Frequently Asked Questions

My spouse moved out.  Am I legally separated?

The short answer is no.  A legal separation involves working out an agreement with your spouse on issues arising out of your separation and putting that agreement in writing or getting a court to make an order setting out the terms of your separation.

How can I get my spouse to move out?

If you are married, the law in Ontario allows both spouses to live in the home you lived in during the marriage.  This property is called the matrimonial home.  If your spouse won’t move out voluntarily you will need to get a court order for ‘exclusive possession’ of the matrimonial home.  Courts are not always willing to make these kinds of orders.

My spouse is abusive.  What should I do?

you need to develop a plan to protect yourself (and your children, if applicable) before taking any steps to end your marriage. A lawyer who has experience with spousal abuse (ask!), an experienced therapist, or a women’s shelter are good starting points for confidential inquiries about how to make leaving as safe as possible.

What is a Restraining Order?

If your spouse is harassing you or has been violent to you or your children you should seek help from a family law lawyer and from the police right away.  There are both family law and criminal law restraining orders that can be made very quickly requiring your spouse to stay away from you.

Is it okay for me to move with my children?

It depends.  If you have custody of your children and you want to move to a different city with your children you will have to ask the court to allow you to make this move.  This is an issue of “mobility rights”, and the court’s primary consideration will be what is in the best interests of your children.  In looking at those interests the courts will consider both the negative effects of the move on taking the child away from the other parent, family, friends, etc.; and the positive effects the move might have, in that the parent with custody could have a better job opportunity in the new location, or an opportunity to live with their parents who would care for the children or to live with a new spouse.

My spouse is not allowing me to see our children.  What should I do?

If you do not have a court order or separation agreement setting out terms of custody and access to your children, you will need to commence a court proceeding to make an order for custody and access for your children.  If a court order  for access or a separation agreement  which includes terms of access is not being followed, you will need to commence a court proceeding ask the court to require your spouse to comply with the access terms in the order or agreement.  If the problems continue with the access arrangements, the court can impose penalties and, if it is in the child’s best interests, the court may make changes to the custody/access arrangements.

What rights do grandparents have to access visits with their grandchildren?

Grandparents and other relatives of a child may be granted rights to have access visits with a child.  If the child’s custodial parent does not agree to the grandparents having visits with the child, the grandparents will have to start a court proceeding for access and they will have to show the court that there is a close relationship between them and the child and that ending this relationship will have a negative impact on the child.

If the child lives with both of his or her parents and both of the child’s parents refuse to allow the child to see his or her grandparent, it may not be possible to prove that it is in the best interest of the child that the grandparent be allowed access to the child.  In such cases the courts will likely defer to the parents’ decision to not allow their child to see their grandparents.

Is child support taxable?

No.  A parent who pays child support cannot deduct the child support payments from their income and a parent that receives child support does not have to claim child support received in their income.  Child support payments are in effect tax free.

What can I do if my spouse is not paying the child support we agreed to in our separation agreement?

In Ontario, if child support payments are not being made in accordance with a signed separation agreement, the separation agreement can be filed with the court and with the Family Responsibility Office (the FRO) for enforcement.  The FRO or the support recipient can also start proceeding in court to collect the past support that is owed.   It may be possible to have payments directly from the support payor’s employer, bank garnishments or filing writs against property that the support payor owns. The FRO can also ask the court to suspend a payor’s driver’s licence if payments are not being made.

My income has decreased significantly.  How can I get a change to the child support I am required to pay?

You will need to commence a court proceeding to obtain a new order for support in order to make any change.  You will need to prove the change of your income to the court before a new order will be made.

Where can I find information about how much child support should be?

Child support is determined in accordance with the Child Support Guidelines in Ontario.  The payor’s gross income and the number of children for which support is payable are the primary determining factors in calculating the child support to be paid according to the Child Support Tables.

In addition to the ‘Table’ amounts of child support are added additional amounts representing the payor’s ‘share’ of certain expenses – known as section 7 expenses – which include daycare; extra-curricular activity; private school; and post-secondary school expenses.   Other factors can or will be taken into consideration when determining the amount of child support payable, depending on the circumstances.

I received an inheritance while I was married.  Do I have to share this money with my spouse?

In most cases, you will not have to share the inheritance you receive during a marriage with your spouse if the marriage breaks down.  The Family Law Act of Ontario provides that inherited property can be excluded from the sharing of property accumulated during a marriage.  However there are certain rules and restrictions which may result in the inherited property losing its exclusion.

How long does it take to get a divorce?

The Divorce Act allows for couples to divorce after they have lived separately for one year.  Living separately can include living separate lives in the same residence.  Where either the husband or wife is able to prove to the court that the other spouse has committed adultery or has treated them with physical or mental cruelty,  a divorce may be granted even though the couple has been separated for less than one year.

What should you do if you don’t think you are the father?

Ontario’s Family Law Act presumes that a man is the father of a child if at the time of the child’s birth the man is married to the mother of a child, or if he has lived with the mother in a relationship of permanence. In situations where a couple is not married and are not living together, or there is a refusal to acknowledge paternity, a court application seeking a declaration of paternity can be brought.   Through blood and DNA testing, results can be obtained which will accurately determine paternity.

What is the difference between joint custody and shared custody?

Joint custody means that both parents make major decisions about the children together and shared custody exists when children live with each parent at least 40 per cent of the time.

I want to travel with my children outside of Canada.  Do I need the permission of my children’s other parent?

Yes you will.  You will not be allowed to cross the border with your children unless you can show that the other parent has consented to you taking them out of the country, or can show a court order allowing you to travel with the children.  We can help by providing you with a travel consent letter to be signed by your children’s other parent providing you with permission to travel with the children.

 How do I choose a family law lawyer?

Selecting the right family law lawyer for you is a matter of critical importance.  Most importantly you should feel comfortable talking to the lawyer you choose – You will need to discuss personal details of your life with them.  Make sure that you feel heard. While a lawyer may not always agree with what you say,  the lawyer should not act without your instructions.  Make sure you understand what your lawyer is saying.  Your lawyer should strive to make sure that you understand the law as it applies to you.

Make sure that your divorce lawyer’s practice is focussed on or has an emphasis in Ontario Family Law. You do not want someone who ‘dabbles’ in family law handling your divorce.  Ensure that your family lawyer has several years of experience.  You do not want the principal lawyer working on your file, learning the ropes on your file. It is always a good idea to contact your provincial law society or visit their website to find out if the family lawyer is in good standing. Are you able to schedule an appointment with the family lawyer easily? If the lawyer can’t see you to talk about new business, it may be even harder to get his or her attention to talk about your case once it’s been underway for a while.  Be sure to ask whether the lawyer you choose will the lawyer who will be representing you in court and meeting with you on a regular basis.  In many cases the lawyer you meet at first will pass your file to a more junior lawyer who will be the person actually working on your file and the lawyer you thought you had chosen will have very little involvement with you after the initial interview. Unless there are special circumstances, you will want to hire a family lawyer with a local office.  Lawyers may advertise several locations, but really only work out of one location and may be reluctant to meet you at one of their satellite offices.

Family law requires sensitivity, creativity and clear-headed thinking.  While you want your lawyer to have compassion for you and your children, you must be able to look to your lawyer for sound and practical advice.