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PART 1.3

FREQUENTLY ASKED QUESTIONS - SEPARATION

Custody

Remember: custody usually refers to major decision making (Parenting time is a separate thing).

"I want sole custody will I get it?"

Some form of joint custody tends to be the preferred arrangement unless there is a compelling reason that it would be contrary to the children's best interests for both parents to be making major decisions.

Supervised Access

"Can I make his (her) access supervised access?"

For access to be formally supervised, there usually has to be a compelling risk of abuse, either physical or emotional.

Supervised access at a Supervised Access Centre provides a safe forum for parent-child interaction with a neutral observer who can report on progress.

The objective is usually to assist in improving parenting skills to transition safely to unsupervised access.

Parental Rights

"How do I protect my right to see/to parent my children?"

Children have the right to have their own relationship with each parent. There is a principle called the maximum contact principle. The children are to have as much contact as is practical with each parent.

Child Support

"How is INCOME calculated?"

Income can include employment income, income from self-employment, business income, stock options, car allowances and other employer bonuses, and dividends from stocks.

"Do I get some kind of list of what my ex spends on the kids?"

No. The receiving party does not have to account for regular spending.

"I have heard about this 40% rule if I have the children 42% of the time do I pay less child support?

In Ontario, shared custody takes effect when one parent has the children at least 40% of the time. When this happens, a setoff of child support takes effect under section 9 (a) of the Child Support Guidelines. This is the starting point. Sections (b) and (c) then allow a consideration of overall spending and adjustments.

In practice, this a very difficult area of law. The courts are undecided about how to calculate 40%. The great discretion leads to uncertainty in predicting outcomes of expensive court processes.

"When does child support end?"

Usually, when the child becomes an adult. Or, if the child goes to full-time university or college, you'll have to continue support usually until the child completes his or her first degree or diploma.

Special and Extraordinary Expenses section 7 of the Child Support Guidelines

"What if I can't afford to pay for extra-curriculars?"

There usually has to be mutual consent of the parties for most spending on special/extraordinary expenses. These are to be shared in proportion to the incomes of the parents.

Property

"My ex has a pension/stock options/employee stocks/etc. what about those?"

Stock Options have to be valued by an expert.

Pensions - if federal, have to be valued by a private actuary. If provincial, have to be valued by the pension administrator. Tax considerations have to be valuated by an expert.

"I received a gift/inheritance during marriage, do I have to share it?"

As long as the amount is traceable, as long as it was not used to pay down the mortgage on the matrimonial home, and as long as the inheritance is not the matrimonial home itself, then that money is excluded from the marriage.

"The money was lent to us by my parent to buy our home will they be repaid?"

This will depend on the facts of the loan and repayment terms. If it looks like a gift, it probably was not a loan.

"Does it matter whose name is on the property? We each keep what's in our own names, right?"

It makes a difference to the calculation of equalization. You don't divide actual items. Rather, there is a compensation scheme whereby the person who leaves with more pays the person who leaves with less half of the difference.

If you're common law, you just keep what's in your own name, and there is no paying of half the difference. You might have an argument in trust law if you've being paying into a house or business and you're not on title. Trust arguments are usually expensive court cases.

Kitchen Table Arrangements

"We sat down and drew up our own agreement and signed it is it valid?"

It might be. It might not be. There are many complexities of family law. There are many requirements under the Family Law Act for such a contract to be valid.

Don't despair. In nearly all cases, the kitchen table arrangement will still be useful as an agenda to work out your binding separation agreement!

 


Continue to Part 1.4 - Separation and Divorce
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