What are my rights and obligations?
Answer: If you are just getting into a relationship, are currently in one, or are just ending a relationship, there are aspects of family law of which you should be aware. There can be long-term legal implications arising from personal relationships, whether or not you become married.
Do any of these areas of family law affect you?
- Pre-nuptial and post-nuptial agreements
- Cohabitation agreements
- Separation agreements
- Court proceedings for a separation
- Paternity proceedings
- Determination of custody, care and control, or access of children
- Determination of entitlement to spousal support
- Determination of amount of spousal support or child support, and the
- Duration of support payments
- Enforcement of support payments
- Division of marital property, including pensions
- Occupation of the marital home
- Guardianship or adoption of children
- Restraining orders
Who has custody of the children?
Your child has the right to have an ongoing and meaningful relationship with each parent after a separation occurs. By law, parents who have lived together after the birth of their child have joint legal custody. When the parents no longer live together, they can maintain joint legal custody of their child. In such a case, a child can reside primarily with one parent, and spend regular periods of time with the other parent, or the care and control of the child can be shared by the parents. Generally, both parents would consult with each other on major decisions affecting the welfare and upbringing of the child, and make those decisions jointly. Sometimes an arrangement of joint legal custody is not possible. In that case, one parent has sole custody of the child and the other parent may have access with the child. Access can occur at set times, or on a reasonable basis as the parents may agree.
In all cases, what is in the best interests of the child is the paramount consideration. What arrangement is best for your child? A lawyer can advise you of the many options that are available. If an agreement cannot be reached, court proceedings can be instituted, and a judge will make the decision.
Who pays spousal support?
This is a complicated area of Family Law. The right to receive spousal support payments must be proven by the person seeking those payments. Some factors to consider are the roles adopted by each spouse in the marriage, the duration of the marriage, and whether or not a spouse was economically disadvantaged by the marriage or the breakdown of the marriage. What factors are relevant to you?
If a spouse is entitled to support, the payments may be for a definite set time or of indefinite duration. The reasonable likelihood of a spouse becoming financially independent is a key factor in the determination of how long spousal support payments will be made. The amount of the payments will depend upon the means and needs of both the payer and the recipient of the payments. A lawyer can advise you of what might be a reasonable amount of spousal support and how long it might have to be paid.
Who supports the children?
Parents have a joint legal obligation to contribute to the financial support of their child, whether or not they have lived together after the birth of their child. The cost of raising and maintaining the child must be determined as best as possible, and then, the parent with whom the child does not primarily reside will pay a set amount of child support. This amount is determined by reviewing the financial circumstances of each of the parents and the relative ability of the parents to financially support the child.
Child support payments can continue after the child has turned 18 years. of age under certain circumstances, such as the continuation of the child’s education. What might be reasonable in your case?
How is property divided?
Marital property includes both family assets and commercial assets. The general rule is that all property acquired during the period of married cohabitation or specifically in contemplation of marriage is equally shareable. Gifts, inheritances and damage awards for personal injury generally are not shareable. There are exceptions, though, and it is advisable to consult with a lawyer on property matters.
Marital property includes things such as a residence, other real property, furnishings and household effects, motor vehicles, RRSP’s, savings, bonds, cash surrender values of life insurance policies, stocks and any interest in a business. As well, pension benefit credits earned during the period of married cohabitation are shareable. These include employment pensions and the Canada Pension Plan. What property might be shareable in your case, and how is the value of the property determined?
Do you need protection?
If there has been violence or the threat of violence in your relationship, or you have a real fear of your partner or former partner, you may apply to the court for a restraining order. There are different types of restraining orders. For example, you may obtain an order prohibiting a person from attending your residence or place of employment. This is an order of prohibition. You also may obtain an order prohibiting someone from harassing you. This is an order of non-molestation.
Restraining orders can be enforced by the police, and there can be criminal consequences for individuals who disobey restraining orders.
Can your rights and obligations change?
It is possible to change written agreements or court orders dealing with custody, care and control or access of children, spousal support and child support. In such a case, there must be a significant change in circumstances from the time the original written agreement or court order was made. For example, you may suffer a loss of employment and require a reduction in the amount of support payments. Have there been any changes in your life that can change your rights and obligations?
How Do You Proceed?
If an agreement can be reached by the parties concerned, that agreement can be recorded by a written agreement. Sometimes a third party can be helpful in mediating the terms of an agreement. If agreement is not possible, court proceedings may be instituted. Sometimes court proceedings are necessary at the outset, depending upon the relief that is required.