familylawFAMILY LAW

Family Law is a complex area of law, and can describe a wide variety of situations and claims.

Many people may have issues which require the assistance of a skilled family lawyer.  These people may be married or common-law, or may never have lived together at all.  Some have children together and some do not.  Some may wish to make claims with respect to debts or property.

Here are some of the family law issues that the professionals at Woolcott Krashinsky LLP can help you navigate.

Divorce 

Two people who have been married, either in Ontario or in a foreign jurisdiction, and are now separated may be eligible to obtain a divorce in Ontario.  This sort of claim always requires the involvement of the courts.  Generally, one party must be ordinarily resident in Ontario to make an application in this province.

While a divorce may trigger a series of other claims, in some cases a simple divorce is all that is required.  In these cases, the most common ground for obtaining a divorce, under the Divorce Act, is that two parties have been living separate and apart for a year or more.  It is also possible, though uncommon, to obtain a divorce in cases of adultery, or of physical or mental cruelty.

It is very important to obtain good legal advice before proceeding with a divorce.  Sometimes a divorce is impossible to obtain without first making other arrangements, for example with respect to child support.  In addition, once a divorce order is made, it may be more difficult or impossible after a certain amount of time to deal with other issues such as property.

The experienced lawyers at Woolcott Krashinsky LLP can assist you by giving you focused advice on this issue that is relevant to your specific situation.

Property Division

Property division is a complex and quickly evolving area of family law.

Under the Family Law Act, when two people who are legally married and have separated, either party may make a claim for the division or equalization of property.  Generally, all property accumulated during the marriage is subject to equalization, which refers to the sharing of all property accumulated minus debts.  The matrimonial home is a special type of property with a separate set of rules.

While unmarried people cannot access Part 1 of the Family Law Act to make equalization or division claims, they may still be able to make claims through other common-law avenues.  Unmarried people may have rights to each other’s property under claims for constructive trusts or resulting trusts, for example in cases where these parties have worked together in a joint family venture. Even if these types of claims cannot be made, common-law couples frequently own property together and incur debts together.  These may still need to be dealt with by a court.

When dealing with property claims, it is extremely important to speak to a lawyer as early in the process as possible so that you do not take any steps which will harm your rights.

Equalization claims are complex, and lawyers without proper experience often do not take all the issues into account.  Tax implications, proper valuation of property, and available credits and deductions have to be considered in order for you to put yourself in the strongest possible position.  Some types of property, such as family heirlooms or pets, have special significance to people well beyond their cash value. Let our experience guide you in obtaining the best possible results.

Spousal Support

Since the law views spousal relationships as financial relationships, when a marriage or cohabitation has ended, the person with more income or assets may have to pay support to the other spouse.

The law requires a two-step analysis in considering any spousal support claim.  The first question asked is whether or not the claiming spouse is in fact entitled to spousal support.  Not all spouses are entitled to spousal support.  Once entitlement is established, the amount of support payable, and the duration of time for which support will be paid, must be determined.

Whether you seek to receive spousal support, or to ensure that you are paying a fair amount of spousal support, we will ensure that the issue is fairly negotiated, or if necessary litigated in court to obtain favourable results within the provisions of the law.

Custody, Access and Parenting Plans

A separation or divorce can be difficult and emotionally stressful life event.  When children are involved and parents cannot agree on appropriate care arrangements, these stressors can quickly become overwhelming.  Children can quickly find themselves caught in the middle.

In Ontario, custody may be agreed upon or ordered by the court.  Custody is a complicated concept, one that is frequently misunderstood by parents in crisis.  Custody, which can be joint, sole or shared, is different from where a child primarily resides.  In some recent cases, a specific “custody” term may not even be required.

For most parents, the most important issue for them is the parenting plan that is put into place for their child or children.  A separated couple’s parenting plan may cover an array of issues, including who is to care for their child at given times throughout the week, how holidays will be divided, how responsibilities for decision-making will be shared, and how expenses for the child will be incurred and who will pay.

Arrangements for children often evolve over time.  A plan for children that worked well six months after your separation may need to be updated, or changed entirely, months or years later.  Parents may want to move to another town or even another country, requiring entirely new plans to ensure that children have the maximum possible contact with both parents.  It is common that creating and altering parenting plans is an ongoing effort that extends until children are adults.

Sometimes, parents do not act in the best interests of their children.  There are cases where one parent alienates their child from the other parent.  On occasion, one parent may simply, for various reasons, be unfit to look after their child without supervision or assistance. Issues of abuse, violence, mental health issues, drug and alcohol addiction, and other factors may further complicate the question of what is best for a child, and how to best achieve this result.

Now more than ever, families are more complicated than a “two parents and their children” model.  The increasing prevalence of blended families may mean that there are three, or more, people who meet the definition of a “parent” for purposes of custody and access, and even support.  Recent legislative amendments in Ontario have highlighted the important role of grandparents in the lives of children, and have reinforced the ability of such extended family members to seek orders and agreements for access to children.

Our firm has a long track record of dealing with the most sensitive and complicated of custody and access issues, including cases of parental alienation, grandparent access rights, shared parenting, and supervised access.  Whatever your situation, the professionals at Woolcott Krashinksy LLP will help you make the best arrangements for children. We seek to ensure that the best interests of your child are always kept paramount.  Let us help you decide on the custody and access arrangements that will work best for your family.

Child Support

Both parents have a responsibility to financially support their children. If your child is not primarily living with you, you have an obligation to pay support to the child’s primary care-giver.  Ontario has a series of calculations for the payment of support.  These tables, called the Child Support Guidelines, were implemented in an attempt to provide an easy reference for parents to find out how much they owe in support.

Not all cases fit into the calculations set out in the Child Support Guidelines.  In some cases, people care for their children for an equal or nearly equal amount of time, and a more complicated analysis is necessary.  There may also be additional expenses over and above the guideline amount, known as special or extraordinary expenses, which require additional contribution by both parties.  Sometimes, the payor’s income is unreasonably low and must be grossed up or imputed to accurately reflect what he or she should be paying.  On other occasions, accurately determining what the payor’s income is for child support purposes (for example for self-employed individuals) can be complicated.

The increasing prevalence of blended families may mean that more than two people have a financial obligation to support a child.  These cases, where a non-biological parent has nevertheless stood in the place of a parent to a child, require a special method for calculating support, and determining if support should be paid.

In Ontario, support is the right of the child, and cannot be negotiated away by either party.  This “child support first” model can affect divorce, spousal support, and even property division in certain cases.  Let us assist you to ensure that your child receives the support that is fair and required under law.