The information and resources below provide general information to assist you to prepare for the discussions in mediation and should not be relied upon for legal advice. If you need help finding a lawyer to support you in mediation and provide you with legal advice, give us a call and we can provide you with a list of lawyers who support clients who want to use mediation.
Information and Resources
Child and Spousal Support
Child support in Ontario is a legal obligation that ensures children receive financial support from both parents, even if they are separated or divorced. Here is a simple explanation:
Responsibility: Both parents are responsible for financially supporting their children, regardless of their marital status or living arrangements. Child support is meant to cover the child's basic needs, such as food, clothing, shelter, education, and healthcare.
Child Support Guidelines: In Ontario, child support is determined using the Child Support Guidelines, which provide a formula based on the paying parent's income and the number of children. The guidelines help establish a fair and consistent amount of child support that should be paid. You can access the Guideline calculator here.
Income Consideration: The income of both parents is taken into account when calculating child support. This includes employment income, self-employment earnings, pensions, and other sources of income. The formula considers the paying parent's ability to contribute to the child's support.
Shared Parenting: In situations where the child spends a significant amount of time with both parents, the guidelines take into account the shared parenting arrangement. The amount of child support may be adjusted accordingly to reflect the shared responsibilities of both parents.
Special and Extraordinary Expenses: In addition to basic child support, parents may be responsible for sharing special or extraordinary expenses. These can include expenses related to child care, health or medical needs, education, extracurricular activities, and other reasonable expenses that benefit the child.
Enforcement: Child support payments are usually made on a regular basis, such as monthly. The paying parent is legally obligated to make the payments. If there are issues with payment, enforcement measures can be taken, including wage garnishment, income tax refunds interception, or legal action to ensure compliance.
It's important to note that child support is separate from parenting time or custody arrangements. It focuses solely on the financial support of the child. If parents have any concerns or disputes regarding child support, seeking legal advice or consulting a family lawyer can provide guidance and help resolve the matter in the best interest of the child.
Spousal support is somewhat different depending on whether you were married, where you can for sure ask for it, or whether you were not married, where there are only certain circumstances where you can ask for it. If unmarried, you would have had to have a child together and be in a relationship of “some permanence” or have lived together for a minimum of 3 years. Spousal support is where one spouse provides financial assistance to the other spouse after a separation or divorce. It is intended to help the financially disadvantaged spouse maintain a reasonable standard of living and transition into their new life.
Spousal support is determined based on various factors, including the length of the marriage or relationship, each spouse's income and earning potential, the roles and responsibilities during the marriage, and the needs and means of each spouse.
The purpose of spousal support is to address any economic imbalances that may exist between spouses. For example, if one spouse earns significantly more than the other or if one spouse sacrificed their career or education opportunities for the benefit of the family, they may be entitled to spousal support.
The amount and duration of spousal support can vary from case to case. In Ontario, there are Spousal Support Advisory Guidelines that provide a framework for determining the appropriate amount and duration of support. These guidelines are not mandatory but a very important consideration. They also provide ranges, so they cannot be used to “determine” support without conversation and consideration of the factors listed above.
Spousal support can be paid in different ways, such as a lump sum or periodic monthly payments, depending on what the court decides or the parties agree upon.
It's important to note that spousal support is separate from child support, which is financial support provided for the children of the separating or divorcing couple. Both spousal support and child support aim to ensure that both spouses and their children can maintain a reasonable standard of living after the separation or divorce.
Parenting
Parenting laws in Ontario govern how parents make decisions and share responsibilities for their children after a separation or divorce. These laws try to protect the best interests of the child and ensure that both parents have meaningful involvement in their children's lives.
In Ontario, the law recognizes that both parents have rights and responsibilities towards their children, regardless of their marital status or whether they live together. The key principle is the well-being and best interests of the child are the primary consideration, and the focus should be on what the children need to thrive, and how the parents can provide those things.
When parents separate or divorce, they are encouraged to create a parenting plan or agreement that outlines how they will share parenting responsibilities and make decisions for their children. This plan should cover important aspects such as where the child will live, the schedule for parenting time or visitation, and how decisions about the child's education, health, and upbringing will be made.
If parents cannot agree on these matters, they may need to seek help from a mediator to work out a good plan. If they can’t, they may end up in court. The court will consider several factors, such as the child's age, their relationship with each parent, their wishes (if they are old enough to express them), and the ability of each parent to care for the child.
The issues that need to be worked out include who will have primary decision-making authority, or whether both will, and how the parents will share time with the child. There are a lot of other considerations such as how new partners will be introduced, how holidays will be shared and how day to day decisions like screen time, medical care and daycare will be handled.
It's important to note that parenting laws in Ontario encourage parents to maintain a positive and cooperative relationship for the well-being of their children. Both parents are encouraged to actively participate in their children's lives, promote the child's relationship with the other parent, and make decisions in the child's best interests.
There are two really helpful guides that you can use as a resource to think about topics you would like to bring up in mediation:
You can read about how children experience separation and some ideas about what can be put in parenting plans in the AFCCO Parenting Guide, found here.
The Federal Government Department of Justice has a parenting tool. You can either scroll down to look at the types of paragraphs that can be included or fill in your email address to get a copy of them. That tool can be found here.
Property
Property law for separating couples in Ontario is very different for married spouses and unmarried spouses. It is very important to get the right information for your circumstances. For married separating couples, there are laws designed to ensure a fair division of assets and debts acquired during the relationship. Here are some key points to understand:
Equalization of Net Family Property: In Ontario, the law generally follows the principle of equal division of property. This means that the value of assets and debts accumulated by both spouses during the relationship is calculated, and the spouse with the higher net family property pays an equalization payment to the other spouse to achieve a fair division.
Net Family Property Calculation: To determine the net family property, each spouse's assets and debts are calculated as of the valuation date, which is usually the date of separation. Assets can include the matrimonial home, bank accounts, investments, vehicles, and other properties. Debts can include mortgages, loans, and credit card debts. Certain assets, such as gifts or inheritances received during the relationship, may be excluded from the calculation.
Matrimonial Home: The matrimonial home, typically the family residence, holds a special status. Both spouses have equal rights to live in it, regardless of ownership. There are special rules about whether a matrimonial home can be sold or mortgaged and also whether owning it on the date of marriage will provide a credit.
Division of Property: After calculating the net family property, the spouse with the higher value pays an equalization payment to the other spouse to achieve equalization. This payment is usually made in cash or by transferring assets of equivalent value.
Exceptions and Agreements: Certain assets may be exempt from equalization, such as property owned before the relationship or received as gifts or inheritances. However, these exemptions may vary depending on specific circumstances.
For unmarried spouses, the law is not so clear. There are claims that can be made that are based on principles of fairness and it is really important to talk to a lawyer or your mediator about the types of situations that may result in a claim here. In general:
A common law couple refers to a couple who has been living together in a conjugal relationship for a certain period of time, which can vary, and claims for property are more likely in longer relationships.
In Ontario, common law couples do not have the same automatic property rights as married couples. Each person retains ownership of the assets they brought into the relationship, and the general rule is that each partner keeps what they individually own.
Jointly Owned Property: If common law partners own property together, such as a house or a joint bank account, the general principle is that each partner is entitled to their share. If they contributed different amounts but own in jointly and don’t have a Cohabitation Agreement, they may feel this isn’t fair and will want to pursue a claim based on the principles below.
There is a principle of unjust enrichment and constructive trust: In certain circumstances, a common law partner may be able to make a claim for a share of property based on the concepts of "unjust enrichment" or "constructive trust." Unjust enrichment refers to situations where one partner has been unjustly enriched at the expense of the other. Constructive trust arises when one partner has made contributions to property, such as mortgage payments or renovations, and it would be unfair for the other partner to retain the property without compensating the contributing partner.
Remember, property division laws are complex, and each case is unique. Seeking professional advice tailored to your situation is crucial to understanding your rights and responsibilities under Ontario's property law for separating couples. In mediation the mediator will help you understand the concepts but will also encourage you to get some of that advice.
One important aspect of family separation for married spouses are pensions. It is very important to know that there are different types of pensions and it is important to look at your annual pension statement to review what type of pension you have, as it will affect how it is valued and what you can do with.