No. Being separated means you cannot remarry and you may still share certain benefits of marriage such as health insurance and tax benefits. Only a divorce can legally terminate the marriage and enable you to be free to remarry.
A signed separation agreement can be changed in the future, especially if both parties consent to the change. It would then require the signature of both parties involved in an amending agreement.
If the parties do not agree to the proposed change, one party can go to Court and ask the Court to vary the terms of the separation agreement if there was a material change in circumstances since the agreement was signed.
Yes, you can draft a separation agreement yourself. However, we would highly advise against that.
Often people draft documents themselves in handwriting or using software online. While well meaning, an improperly drafted or incomplete agreement can cause more problems in the future than not having an agreement at all. In our experience it is always best to get the assistance of a lawyer to construct an agreement that meets your family’s needs. We are confident that we can help you draft an agreement that will help you and your family move forward.
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- Negotiation: Both parties directly or their lawyers discuss and negotiate the terms of the separation agreement. This can also be done with the assistance of mediators or collaborative family law professionals.
- Drafting the Agreement: Once the terms are agreed upon, a written separation agreement is drafted. This document should resolve all issues stemming from the parties’ separation.
- Independent Legal Advice (ILA): It is highly recommended that both parties seek independent legal advice before signing the agreement. This ensures that each party fully understands their rights and obligations under the agreement and that the agreement is as strong as possible.
- Review and Amendments: After receiving legal advice, the parties may need to make amendments to the agreement based on their lawyers’ feedback. This step may involve further negotiation.
- Signing the Agreement: Once both parties are satisfied with the terms and have received independent legal advice, they sign the agreement.The process towards finalizing a separation agreement can be a winding path. Here at Sudano Law PC, we will guide you through the process and help you and your family move forward. The process is often as follows:
- Filing with the Court (Optional): While not mandatory, parties may choose to file the separation agreement with the court to be turned into a court order or enforced as a court order.
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- In Ontario, family loans can play a significant role in the equalization process during a divorce. Sometimes, the accuracy and/or existence of family loans is contested since they can have a significant factor in calculation a spouse’s net family property.Family loans can be recognized as debts and if found to be valid are deducted from a spouse’s net family property. This means that the loan will reduce their net family property.
The spouse claiming the loan must provide evidence that the loan exists. This can include loan agreements, repayment schedules, and any other documentation that proves the loan is legitimate and not a gift.
Courts will look at the circumstances surrounding the loan including the intention of the parties involved in the loan. If the loan was intended to be repaid, it will be considered a debt. If it was intended as a gift, it will not be deducted from the net family property.
- In Ontario, family loans can play a significant role in the equalization process during a divorce. Sometimes, the accuracy and/or existence of family loans is contested since they can have a significant factor in calculation a spouse’s net family property.Family loans can be recognized as debts and if found to be valid are deducted from a spouse’s net family property. This means that the loan will reduce their net family property.
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- Certain assets can be excluded from equalization in Ontario under the Family Law Act. The following types of property are generally excluded:
- Gifts and Inheritances: Property received as a gift or inheritance from a third party after the date of marriage, provided it has not been co-mingled with other family property.
- Damages for Personal Injury: Compensation received for personal injuries, unless it has been used to acquire or improve family property.
- Proceeds of Life Insurance: Proceeds from a life insurance policy, unless they have been used to acquire or improve family property.
- Property Excluded by a Domestic Contract: Property that spouses have agreed to exclude in a valid domestic contract (e.g., a prenuptial agreement).
It is paramount to get the advice of a trained professional when it comes to property division as this area of the law is extremely complex and worth the value of legal advice.
- Certain assets can be excluded from equalization in Ontario under the Family Law Act. The following types of property are generally excluded:
In Ontario, equalization is a process where spouses share the value of their property acquired during the marriage when they separate or divorce. The Family Law Act governs the equalization and here is a general overview of how it works:
- Determine Each Spouse’s Net Family Property (NFP)
- This is done by determining the value of all assets owned on the date of separation (aka the valuation date) and subtracting any debts and liabilities.
- From this amount, each spouse subtracts the value of the assets they brought into the marriage (after deducting any debts and liabilities at that time), except for the matrimonial home, which is treated differently.
- Calculate the Equalization Payment
- The spouse with the higher NFP pays the other spouse half of the difference between their NFPs. This payment is known as the equalization payment.
Key Considerations
- Matrimonial Home: The value of the matrimonial home is treated differently. If it was owned by one spouse before the marriage, its value on the date of marriage is not deducted from that spouse’s NFP.
- Exclusions: Certain properties are excluded from NFP calculations, such as inheritances or gifts received during the marriage, provided they were not used towards the matrimonial home.
- Debts and Liabilities: Both assets and debts are considered in the calculation of NFP.
Example
- Spouse A:
- Assets on separation date: $500,000
- Debts on separation date: $100,000
- Assets on marriage date: $200,000
- Debts on marriage date: $50,000
- NFP: ($500,000 – $100,000) – ($200,000 – $50,000) = $250,000
- Spouse B:
- Assets on separation date: $300,000
- Debts on separation date: $50,000
- Assets on marriage date: $100,000
- Debts on marriage date: $20,000
- NFP: ($300,000 – $50,000) – ($100,000 – $20,000) = $170,000
- Equalization Payment:
- Difference in NFP: $250,000 – $170,000 = $80,000
- Equalization Payment: $80,000 / 2 = $40,000
- Spouse A pays Spouse B $40,000.
The calculation of child support for an adult child who is unable to withdraw from their parent’s care due to a disability in Ontario is guided by the Child Support Guidelines (“CSG”), the Divorce Act, and the Family Law Act.
Under the CSG, the basic amount of child support is determined based on the payor’s income and the number of children. However, when it comes to adult disabled children, the court has the discretion to deviate from the table amounts in the CSG if it finds that the table amount is inappropriate considering the condition, means, needs, and other circumstances of the child and the financial ability of each parent to contribute to the support of the child.
The court will consider the following factors when determining child support for adult disabled children:
- The nature and extent of the child’s disability.
- The child’s ability to earn income, including the availability of employment opportunities and the child’s actual income.
- The child’s reasonable needs and expenses, including medical and care expenses.
- The parents’ respective financial circumstances, including their incomes, assets, and debts.
- The parents’ respective abilities to contribute to the support of the child.
- Any government benefits or assistance the child is eligible for or is receiving.
It’s important to note that the determination of child support for adult disabled children is a fact-driven exercise and allows for the exercise of considerable judicial discretion.
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Yes, child support agreements can be changed in Ontario. This is typically done when there is a significant change in circumstances that affects the amount of child support that should be paid.
For example, if the payor’s income significantly increases or decreases, or if the child’s living arrangements or needs change, the child support agreement may need to be revised.
The process for changing a child support agreement depends on whether the agreement is part of a court order or a private agreement:
- Court Order:If the child support agreement is part of a court order, either party can apply to the court to vary (change) the order. This is governed by section 37 of the Family Law Act and section 17 of the Divorce Act all with reference to Section 14 of the Child Support Guidelines.
- Private Agreement:If the child support agreement is a private agreement (not part of a court order), the parties can agree to change the agreement. If the parties cannot agree, one party can apply to the court to have the agreement changed. The court will then decide whether to change the agreement based on the best interests of the child.
It’s important to note that the responsibility to request a review or modification of child support typically falls on the parties involved. The court or a child support service does not automatically review child support orders or agreements on an annual basis.
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Shared custody, where each parent has the child for at least 40% of the time over the course of a year, can affect the amount of child support in Ontario. Under Section 9 of the Child Support Guidelines, the court has the discretion to deviate from the table amounts of child support in shared custody situations.
The court will consider the following factors:
- The amounts set out in the applicable tables for each of the parents or spouses;
- The increased costs of shared parenting time arrangements; and
- The conditions, means, needs and other circumstances of each parent or spouse and of any child for whom support is sought.
This means the court will look at the actual spending patterns of the parents in relation to the child, the increased costs associated with shared custody, and the financial circumstances of each parent.
In shared custody situations, the court often uses a “set-off” method to calculate child support. This involves calculating what each parent would owe the other under the Guidelines if they were the non-custodial parent, and then subtracting the smaller amount from the larger. This results in one parent paying the other the difference. However, the court has the discretion to order a different amount if it finds that the set-off amount would be inappropriate given the circumstances.
The goal of child support is to ensure that the child’s standard of living is similar in both households, and that the financial burden of raising the child is shared fairly and equally between the parents.
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If child support is not paid in Ontario, there are several enforcement measures that can be taken. The Family Responsibility Office (FRO) is the government agency responsible for collecting, distributing and enforcing child and spousal support orders.
When a support order is made, it is automatically filed with the FRO, unless both parties have agreed in writing to withdraw from the FRO. Once a support order or agreement is filed with the FRO, the FRO processes the payments to ensure that the person who is supposed to pay support does so.
If payments are not made, the FRO can take enforcement action. This can include:
- Garnishing wages or other income: The FRO can order the payor’s employer to deduct the support amount from the payor’s wages or other income (such as pensions or employment insurance).
- Garnishing bank accounts: The FRO can take money from the payor’s bank account to cover the support payments.
- Filing a writ of seizure and sale: The FRO can place a lien on the payor’s personal property or real estate.
- Reporting to credit bureaus: If a payor is in arrears, the FRO can report them to the credit bureaus, which could make it difficult for the payor to get a loan.
- Suspending passports or driver’s licenses: If a payor is in arrears, the FRO can ask the court to suspend their passport or driver’s license.
- Incarceration: As a last resort, the FRO can ask the court to send the payor to jail for up to 180 days.
It’s important to note that the FRO cannot change the amount of support that is owed. Only the court can do that. If a payor is having trouble making their support payments, they should go to court as soon as possible to ask for a change.
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In Ontario, the calculation of child support for self-employed individuals is guided by the Child Support Guidelines (CSG). The CSG provides a framework for determining child support payments based on the income of the parent who is paying support (the “payor”) and the number of children to be supported.
For self-employed individuals, determining income for support purposes can be more complex. According to the CSG, certain deductions from self-employment income are added back to the earner’s income for the purpose of calculating child support. This is outlined in Schedule III of the CSG.
Here are the key deductions from self-employment income that are added back:
- Salaries, benefits, wages, or management fees, or other payments paid to or on behalf of persons with whom the spouse does not deal at arm’s length(section 9): These amounts are added back unless the spouse establishes that the payments were necessary to earn the self-employment income and were reasonable in the circumstances.
- Deduction for an allowable capital cost allowance with respect to real property(section 11): This amount is added back to the income.
- Amounts included in income that are required by the partnership or sole proprietorship for purposes of capitalization(section 12): These amounts are deducted from the self-employment income.
- Employee benefits from options to purchase shares of a Canadian-controlled private corporation(section 13): The difference between the value of the shares at the time the options are exercised and the amount paid by the spouse for the shares, and any amount paid by the spouse to acquire the options to purchase the shares, is added to the income for the year in which the options are exercised.
In addition to the add-backs set out above, other common add-backs are: meals and entertainment, business use of the home, phone and car expense (or a portion thereof), travel and any other “soft” expense written off for tax purposes that was not necessary for the operation of the business.
The court has discretion in determining what is a reasonable expense and what should be added back to the income for support purposes. The court will consider the nature of the expense, the necessity of the expense for the generation of income, and whether the amount of the expense is reasonable.
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The Child Support Guidelines provide a framework for determining the amount of child support that is payable by one parent to the other.
Generally speaking, the parent with less than 40% of parenting time is obligated to pay the parent who has primary residence of the child a monthly child support amount for the benefit of their child(ren). In a shared parenting arrangement, child support may be paid by both parents to each other (as a matter of a “set-off” ).
The Guidelines are based on the principle that both parents have a legal duty to support their children, and that the amount of support should be based on the income of the parent(s) who is/are paying support (the “payor”) and the number of children to be supported.
The Guidelines provide tables, in accordance with which, based on a parent’s gross income, one can determine the amount of support to be paid per month. The tables take a percentage of the payor parent’s gross income and provide an accurate amount of support to be paid while considering the number of children.
Two Acts govern child support in Ontario:
- For parents who are married and are divorcing – the Divorce Act; and,
- For unmarried parents who are separating – the Family Law Act.
The federal Child Support Guidelines are regulations appended to the Divorce Act, and they govern all child support. The provincial Child Support Guidelines are appended to the Family Law Act and they mirror the Federal Guidelines. This results in the amount of child support payable being same regardless of which Guidelines one uses to calculate the monthly child support amount.
Here’s a step-by-step breakdown of how the Child Support Guidelines work:
- Determine the Payor’s Income: The first step in calculating child support under the Guidelines is to determine the payor’s annual income. This is usually based on the payor’s line 15000 income on their most recent income tax return. However, the court has discretion to use a different income if it finds that the income tax return does not accurately reflect the payor’s true income. If a support payor is self-employed or owns a business, determining that individuals income is far more complicated that using a payor’s line 15000 income.
- Refer to the Child Support Table: Once the payor’s income has been determined, the next step is to refer to the Child Support Table for the province where the payor resides. The Table provides the basic monthly amount of child support for different income levels taking number of children in consideration.
- Adjust for High Income: If the payor’s income exceeds $150,000, the court has discretion to adjust the amount of child support. The court may either apply the Table amount for the first $150,000 of income and an amount that it considers appropriate for the balance of the income, or it may award a different amount that it considers appropriate.
- Consider Special or Extraordinary Expenses: In addition to the basic monthly amount of child support, the court may also order the payor to contribute to special or extraordinary expenses. These are expenses that are necessary because of the child’s best interests and are either extraordinary or beyond the means of the primary parent, or would cause the primary parent undue hardship. Examples of special or extraordinary expenses include childcare expenses, medical expenses, and expenses for post-secondary education.
- Consider the Condition, Means, Needs and Other Circumstances of the Children and the Financial Ability of Each Parent: The court has the discretion to deviate from the Guidelines if it finds that the Table amount would be inequitable given the condition, means, needs and other circumstances of the children and the financial ability of each parent to contribute to the support of the children.
It’s important to note that the Child Support Guidelines are the law, and courts are required to order child support amounts that are at least as much as the guideline amounts, unless special provisions apply. Both the Divorce Act (s. 15.1(3)) and the Family Law Act (s. 33(11)) specify that all orders for child support must be made in accordance with the applicable Guidelines.
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A child support lawyer specializes in matters related to child support, which is a legal obligation for financial support of a child. Here are some of the key responsibilities of a child support lawyer:
- Advising Clients: A child support lawyer provides legal advice to clients about their rights and obligations regarding child support. This includes explaining how child support is calculated according to the Child Support Guidelines, and how factors such as income, the number of children, and the parenting arrangement can affect the amount of child support.
- Negotiating Agreements: A child support lawyer can help negotiate child support agreements between parents. This includes determining the amount of child support, the frequency of payments, and how special or extraordinary expenses will be shared.
- Drafting Legal Documents: A child support lawyer drafts legal documents related to child support, such as separation agreements, court applications, and consent orders.
- Representing Clients in Court: If parents cannot agree on child support, a child support lawyer can represent their client in court to resolve the dispute. This includes presenting evidence, arguing the case, and cross-examining witnesses.
- Enforcing Child Support Orders: If a parent fails to pay child support as ordered, a child support lawyer can assist with enforcing the order. This can involve filing a motion for contempt, garnishing wages, or requesting a license suspension.
- Modifying Child Support Orders: If there has been a material change in circumstances, such as a significant change in income or a change in the child’s needs, a child support lawyer can assist with modifying the child support order.
- Navigating Complex Issues: A child support lawyer can help navigate complex issues related to child support, such as determining income for self-employed parents, dealing with retroactive child support, or addressing child support for adult children with disabilities.
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The potential outcomes of a relocation dispute in Ontario, can vary depending on the specific circumstances of the case. However, generally, the outcomes can be categorized as follows:
- Agreement Between Parties: The parties may come to an agreement about the relocation. This could involve the non-relocating parent agreeing to the move, possibly with changes to the parenting plan to maintain their relationship with the child. This agreement should ideally be formalized in a written document or court order.
- Court Order Permitting Relocation: If the parties cannot agree and the matter goes to court, the court may decide to allow the relocation. The court will consider the best interests of the child, the impact of the relocation on the child, the amount of time spent with the child by each parent, any past order, arbitral award, or agreement regarding parenting including any restriction on the relocation, and the reasonableness of the proposal. The court is not allowed to consider whether the parent who intends to relocate would relocate without the child.
- Court Order Denying Relocation: Alternatively, the court may decide not to allow the relocation. This could be because the court finds that the move would not be in the best interests of the child, or for other reasons based on the specific circumstances of the case.
- Modification of Parenting Plan: Whether the court allows the relocation or not, it may also order a modification of the parenting plan. This could involve changes to the schedule of parenting time, decision-making responsibilities, or other aspects of the parenting plan.
Remember, the court’s primary concern in these cases is the best interests of the child. The court will always aim to make a decision that supports the child’s wellbeing and maintains their relationships with both parents as much as possible.
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Yes, a child relocation order can be modified in Ontario, Canada. This is typically done through a process known as a “Motion to Change”. A Motion to Change is a formal request to the court to change certain terms of an existing order or agreement.
The party seeking the change must demonstrate that there has been a material change in circumstances since the original order or agreement was made. A material change in circumstances means that there has been a significant change that, if known at the time, would likely have resulted in different terms in the order or agreement.
In the context of child relocation, a material change in circumstances could include things like a change in the child’s needs or circumstances, a change in the relocating parent’s circumstances, or evidence that the original order or agreement is no longer in the best interests of the child.
The court will always consider the best interests of the child when deciding whether to grant a Motion to Change. This includes considering the child’s views and preferences, if they can reasonably be ascertained, the child’s physical, emotional and psychological safety, security and well-being, and the willingness of each person applying for custody of the child to facilitate contact with the other parent.
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In Ontario, when a court is deciding on child relocation issues, it focuses on what is in the best interests of the child. This principle is outlined in both the Divorce Act and the Children’s Law Reform Act.
The court will consider a variety of factors to determine what is in the best interests of the child, including:
- The child’s physical, emotional, and psychological safety, security, and well-being
- The child’s needs, given their age and stage of development
- The nature and strength of the child’s relationship with each parent
- Each parent’s willingness to support the development and maintenance of the child’s relationship with the other parent
- The history of care of the child
- The child’s views and preferences, giving due weight to the child’s age and maturity
- The child’s cultural, linguistic, religious and spiritual upbringing and heritage
- Any plans for the child’s care
- The ability and willingness of each parent to care for and meet the needs of the child
- The ability and willingness of each parent to communicate and co-operate on matters affecting the child
- Any family violence and its impact on the child
- Any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security, and well-being of the child
In the context of relocation, the court will also consider the impact of the relocation on the child, the amount of time spent with the child by each parent, any past order, arbitral award, or agreement regarding parenting including any restriction on the relocation, and the reasonableness of the proposal. The court is not allowed to consider whether the parent who intends to relocate would relocate without the child.
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You should consider consulting with a child relocation lawyer in the following situations:
- Before giving notice of relocation:If you are a parent planning to relocate with your child, it’s important to consult with a lawyer before giving notice to the other parent. A lawyer can help you understand your rights and obligations under the Divorce Act and the Children’s Law Reform Act, and can guide you through the process of giving proper notice.
- Upon receiving a notice of relocation:If you are a parent who has received a notice of relocation from the other parent, you should consult with a lawyer as soon as possible. You have a limited time to object to the relocation (30 days under the Divorce Act), and a lawyer can help you understand your options and guide you through the process of objecting, if necessary.
- When considering a court application:If you need to apply to the court for permission to relocate with your child, or to object to a proposed relocation, a lawyer can help you prepare your application and represent you in court.
- When negotiating or revising a parenting plan:If you are negotiating a parenting plan or revising an existing plan in light of a proposed relocation, a lawyer can help you understand how the relocation may impact the plan and can assist you in negotiating changes.
Remember, every situation is unique, and the above are general guidelines. It’s always a good idea to consult with a lawyer whenever you have legal questions or concerns.
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A relocation lawyer is a legal professional who specializes in cases where a parent or guardian wishes to move with a child to a different geographical location, which could potentially disrupt the existing custody or visitation arrangements. This is often a complex area of family law due to the potential impact on the child and the rights of the other parent or guardian.
In Ontario, Canada, the relocation of a child is governed by the Divorce Act for married or previously married couples, and the Children’s Law Reform Act for unmarried couples who have a child together. As of March 1, 2021, a parent or person with parenting time or decision-making responsibility who wishes to relocate either themselves or the child must give 60 days’ notice to the other parent or person with parenting time or decision-making responsibility.
A relocation lawyer can provide advice on the legal requirements for relocation, assist in drafting the required notice, represent a parent in court if the relocation is contested, and advise on the potential impacts of relocation on existing custody or visitation arrangements.
If you are considering relocation or defending against a claim for relocation, please do not hesitate to contact our office so you can be as proactive as possible.
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I would recommend doing a bit of research online to help you organize your thoughts. If you have important documents, such as pleadings, orders, agreements or financial documents, definitely have them on hand. But most importantly, you should consider what is most important to you. During our initial telephone call our team will ask you questions to help you focus on your core goals that will help you make better decisions in the days and weeks to come.
Our professional obligation is to lay out all of your options for you and advise you what we think you should do. Ultimately, you decide what option works best for you and your family. Feel free to disagree with us as we here to empower you and to look out for your best interests. Having said that, feel free to ask questions about the law or the process at any time. If we disagree and our team keeps encouraging you to take a certain step, our intention is not to get on your nerves. We have a professional duty to look out for you and explain why one option may be better than the other. Our job is to be objective, explain your options and make sure that when you are making a decision it is one not based out of emotion, as that is when people make some of the worst decisions, but based on all of the information available that is good for you and your family.
The duration of the divorce process in Canada can vary significantly depending on several factors, including whether there are contested issues and their complexity. To get a more accurate estimate of how long your divorce process will take in Canada, it’s advisable to consult with us so we can provide you with guidance based on your specific circumstances. We can help you navigate the process efficiently and ensure that your rights and interests are protected throughout.
In family law cases you can only control the steps that you take. You cannot control what the other party does or their emotions based on the steps you take. Having said that, it is important to view the value you are getting for your legal fees. The value starts with peace of mind knowing you have support during this process while taking proactive steps to resolve things as quickly as possible. This is a difficult journey. With the team at Sudano Law PC, we will be with you every step of the way to help you move forward.