Family Law

Family law, includes marriage and cohabitation agreements; separation agreements; separation and divorce; custody and access; adoptions; child and spousal support; division of property, including pension division; income tax advice; mediation and dispute resolution.

Grounds for a Divorce

There is one ground for divorce in Canada: "breakdown of marriage." This ground is established if:

• The spouses have lived apart for at least one year immediately preceding the divorce judgment;

• The defendant spouse has committed adultery; or

• The defendant spouse has treated the plaintiff spouse with physical or mental cruelty of such a kind as to render continuation of the marriage intolerable.

The first criterion is a non-fault one and may be invoked by either or both spouses. A divorce action may be commenced before the one year period has run, but the divorce judgment cannot be granted until it has elapsed.

The second and third criteria, allow a quicker divorce without having to wait out the one-year waiting period. These are fault-based criteria and are available only to the "innocent" spouse.

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Reconciliation is Encouraged

Canadian divorce law encourages reconciliation. Canadian Divorce lawyers are required to discuss the possibility of reconciliation and to inform clients of available counseling or guidance facilities. The law also requires lawyers to promote negotiated settlements and mediation of support and custody disputes.

The court, before considering the evidence in a divorce case, must be satisfied that there is no possibility of reconciliation between the spouses. If the court sees a possibility of reconciliation the court must adjourn the proceedings to give the parties the opportunity to attempt to reconcile.

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Division of Property

Division of property is governed by provincial and territorial law.

The laws of the provinces differ but generally In dividing property on divorce, the assumption is that people should have an equal share of property gained by the efforts of each partner. In most cases, contributions of a homemaker and an income-earner are treated the same. Some property is not equally divided. Exempt property may include property owned before marriage, gifts from someone other than your spouse, inherited property, and property which is the subject of a written agreement. The amount, by which any exempt property has increased in value since it was acquired, may be shared equally between married spouses. Pensions are often a significant asset.

The laws on division of property in your province should be consulted for an exact allocation.

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Custody & Access

Best Interest of the Child
Custody or access must be based on the best interests of the child. The court has broad discretion to grant custody or access for a definite or indefinite period and subject to whatever terms, conditions or restrictions it thinks are appropriate given this standard.

Involvement of Both Parents is Encouraged

"In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact." (Section 16 (10) of the Divorce Act)

The Act entitles a spouse who is granted access to a child to make inquires and to be given information concerning the health, education and welfare of the child, unless the court orders otherwise. The purpose of this is to facilitate the non-custodial parent's meaningful involvement in the making of decisions concerning the child.

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Child Maintenance

Child support may be ordered in a lump sum or in periodic payments, for a definite or indefinite period or until the occurrence of a particular event.

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Federal Child Support Guidelines

The guidelines are set for each province and are a guide to the amount of Child Support payments that should be made. Please refer to: Federal Child Support Guidelines

Spousal Support, Alimony

Spousal support payments can be established either under Federal law: the Divorce Act or under provincial or territorial acts.

Spousal support, or alimony involves transferring a portion of one spouse’s income to the other spouse after separation through monthly payments by the higher-income spouse. It is designed to recognize that since the spouses were sharing their incomes during the marriage, it may be appropriate that the higher-income spouse subsidize the lower-income spouse’s income in order to share the economic consequences of the marriage breakdown. Such subsidies, however, do not necessarily continue forever.

The law continues to evolve, reflecting social changes and a desire to find a fair way to apportion the economic consequences of divorce. There are no concrete standards to determine whether spousal support should be paid, how much or for how long. There are some general guidelines found in the legislation, and the Supreme Court of Canada has handed down some fundamental principles.