Frequently Asked Questions on Separation Agreements

There are a number of questions that people ask in respect of separation agreements. This article will address some of the frequently asked questions in relation to separation agreements Ontario.

1. What is a separation agreement?

A separation agreement is a contract between two parties to a divorce or separation. The fact that it is a contact means that its contents are legally binding to the parties of the agreement and is governed by the law of contracts. Therefore, if any parties to the agreement fail to execute the terms of the contract either party may bring a claim for breach of contract. However, if the separation agreement is unfair or unreasonable a court will set aside such a contract and will not enforce it. For example, a separation agreement that is unreasonable is one that may exempt the noncustodial parent from paying child support to the custodial parent.

2. What aspects may be addressed in a separation agreement?
A number of aspects pertaining to how the two spouses want to handle their affairs once separated and or divorced, some of these aspects can include but are not limited to the following:

  • Custody and access to a child or children
  • Spousal support
  • Child support
  • Child maintenance
  • Debts
  • Property division

3. When will a court refuse to recognize a separation agreement?

Generally courts refuse to recognize and enforce a separation agreement as binding to its parties in the following situations:

  • Where the terms of agreement are not in the best interests of the child
  • A spouse has not fully disclosed certain assets or liabilities
  • The separation agreement is unfair, for example, one spouse waives his or her right to support without compensation

4. How do we determine spousal support?

When addressing spousal support there is need to consider the following factors (this list is not exhausted):

  • Length of marriage – normally the longer one is married the longer one spouse becomes financially dependent on the other
  • Former standard of living – generally courts like to see financially dependent spouses live according to the standard of living that he or she was used to during the marriage
  • The age and health of the spouse receiving spousal support – younger spouses who are in good health are generally viewed to require shorter periods of receiving spousal support as they are still able to find work and find a means of providing for themselves. Conversely, if the spouse is older and has poor health he or she may require more support as he or she is not likely to be able to provide for his or herself.
  • Future financial prospects of the paying spouse – spouses who are likely to be earning more in the future are often expected to pay more spousal maintenance than those who have reached the peak of their careers and have low to no chances of earning more in future.

A caution is given to persons in violent relationships or relationships where there is an imbalance of power to not have a separation agreement.

Divorce: Modifying Child Support

Similar to a separation agreement Ontario, divorcing parents may consider drafting a child support agreement. When the parents decide on a child support agreement it is of utmost importance that the agreement be put in writing and must be signed by both parents. When deciding the child support amount, it is helpful to take into consideration what the court takes into consideration – the child’s interests. Further, you can consider how much child support a judge is likely to order in your situation. Judges base their decision of the child support amount on Child Support Guidelines that are set out in Federal Child Support Guidelines which are regulations under the Divorce Act. This article will discuss modifying or changing child support.

In Ontario, child support can be changed if there is a significant change in circumstances. It must be noted that at some point after the divorce people’s lives will change and the needs of children will also change hence the need to modify or change child support. This will thus result in a change in child support orders and agreements. Such changes help to ensure that the support orders and agreements stay fair always.

Some significant circumstances that can lead to the modification of child support can be described by the scenarios below:

  • Ted is paying child support to Annie for their son Jacob.
  • Ted loses his job and can no longer pay the child support that was agreed upon
  • Ted receives a substantial raise in his income
  • Jacob finishes school, gets married or moves out to live on his own
  • Jacob is working full time
  • Jacob decides to go and live with his grandmother
  • Due to an incident Jacob is now in need of new special or extraordinary expenses

There are a number of ways parents can change the existing child support arrangements. Some ways of changing or modifying child support include the following:

Make a new agreement – If both parents agreed to change the child support they can make a new agreement. This new agreement must be drafted, dated and signed by both parents as well as by a witness. If the new agreement changes the terms of the old agreement that was filed with the court, then this new agreement should also be filed in court. One advantage of filing the new agreement in court is that it allows the Family Responsibility Office to enforce the new agreement and support amount. If the new agreement changes a final court order, then the parents need to ask the court to change the order in accordance with the new agreement.

Court order – If the parents cannot agree then either parent can ask the court to change child support. The court will only change the child support order if there has been a significant change in circumstances, for example:

  • the payer’s income has gone up or down
  • the child has left the parent home voluntarily
  • the child has moved from one household to another
  • the child is no longer in daycare or full time school

Benefits of an Uncontested Divorce

The easiest of all types of divorce is an uncontested divorce. An uncontested divorce is where the couple agrees on all issues relating to their divorce and this is when one spouse files an application for divorce and the other spouse does not file an answer. The spouse’s failure to file an answer is taken as being in agreement to the divorce filed; and he or she is not contesting the divorce and is in agreement with the divorce application. Therefore, one does not file for an uncontested divorce however, the divorce becomes uncontested if one spouse fails to file an answer to the divorce application of the other spouse within the required period of time.

The advantages of an uncontested divorce are:

  • The marriage ends in a dignified and quiet way as the courts will grant the divorce without requiring the spouses to appear in court.
  • An uncontested divorce can be resolved quicker and simpler than a contested divorce. The whole process is less stressful and there is a greater degree of privacy and control.
  • The process of an uncontested divorce is shorter than a contested divorce which tends to drag an already long process longer. However, an uncontested divorce may take between four to six months instead of a number of years (that is after the one year separation requirement), therefore it makes for a quick divorce. As a result of this shorter duration it limits the stressful and tense experience associated with contested divorces and allows the spouses to get on with their lives faster.
  • The main advantage of uncontested divorce is it lowers cost. This is because of the minimal involvement of outside parties in settling issues relating to the divorce. Here the divorcing parties must bargain with one another so as to settle issues. The issues involved in the bargaining process include such issues as child and spousal support, access and control of children, child custody, division of property and finances, etc.
  • An uncontested divorce often allows for parties to the divorce to remain civil throughout the whole process and without the conflict associated with a contested divorce.
  • An uncontested divorce has benefits to one’s family in that because the process is smooth and as a result to the low cost associated with it and the shorter time the process takes each divorce spouse can focus on their family and moving on. Further, the strain is lessened on the family and friends of the couple who are not forced to pick sides or required to give evidence by way of written or oral testimony as required in a contested divorce; which puts undue strain on the family and friends of the divorcing parties.

The main disadvantage of an uncontested divorce is where one spouse is being physically abused by the other spouse and where there is a history of domestic violence, emotional abuse or a disparity in power within the relationship. The problem this causes in uncontested divorce is that almost always one spouse has the advantage over the other, therefore, legal representation is needed for the abused party to the divorce.

Equal Sharing of Net Family Property

Equal Sharing of Net Family Property

In order to successfully end a marriage there is need for debts and assets of the marriage to be divided between the marital parties. Upon separation or divorce each spouse is entitled to what is termed and equalization of net family property. The equalization will be carried out for any couple who go to the court for the division of property as opposed to spouses who decide to settle and share the marriage’s net family property between themselves privately for a simple divorce Ontario. Any spouse can apply for equalization from the court in accordance to the Ontario Family Law Act at any time after separation has begun.

Under the Family Law Act, Ontario’s property equalization scheme is called the deferred community of property regime. The deferred community of property regime basically means that when two people enter a marriage each spouse is automatically entitled to an equal share of the profits of that marriage. According to the Family Law Act inherent in the marital relationship each party to the marriage gives an equal contribution to the marriage and hence once the marriage is broken down and there is a divorce the Family Law Act provides that there ought to be an equal sharing of what the parties to the marriage put into the marriage. The Family Law Act seeks to provide for an equitable sharing between the parties to the marriage and this is done so as to compensate the spouses fairly for their equal contribution to the marriage for its duration. Therefore, the assets acquired during the spouse’s marriage are to be divided between the two parties to the marriage equally.

However, while the contribution to the marriage may have been equal there are some circumstances that may see one of the parties to a marriage actively work at depleting the contribution made by themselves as well as by their spouse. When such a circumstance arises this begs the question if both parties to the marriage are still entitled to an equal share of the profits of their marriage despite the actions of the spouse who worked at depleting such profits? The answer depends on the facts surrounding the circumstances that resulted in the depletion of the net family property value or profit. Some actions that have resulted in the court giving an unequal sharing of the net family property are discussed below:

  • Reckless investing – this is where a spouse may have been involved in deceit and various acts of financial misconduct designed to hide his or her reckless investments from the other spouse. For example, in respect of the stock market. Thus in order to make such investments a spouse goes so far as to forge the signature of the other spouse and use the other spouse’s credit cards without his or her knowledge. And further, actively works at trying to hide the family’s financial affairs from the other spouse and suffers capital loss as a result of the investments.
  • Spending to feed one’s addiction whether alcohol or drugs and thus results in the depletion of the profits of the family.

Motion To Change Child Support

Motion To Change Child Support Ontario

Steps For Motion to Change Child Support

After a final Order has been made by a Judge with respect to monthly child support payments, circumstances may arise that warrant changes be made to the original final Order. You will likely have to bring a motion to change child support. The procedure to bring about these changes to the Order has been outlined in Section 15 of the Family Law Rules. This process entails bringing a motion to change or modify child support payments.
A motion to change child support may be brought before judge when there is material change in the financial circumstances of the payor spouse or when there is material change in the financial circumstances of the receiving child. Example of this are:

  1. The payor spouse is making less or more money since the final Order was made;
  2. The receiving child is now self-sufficient in terms of financial support; and
  3. The living arrangement of the receiving child has change

This motion to change child support implies asking the Judge to consider the new facts that have emerged since the final Order and therefore change the original final Order accordingly.

If you plan to bring a motion to change monthly child support payments, you will require evidence to put forth in front a Judge in order to argue why a change is required to the original final Order. It is thus imperative to collect documents such as: a copy of an existing child support Order, copies of Income Tax Returns including T4 slips, pay stubs, ROE or severance documentation (if applicable) and medical reports (if income deduction is attributed to health related factors). These are some examples of documents that may be helpful for your motion and are not meant to be an exhaustive list. The evidence you need to consolidate depends entirely on the nature of your circumstance. Therefore, retaining a lawyer to bring a motion to change child support can prove to be highly beneficial for this purpose as they can advise on how to build a solid case ready with all the necessary documents for your matter.

Generally a motion to change child support may be brought utilizing two approaches

The first approach is when both parties agree to the changes to be made to the original Final Order. This is called a Consent Motion. In this case all parties involved complete and file with the court: Form 15D, Consent Motion to Change Child Support, which is to be signed by each party and any assignees. You then are required to file in Court 5 copies of a draft Order. You must then complete a Support Deduction Order Information Form and then have a draft Support Deduction Order filed in court. The Clerk at the court will bring these documents before the Judge. For a motion to change, no case conference is required and neither are the parties required to attend court, unless otherwise instructed by the Court. Once the Order has been signed, the Clerk will provide the signed order or they may contact to parties to instead attend court.

In the second approach, where there is no consent between the parties on the issue of changing the original final Order, a motion to change is also brought. In this case, the moving party (the party bringing the motion) completes Form 15 Motion to Change and Form 15A Change Information Form. Once completed these forms must be brought, including any additional supporting documents, to the family court office. The clerk will then affix the seal on the first page of form 15 and will date and sign the second page of form 15. This process had effectively issued your Motion to Change Child Support. The Clerk will also mark a box on the form which will either specify whether a first court date has been scheduled or no court has been scheduled. Immediately following this your documents become ready to be served.
Keep in mind depending on where your matter is being heard, a first court date may or may not be assigned. If your matter is being heard at the Family Law Branch at the Superior Court of Justice or the Ontario Court of Justice, a first court date will likely be set. However, if you’re matter is proceeding before the Superior Court of Justice, the responding party will need to request a case conference in order to have the motion go forward.

Once the motion has been issued, you are required to serve a copy of the documents on the responding party. The documents which you must serve are:

Form 15 Motion to Change
Form 15A Change Information Form
Form 13 or Form 13.1 (Financial Statement if required)
A blank copy of Form 15B Response to Motion to Change
A blank copy of 15C Consent Motion to Change

You are required to serve these documents by a special service, which implies that the documents must be left either with the person or alternatively with the person’s lawyer. Following successful and valid service, the person who served the documents must fill out form 6B Affidavit of Service and have the filed at the appropriate court.

After the motion to change child support has been served on the responding party, within 30 days of being served they can either complete form 15C Consent Motion to Change or serve on the moving party and file in court Form15B Response to Motion to Change.

If Form 15C is signed then that implies the parties have reached an agreement with respect to the change sought in the original final Order. However, if Form 15B is served on the moving party and filed in court, that implies no agreement has been reached and the parties will further proceed to court to have a Judge make a new ruling in the matter.

We hope that this information has been helpful. If you need to setup a free consultation with a lawyer, you can contact our Family Law Lawyer at 416-792-5400.

Here are some helpful resources that provide more information about Motions to Change Child Support in Ontario:

How to bring a motion to change
How to vary a child support order
Filing or change support payments 
Consent Motion to Change

Separation Agreement in Toronto

Separation Agreement in Toronto

SEPARATION AGREEMENT IN TORONTO

What is a Separation Agreement?

If you are contemplating a separation or are separated from your spouse or common-law partner, a domestic contract known as a ‘separation agreement’ may be drafted to make arrangements for issues such as:

  1. Division of Property (i.e. who gets to keep the car);
  2. Spousal support/spousal support releases and child support;
  3. The living arrangement of the children (i.e. custody and access).
  4. Parenting plans (i.e. religious issues, educational matters, travel etc.)
  5. Debts, pensions, medical/dental benefits, life insurance.

It is inadvisable to simply have a verbal agreement between two separating partners as it may be highly difficult to prove verbal agreements before a court of law.

A separation agreement Toronto is not a requirement to getting separated or obtaining a divorce. It primarily serves to provide definition and clarity in what can be a highly confusing and stressful situation. You do not need a lawyer to draft a separation agreement as long as it is signed by both parties in front of a witness and dated.

However, while you do not formally need a lawyer to draft a separation agreement in Toronto, it is highly recommended to retain a lawyer to draft a separation agreement as determining spousal rights and responsibilities upon the break down of a relationship maybe a highly complex task. Your lawyer will  navigate you through the process to ensure you fully understand your rights and obligations under the separation agreement and that the separation agreement is clear, complete and legally enforceable.

If you cannot agree on the contents of the separation agreement, you may also choose to go to a mediator who will then mediate the issues you and your spouse or partner are facing and then try to come to solution that is agreeable to both.

INDEPENDENT LEGAL ADVICE AND SEPARATION AGREEMENTS

One lawyer cannot act for both parties who are in need of advice in respect of advising on the contents of a separation agreement in Toronto. The parties must obtain their own independent legal advice. The reason for this is that a lawyer cannot fairly represent parties whose interests are not aligned. As is often the case in family law litigation, there are significant difference of opinions when determining rights and responsibilities of the parties involved.  Therefore, independent legal advice becomes vital before signing a separation agreement.

It is also advisable to obtain and execute an Independent Legal Advice certificates so that in the future, a party will be unable to claim that they did not understand the content of the separation agreement making it unlikely for the court to set aside the separation agreement in Toronto on that basis.

WHAT IS CONSIDERED A LEGALLY ENFORCEABLE SEPARATION AGREEMENT IN TORONTO?

Section 56(4) of the Family Law Act provides that a separation agreement will be found legally enforceable if all three criteria were present at the time the agreement was executed:

  1. significant assets and significant liabilities of both parties were disclosed at the time the agreement was made;
  2. both parties understood the nature or consequence of agreement made;
  3. the agreement was made in accordance to the law of contract. (i.e. the agreement will not be legally enforceable if it contains terms that are illegal)

CAN A SEPARATION AGREEMENT BE SET ASIDE?

The Family Law Act grants the court the power to set aside or nullify a Separation Agreement or any clause in that contract if:

  1. a spouse failed to disclose to the other significant assets, significant debts or other liabilities that existed when the Separation Agreement was made;
  2. if a spouse signs an agreement while being forced, coerced or under duress
  3. if a spouse did not understand the nature or consequences of the Separation Agreement; or
  4. if the Separation Agreement was not prepared in accordance with the law of contract.

CONCLUSION

Before you sign a separation agreement you must understand that the decisions made in this agreement will effect your future and your children’s future. A legally valid separation agreement must be abided by and will likely be upheld in a court of law in case of dispute. Therefore it is utmost important  and best to have it created by and reviewed by a lawyer to ensure the protection of your rights.

Here is a list of helpful resources that you may review when deciding whether a Separation Agreement in Toronto is right for you:

Divorce and Separation
What you should know about Family Law in Ontario
What are my rights when separating?
Family Law Information Centres
Helping Children Cope
Mediation
Collaborative Family Law
Court Locations and Addresses in Ontario

Child Support in Ontario

Child Support in Ontario

WHAT IS CHILD SUPPORT IN ONTARIO?

When parents no longer continue to reside with each other, an arrangement is usually made in terms of which  parent the children may live with and for how long. Usually  the parent with which the children reside most of time is entitled to obtain from the other parent expenses relating to raising the children. This is called child support.

ELIGIBILITY FOR CHILD SUPPORT IN ONTARIO

Payment of Child Support is determined by the living arrangement of the Child or Children. If the child or children live most of the time with one parent, then the other parent must pay. In the event that the parents spend an equal amount of time in rearing the child or children, child support is still payable. In such a situation, the parent with the higher income will normally be required to pay the net difference in the parties respective applicable amounts as specified in the Federal Child Support Guidelines.

HOW IS CHILD SUPPORT IN ONTARIO CALCULATED?

There are Federal, Provincial and Territorial Child Support guidelines that specify how much child support is payable. The amount of child support is usually calculated in relation to the paying parent’s annual income. However, you must first determine which Child Support Guideline is applicable to your situation:

1)If you are divorced or have applied for a divorce then the Federal Child Support Guideline will apply. You can calculate the amount of child support payable under the Federal Guidelines here.

2)If you were never married or were married and are separated (and neither parent has applied for a divorce) then the Provincial or Territorial Child Support Guidelines apply. You can view the Ontario child support tables here.

HOW CAN I GET CHILD SUPPORT IN ONTARIO?

Depending on whether you are entitled to receive Child Support, you can arrange child support to be paid to you in the following ways:

  • Online using this Ontario Government Website. You can use this service if you are setting up child support for the first time. Please click here to go the website.
  • A written agreement between you and the other parent;
  • In accordance with a court Order. If you are faced with an uncooperative parent, you may go to the court to obtain an Order for child support to be paid to you. Please click here for some helpful information regarding filing or changing child   support.

HOW IS CHILD SUPPORT IN ONTARIO IS ENFORCED

The Family Responsibility Office is an Ontario Government office that enforces Child Support payments. All Orders for Child Support made by the Courts are automatically filed in the FRO. Separation Agreements may also be filed in the FRO provided they have also been filed in Court.

The Family Responsibility Office collects the child support payments from the payor parent and then either mails a cheque or directly deposits the support payments into the recipient parent’s account.

In the event the payor parent misses support payments there are a number of ways the FRO can collect unpaid payments:

  1. It may deduct payments automatically from the parent’s wages or income;
  2. A charge may be registered against the parent’s personal property or real estate;
  3. It may garnish the parent’s bank account or up to half of joint bank accounts the Parent may have;
  4. An Order may be made against anyone who is helping a parent hide their income or assets that may go towards unpaid child support.

If a parent continues to not make payments, the FRO may exert pressure on that parent in the following way:

  1. It may suspend that parent’s driver license;
  2. It may cancel the parent’s passport;
  3. The parent may be reported to credit bureaus, making it difficult for them to obtain a loan.

The Family Responsibility Office can collect unpaid payments from across Canada, the US and any other country with which Ontario has an agreement.

Keep in mind that if a change is required to the amount of support payments, the FRO cannot be asked to make that change. If a parent believes a change in support payments is warranted, that change must be reflected in either a new Agreement or you can go before a court and ask to have the support Order changed.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.

Uncontested Divorce in Ontario

Divorce Lawyer Toronto

When filing an uncontested divorce in Ontario, there are two types of uncontested cases:

Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, your spouse is served with the divorce papers. Your spouse then has 30 days to contest or challenge the divorce, or make a claim such as for support, property, custody, etc. If your spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the Ontario court.

Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both the husband and wife sign and swear the divorce papers, including the Affidavit of Divorce. Neither spouse is suing the other for divorce – you are simply asking the Ontario court to grant a divorce based on separation. In a joint divorce application, spouses can also jointly ask the court to include an order relating to custody, access, support if both spouses agree to the terms. Couples prefer filing a joint divorce because filing in this manner does not require serving divorce documents on the other spouse.

Divorce Time Frame: The time that it takes to process an uncontested divorce in Ontario varies based on a number of factors. One of these factors may be the courthouse in which your divorce papers are filed. Family courts across Ontario vary in the time they take to process applications. However, as a general time frame, if all the necessary steps are taken and the documents are filed on time, it takes about 2 to 3 months to process the entire uncontested divorce in Ontario.

Clearance Certificate: Once the 8A application for divorce is filed, a document called the “clearance certificate” is sent from the Central Registry of Divorce Proceedings located in Ottawa, Ontario to the courthouse in which the divorce application is filed. This Registry keeps nation-wide records of divorce applications filed after July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. If there are no other divorce applications involving the two spouses, the clearance certificate is sent and the divorce process moves forward. For more information about the Central Registry, you can click here.

I hope we were able to give you some of the information you required in order to make your decision about the type of divorce in Ontario that you will be filing. Whether you are filling a sole divorce or a joint divorce, our Family Lawyer can process your case or guide your decisions. Here is a link to recent publications about Family Law on the Department of Justice website.

NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.