to negotiate the divorce process following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner on this page. Do not sign a separation agreement without independent legal advice.

AN OVERVIEW OF CHILD CUSTODY ISSUES

What is Custody?

Custody is an issue that frequently comes up in the divorce process. Custody determines who has the final powers of legal guardianship for the child, including powers to make decisions about the child’s education, medical care, religious education and overall upbringing. Custody does not have anything to do with how often a parents sees a child or how much time they spend with the child. These issues are covered by access.

Do You Need a Court Order for Custody?

You do not necessarily need to have an order giving you custody of the children. If you and your spouse agree, you can make a joint decision regarding custody and have that written up in a separation agreement. You should understand, however, that whatever you have agreed to in your separation agreement is not binding on the Courts.  A Court could overturn such an agreement if there were a valid reason to do so. The Court may overturn an agreement that is deemed as not being in the best interests of the child.

How to Get a Order for Custody?

To get a Court Order for custody you must file an Application asking the court to give you such an Order. This request for custody can be included in your Divorce Application as part of your divorce process,  or be applied for on its own – probably in conjunction with a request for child support. You should know that even if you do get an Order for Custody, that Order can always be changed if a party can show that there has been a “change in circumstances”. Ultimately, the Courts are always primarily interested in ensuring that all decisions are in the best interests of the children.

Who Can Apply for Custody of the Children?

Although only parents usually ask for custody of a child, others (such as grandparents or relatives) can, with the special permission of the Court, intervene and ask for custody or access. Natural parents would normally have to abandon a child or be guilty of serious misconduct for them to be denied custody in favour of a grandparent or relative. 

What Is Joint Custody?

Courts are increasingly fond of “joint custody” arrangements where the two divorcing spouses share in the major decisions concerning the child. A Court might order joint custody even though one of the spouses provides most, or even all, of the day-to-day care for the child. Courts will, however, shy away from joint custody where there is a history of disagreement over child-rearing issues (such as religious grounds, extracurricular activities, level of discipline etc.).

Factors Considered by Judges in Determining Custody of Children:

Deciding who should have custody of the children after a marriage is over is not easy. Typically, in a divorce process, both parents want custody of the children. Courts will bend over backwards to ensure that an existing, positive relationship between a child and a parent is preserved throughout and after the divorce. If divorcing parents can not agree on who will take care of the children, divorce law sets out some basic principles that a judge must use when making decisions about children. These principles take into consideration:

• The best interests of the children which always come first.

• The amount of contact the chidren have with both parents, with the goal being to maximize the amount of time.

• The past behaviour of a parent, but only insofar as that behaviour reflects on the person’s ability to act as a parent.

• The parent-child relationship with each spouse and the extent of the child’s bonding with each parent.

• Each spouse’s parenting abilities.

• The mental, physical and emotional health of each parent.

• The work schedule and demands of each parent. For example, Courts will generally look more favourably in giving custody to a parent who can give a child regular daily care as opposed to leaving the child with a stranger for extended periods of time (e.g. Day care)

• Support systems each individual has available including, help and involvement from grandparents, other close relatives and friends.

• Sibling issues. Generally, the courts prefer that brothers and sisters should remain together. Under some circumstances it may be necessary to consider separating them.

• The child’s wishes. There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures. An older teenager’s wishes will often be decisive.

Other Things You Should Know About Custody

• Over the past few years, family law has been moving away from the traditional “sole custody” arrangement in which one parent makes all of the decisions for the child and provides all of the care-giving. “Joint” and “Shared Child Custody” are becoming increasingly popular and workable for many families.More recently, there has also been a movement away from going to court to resolve child custody disputes. Alternative Dispute Resolution (ADR) is used by many couples involved in the divorce process to develop Parenting Plans that spell out the roles of each parent in the child’s life. Family Courts themselves are encouraging parents to negotiate a Parenting Plan rather than litigating child custody and access.

• Officially, there is no law or policy which states that very young children should reside with their mothers. However there is no doubt that the general trend is to follow to the “tender years doctrine”. The “tender years doctrine” believes that the children should be placed in the care of, or should reside with, the parent who is more nurturing. In the vast majority of cases, this is the mother.

• The custodial parent’s wish to move to another city, province or country is always problematic and there is no guarantee that the Court will always allow such a move. It may and it may not. While the court certainly cannot prevent a parent from moving, it does have the power to order that the child not be removed from the jurisdiction.

• You should never consider removing your children to another city, province or country without the other parent's consent.  Orders made under the Divorce Act, are binding across Canada and international treaties exist to prevent child abduction. You should also know that you are committing a Criminal Code offence if you abduct a child contrary to a custody order.

Please note that this information is general in nature and not intended to be a substitute for legal advice. If you are concerned about how to get custody of your children following the breakdown your marriage or common law relationship, please contact a lawyer. You can get free information about how to select and retain a lawyer by getting a copy of the FREE REPORT offered at the top right-hand corner of this page. Do not sign a separation agreement without independent legal advice.