Complimentary Consultation
Contact Us: 416-964-2215
BAKER & BAKER
Family Lawyers
During your thirty minute complimentary consultation you will receive a free copy of the Ontario Divorce Handbook by Donald S. Baker, LL.B.
We ensure that all your questions are answered.
FAQs
We are here to help you with any questions or comments you may have about family law, real estate, will and estate planning. If you cannot find the answer you are looking for please email us at dbaker@bakerandbakerlaw.com
Collaborative Law & Mediation
Q. Where can I find detailed information about the Collaborative Law Practice?
A. Visit Collaborative Law Practice for information about the process, guidelines,
participation agreement.
Q. What is the difference between Collaborative Law and Mediation?
A. A mediator assists spouses in settlement negotiations without their lawyers. The proposed agreements are reviewed independently with each spouse’s lawyer. Collaborative Family Law negotiations take place with each party and their lawyer present at the same time. Both mediation and collaborative law may consist of a series of settlement meetings in order to reach a satisfactory conclusion.
Court Addresses
Q. Where can I find out a Court office address?
A. Visit Ontario Court addresses to locate the information for your region.
Custody and Access
Q. What is supervised access?
A. Where there has been evidence of domestic violence, high-conflict custody,
drugs or alcohol, concern about the safety of the child or a risk of abduction
parents may be allowed to visit their child in a secure environment under the
supervision of trained staff. Parents may both agree to allow a family member
or friend supervise access visits.
Q. My wife and I are going to separate. If our children live with her, will I still be
entitled to a joint custody arrangement?
A. Yes, you should still be entitled to a joint custody arrangement and in
turn continue to be involved in major decisions relating to your children
including their education, religious upbringing, activities, childcare and
medical care. It is imperative to remain involved in your children’s upbringing
to maintain joint custody and make every effort possible to effectively
communicate with each other in regards to the children’s best interests.
Parents who continue to work together after they separate and divorce both
maintain a strong position for joint custody.
Q. My ex-spouse is going to move to another city for a better job
opportunity and I won’t be able to visit my child during my regular access. Will
my ex-spouse be able to move with our child?
A. Custody orders may outline particular geographic limitations on the custodial
parent's right to relocate. A court will review the overall best conditions for the
child(ren) as a result of any proposed relocation, regardless of the reasons
given for the move. The court will take into consideration the amenities,
education, health care services and on-going communication for the
child(ren) between both parents. The spouse intending to move will have to
present a substitute access plan to provide alternative equivalent access, where
possible, which may have to be exercised in time blocks.
Divorce Proceedings
Q. Why should I have a lawyer represent me in family law matters?
A. Family law matters are complicated. Family lawyers are experienced and
knowledgeable with up to date modifications in family law and the court
procedures and ensure all your rights and obligations are addressed.
Q. What do I do if my spouse has filed for divorce?
A. You should consult a lawyer promptly for advice. You may contest the reason claimed for the divorce, and/or contest child custody, child support, spousal support, and equitable distribution by filing the proper documents. Even if you agree to a divorce, you should consult a lawyer immediately for professional advice on all other issues in your case so you understand the choices you can make and the possible consequences of doing nothing.
Q. How do I resolve the issues arising out of my separation from my spouse?
A. Once you are separated from your spouse, it is preferable that that parties attempt to negotiate a separation agreement. Once the terms are agreed upon, they are incorporated into an Agreement to be drafted by a lawyer.
Q. What is a Separation Agreement?
A. A Separation Agreement details the rights and obligation of both parties relating to custody, access, support, property division and divorce.
Q. What are my rights in a common law relationship?
A. Common law couples have rights to spousal support but they do not have the same property rights as married couples.
Q. What are grounds for obtaining a divorce?
A. If you and your spouse have lived separate and apart for at least one year a divorce can be granted or if you can prove that your marriage has broken down because of adultery or physical or mental cruelty. Marriage breakdown does not affect the court’s decision about custody, access, and support.
A. A motion is a court procedure to obtain a court order on an interim or final
basis which can be initiated by either party. Orders include support payments,
custody, access, property division and divorce.
Q. How do you legally dissolve a common law marriage?
A. A court order is not required to dissolve a common law marriage. Typically, disputes are resolved through negotiation, based on an equal division of shared property taking into account the actual contributions of the two parties.
Q. What is a financial statement?
A. A financial statement provides the court with an overview of your income, expenses, property and debts. It is used to determine support obligations between parties. If you are sharing expenses with a partner, you should also indicate this and provide that person’s income information.
Monthly Income and Expenses (Parts 1 to 4)
Give the current actual amount. To establish the monthly figure, multiply any weekly income by 4.33 or divide any yearly income by 12. Provide your income, deductions and monthly expenses for the 12 months prior to the date of the financial statement.
Other Income Information: Part 5
Include a copy of your income tax returns and notices of assessment for the
past three taxation years. This information is available through
Customs and Revenue Agency if you cannot locate a copy.
Other Income Earners in the Home: Part 6
This section is required only if you are making a claim for undue hardship
or spousal support.
Property and Debts: Parts 7 to 9
If any sections in parts 7 to 9 do not apply, do not leave the section blank.
Instead, print “NONE” in the section.
Q. Is it possible to have the terms and conditions outlined in an order
changed?
A. A parent must demonstrate there has been a significant change in
circumstances (material change) to vary matters of child custody, access, and
child support.
Q. Under what circumstances may I obtain a restraining order?
A. If you are concerned about your safety or your children’s due to a threat an
immediate interim restraining order may be acquired from the court for your
protection.
Q. Is a marriage contract valid if it prepared after marriage?
A. Upon marriage each partner is entitled to certain rights under the Family Law
Act. A marriage contract altering those rights is valid if both parties agree to
the new terms and conditions with the exception of custody.
Marriage Contracts
Q. I inherited money during my marriage. Do I have to share my inheritance
with my former spouse?
A. Property that is not included in an equalization calculation is referred to as excluded property and it is not shared with your ex spouse. Excluded Property consists of gifts, inheritances, income from any gift or inheritance, damages or a right to damages for personal injury.
Although you may receive a Matrimonial Home by way of a gift or inheritance, a Matrimonial Home cannot be considered excluded property. A Matrimonial Home is considered to be special property under the Family Law Act.
If a major gift or inheritance was paid into the Matrimonial Home during the marriage you cannot claim exclusion. A lawyer can provide expert advice to help determine if you have excluded Property that you do not have to share with your spouse.
Q. How is the Matrimonial Home divided between parties at separation?
A: A Matrimonial Home is property which both parties have an interest or reside in at the separation date. This can include the principle residence, cottages and out of town properties.
If you inherited a matrimonial home, or received the house by way of a gift from a third party, the value of the house as of the date of separation must be shared with your ex spouse.
If you owned property on the date of marriage and both parties reside in the same house at the date of separation you cannot deduct the value of the house from your Net Family Property as of the date of marriage.
Q. Are there any items that I do not have to split the value of with my ex
spouse?
A. There are a list of exceptions of assets do not have to be divided when parties
separate. Couples are allowed to exclude these assets by use of a marriage
contract. If a couple agree, in a marriage contract, that a home would not be
divided upon separation, the property would be exempt.
Assets that are deemed excluded property include:
· An asset owned prior to the marriage.
· A gift or inheritance received during the marriage.
· A court award or settlement for personal injuries.
· Items of exclusively personal value
· Business assets
· Family heirlooms
· Life insurance policy proceeds from a third party.
· Gifts given from one spouse to the other.
· Assets outlined in a marriage contract.
Q. How can I protect my property or business that I am bringing into a
marriage?
A. It is possible to enter into a Marriage Contract that specifically protects some property. The best way to protect your premarital business is through a legally enforceable marriage contract or prenuptial agreement. To avoid the potentially expensive process of distributing a portion of your premarital business to your spouse, a prenuptial agreement establishes each spouse’s rights in the event of a divorce.
Support & Property Division
Q. Who must provide income information for the purpose of paying support?
A. The payor must provide his income information. The receiving parent may have to provide their income information if they request special expenses, the child is over 18; there is a shared or split custody arrangement.
Q. Is child support paid while a child is attending college or university?
A. Parents are not required to provide support to children at or over the age of majority. However, if the parents cannot agree whether to provide support, then one parent could seek the support from the other parent and in certain cases a parent may be obligated to do so.
Q. Can I share my spouse’s Canada Pension Plan credits?
A. When you separate or divorce, you can apply for is an equal distribution of the pension credits that the two of you earned while you were together.
Q. Where can I find detailed information about child support amounts and
obligations?
A. Detailed child support information is available at the Department of Justice.
Q. Can I vary the support order if my ex spouse does not agree?
A. A child support order can be varied by either parent.
Q. What if there is shared or split custody of the children?
A. The Guidelines have special provisions that deal with a shared or split custody arrangement. These provisions are explained on pages 11-12 located at Federal Child Support Guidelines.
Q. How will I obtain a copy of my existing child support order if I can't find
the original?
A. Contact the lawyer who handled your case, or if possible, the other parent. You can also fill out a form at the court that issued your child support order to request a copy by calling 1-800-980-4962.
Q. What do I do if my spouse has filed for divorce?
A. You should consult a lawyer promptly for advice. You may contest the reason claimed for the divorce, and/or contest child custody, child support, spousal support, and equitable distribution by filing the proper documents. Even if you agree to a divorce, you should consult a lawyer immediately for professional advice on all other issues in your case so you understand the choices you can make and the possible consequences of doing nothing.
Q. What if we are unable to agree on terms of a Separation Agreement?
A. If you and your spouse (with or without the assistance of counsel) are unable to agree on terms of an Agreement, it will be necessary to seek the assistance of a court in determining the issues. Either party can initiate court proceedings to ensure that his/her interests are protected.
Q. I invested more money in the matrimonial home during the marriage, do I
receive a larger portion of its value at separation?
A. A matrimonial home is divided equally between spouses at separation
regardless of ownership of the home. An equalization payment
may be satisfied from one spouse to the other in the form a cash payment or
transfer of property. In cases of family violence discuss what alternate
arrangement may be for exclusive possession with your lawyer.
Will & Estate Planning
Q. What is a guardian?
A. A guardian is the person you appoint in your Will to raise your minor children. If no guardian is names in your Will, the courts will select a guardian on your behalf.
Q. How can I find a copy of a deceased person's will?
A. If a will has been filed with the Superior Court of Justice, you may inspect the file and obtain a copy of the will upon payment of a specified fee.
Q. How do I apply for death benefits?
A. Visit Dealing with death in Ontario or contact Human Resources Development Canada (HRDC) at 1-800-277-9914.
Q. How do I determine the amount of estate administration tax?
A. Estate administration tax is calculated as follows:
$5 for each $1,000, of the first $50,000 of the value of the estate, and
$15 for each $1,000 of the value of the estate exceeding $50,000.
Q. What is a certificate of appointment of estate trustee?
A. A certificate of appointment of estate trustee with a will is a document issued by the court that proves the authority of the estate trustee (formerly called an executor) to administer the provisions of the deceased's will. A certificate of appointment of estate trustee without a will is a document granted by the court that gives authority to the estate trustee to manage the estate.
Q. How do I find out which court the will was filed in?
A. Contact the Superior Court of Justice in the city the deceased lived in to request a search. You must provide the deceased's full name, address and date of death and pay an applicable fee.
Q. I have remarried and have a marriage contract. My spouse has died. Do the obligations in our marriage contract survive death?
A. When a marriage contract exists between parties where their obligations and rights relating to the matrimonial home and life insurance policies upon death have been addressed, the terms outlined in the marriage contract are generally binding.
Q. What are my rights to property and assets if my spouse dies?
A. In
the difference between the net family properties. The widow(er) may
choose to obtain the rights they are entitled to under the Family Law Act
instead of those outlined in the deceased spouse's will. In doing so the gifts
made to the widow(er) in the will are void unless the will
specifically determines that the gifts are in addition to the rights under
the Family Law Act. This determination has to be made within six months
after the death of the spouse or the will takes precedence.
A common law partner does not receive the same entitlement under the
Family Law Act.