"Listening and truly understanding the needs of my clients during this
difficult time is my number one priority."

>> Greg Cooper, Family Law Mediator and Arbitrator.

Toronto Ontario Family Law Blog

The benefit of mediation in dividing property

The division of property is a big part of an Ontario divorce settlement, and it could also be a source of disagreement, stress and confusion for you, especially in a high-asset divorce. The law has an impact on how property is divided, but when you agree to divorce mediation, you have the opportunity to choose how the division of property best suits your needs.

A high-asset divorce often means more complex financial issues, which affect the financial standing of both you and your estranged spouse. This may involve pensions, household items, land, retirement benefits or investments. If you were a stakeholder in a business along with your spouse, what happens with those assets also needs to be determined during the property division stage.

Unmarried couples and separation in Ontario

Couples in Ontario who are not married may think that they are in a common-law relationship, but in fact, the term "common law" does not legally exist in that province. However, couples in Ontario who have lived together for at least three years are considered to be in a relationship that is similar to common-law relationships in the rest of the country. Having children changes how the relationship is viewed. Couples who have lived together for only one year are considered to be in the equivalent of a common-law relationship if they have a child.

However, this status may not confer as many benefits as some individuals think. For example, if the individuals separate, their relationship has no bearing on how property is divided. When a relationship ends, an individual can file a claim on another's property on the grounds that they have contributed to its upkeep, but courts will use the law of constructed trust rather than matrimonial law in making a decision.

Dividing the marital home and pension benefits

Ontario residents who might become involved in a contentious divorce may be interested in learning about how the courts handle certain complicated assets during property division. For example, the family home and each individuals' pension accounts may both be sizeable assets that are subjected to division at the end of a marriage.

In addition to the financial interests that might be inherent in the family home, the property could also represent an emotional foundation for the family. When a divorce occurs, both parties have an equal right to stay in the home. This means that neither party is able to make certain decisions regarding the property without the other individual's permission. For example, one party may not lease, sell or mortgage the estate without the permission of the other party. However, an order or agreement that establishes exclusive possession of the property may help a former couple avoid such issues.

Spousal support can be a pivotal issue

Ontario couples preparing to dissolve their marriage may be anxious about the issue of spousal support. Divorcing couples prove to be incapable of agreeing not just on the specifics of spousal support but also on the issue in general, and so it is resolved in court by a family law judge. In making determinations, the judge relies on the Divorce Act, a federal law that governs the issues pertaining to divorce.

Normally, spousal support is ordered when there is a large disparity between the incomes of the two spouses, with the higher-earning spouse being ordered to pay the lower-earning spouse a set monthly amount. However, if the lower-earning spouse owns significant assets that make up for the income difference, judges may use their discretion to deny spousal support.

Parenting plan considerations

In dealing with their divorce, parents in Ontario may find that issues related to their children are some of the most difficult. However, working through their differences to create an appropriate parenting plan is important. Such a plan allows a child to maintain a relationship with both parents while equipping parents to act in that child's best interests as important decisions are made.

A parenting plan is an overview that is recorded in written form to explain the goals and methods to be used in raising a child upon completion of divorce proceedings. Rather than using legal terms, the plan is a simple outline dealing with issues such as the approach to be used in making decisions, the manner in which information will be shared, and scheduling time to be spent with a child. The goal is to ensure that objectives are clearly defined with the needs of the child being a priority. With a formal plan, conflicts can ideally be minimized, promoting more positive relationships and a sense of stability for a child.

Applying for divorce

Spouses in Ontario who want to divorce may file an application under the federal Divorce Act. Generally, the spouses need to be legally married under Canadian laws or recognized as legally married in Canada. One of the spouses also needs to have lived in Ontario for an entire year prior to applying.

The only reason that two spouses may divorce is because of a breakdown in their marriage. According to the Divorce Act, a marriage breakdown occurs when the spouses have lived apart for at least one year, if one spouse was mentally or physically cruel to the other, or if one spouse commits adultery. It is possible to qualify for a divorce if the spouses live separately but under the same roof. They may also try to live together again in an attempt to reconcile up to 90 days prior to or after filing an application. The action can continue as usual if the reconciliation does not work.

Understanding the process for relocating a child after a divorce

Ontario parents who wish to relocate with their child after a divorce may be interested in some information on how courts decide on these issues. In most cases, the judge will analyze several factors in making their decision.

When dealing with parental relocation issues after divorce, courts are often torn between the desire to allow the child to keep contact with both parents and the right of parents to move to another province for a better life. Courts generally focus on the best interests of the child as their main factor as in most issues pertaining to custody. However, it may frustrate parents to know that the facts of each situation, including the jurisdiction, judge and particular the type of move that is in question, make predicting the outcome of such a decision very difficult.

Legal assistance for spousal support negotiations

Spousal support is a divorce issue that sometimes comes up during alternative dispute resolution. Although spousal support is not an automatic part of every divorce, it is an important topic to address while negotiating a financial settlement.

At Cooper ADR, we help spouses to negotiate for a fair divorce settlement that sometimes includes an agreement for spousal support. Depending on your unique situation, we may be able to help you to negotiate for ongoing spousal support payments, payments that decline over time or one lump-sum payment. In some cases, regular spousal support payments may continue until the receiving spouse remarries or another life change triggers an end to the payments.

Spousal support and social assistance eligibility in Ontario

When people in Ontario need to use social assistance, they are required to seek spousal support from their ex-spouse that they might be entitled to. If they do not make reasonable efforts to seek spousal support, they may end up with less social assistance or their benefits may be denied all together.

Applicants for social assistance who do not already have a support order will be expected to provide information about their ex-spouse to the family support worker. If an applicant or their child has been the victim of abuse by the ex-spouse, they are not required to seek spousal support from him or her. They may also not be required to do so if the other spouse cannot be located or if he or she is not working and cannot pay the support.

Different types of child custody

Parents going through a divorce in Ontario may want to become familiar with the different kinds of child custody. Depending on the custody arrangement that is worked out during a divorce, a parent may have joint custody, sole custody or access. The custody arrangement may be arranged by parents during mediation or decided by a judge in a court hearing.

If parents are able to make decisions about their child together, a judge may approve an order for joint child custody. Because joint custody means both parents will have to agree on all major decisions about their child's life, this arrangement requires a lot of communication between the two parents. In some cases, parents with joint custody may decide to divide decision-making responsibilities rather than communicate with each other about each decision.

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