Thunder Bay Family Lawyer, Lauren Conti, breaks down some common terms used in separation and divorce.
Our first Live Q&A in October 2021 with local family lawyer Lauren Conti was jam-packed with good information. Lauren managed to condense the basics of family law, the options for legal representation in separation and divorce, and what to expect when first meeting with a family lawyer all into one 45-minute talk.
It was an especially good reminder that most women (us included) find themselves in the legal landscape of separation and divorce without speaking the language of lawyers, courts and judges.
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There are a lot of legal terms that get used to draft and negotiate separation agreements or divorces, and understanding what they each mean will help you better understand your legal rights and options.
To help, we’ve put together an edited excerpt from Lauren’s talk, with her introduction to some of the common terms and concepts of Family Law:
Spouse is a term used to mean a married person. It can also be a person you share a child with, or a person you’ve been living with in a continuous relationship for 3 years or more.
If you are common law spouses in Ontario, you are two people that haven’t been married, but have lived together in a continuous relationship for three or more years or have a child/children together.
Common Law is a bit of a different regime when it comes to dealing with property, so it can be a good idea to consult a lawyer if you are separating from your common law partner.
A separation is when two spouses decide to live separate and apart and there is no reasonable possibility of reconciliation (this can occur under the same roof). If you’re married, separation doesn’t end the marriage or automatically turn into a divorce. There is no time limit to being separated; you can remain indefinitely separated from your spouse and never file for divorce.
A divorce is when a court officially ends a marriage and it severs your legal relationship as married spouses. In order to file for divorce in Canada, you must first complete a full one year of separation (living “separate and apart”). The only exception to this rule is if your divorce is filed under the grounds of adultery or cruelty.
You need a certificate of divorce if you want to get remarried. You have the option to file for divorce online in Ontario, with or without a Separation Agreement, or you can get help from a lawyer.
A lot of people talk about “legal separation” but there is no such thing in Ontario, it’s not a term lawyers use. A Separation Agreement is the term used to formalize the terms of your separation.
A Separation Agreement is a legal domestic contract about family life. It’s a contract between two spouses that are going to unhitch; they aren’t going to be spouses anymore. It deals with all the issues related to your separation and is a path and your main document that you will both follow until forever or until there is a material change that says you are going to open that agreement and re-negotiate something.
This used to be called custody. It’s about making significant decisions for the kids—the big decisions like education, religion, health. It can be either joint between both parents or just one parent has decision making.
Parenting time is about where any children are going to be, where they are going to live. It’s the time your child or children spend in your care, regardless of whether the child is physically with you during that time (for example, if the child is at school).
There are many different ways to arrange parenting time, and different ways to arrange it with sole or joint decision making.
Status quo is a term for the existing and historical relationships in a family. It is important in regards to decisions a court or judge might make related to parenting time and decision making, if there is no separation agreement or other written domestic contract.
So for example, if you have kids, and one parent has left the home, and there is no separation agreement or parenting time agreed to in writing, then the courts will look at the status quo (what has happened to date) to assist in determining parenting time etc. after separation.
Child support is the money that one parent pays to another to support their children financially after a separation or divorce.
You can find the calculators online. They are very simple and straightforward to use. You input the number of kids, where each child resides (which parent, or shared), what the income of each payor is, and it spits out a calculation. Family lawyers typically use line 150 (gross income) as a starting point, but not always, as there can be reasons to deviate from this.
Spousal support is money paid by one spouse to the other after they separate or divorce. It is sometimes called alimony or maintenance. The length of the spousal relationship comes into play, in addition to parties' incomes and child support.
There are two grounds for claiming spousal support: 1) it can be needs based (e.g., when one person’s income is higher than the other) and 2) it can also be compensatory (e.g., when joint family decisions meant one spouse stopped working to stay home with the kids while the other advanced in their career).
The distinction between the two grounds is important to talk to your lawyer about, because it affects how this support is adjusted and when it ends.
Section 7 expenses
These are children's expenses (like daycare you need so you can work, or the cost of kids’ extracurricular activities etc.). They are the expenses related to kids that go above and beyond what is covered by child support.
The law says both parents need to pay these expenses based on their income, so the amount is split proportionate to each spouse’s income. Also, if one spouse’s benefits covers any of these expenses, you are only sharing the out of pocket expense.
Many factors can shift what is considered a Section 7 expense, so it will depend on your situation, and a lawyer can help you navigate this.
This is related to dealing with family property in a marriage. If there is property, lawyers can help you with equalization of net family property. In Ontario, you’ll be asked to fill out a Financial Statement as part of calculating equalization.
And there are two very important dates for equalization: date of marriage and date of separation. So the law looks at all the assets and debts on the date of marriage, and all the assets and debts on the date of separation.
From there, there is a calculation for the growth of those assets and debts during marriage and each spouse gets a net family property number from that calculation. The numbers are compared, and if one person is higher than the other, to equalize family property, half the difference is paid from one spouse to the other.
This issue is treated differently for non-married spouses, so legal advice should be obtained regarding this issue.
Courts have the authority to determine a spouse’s income for the purposes of calculating child and spousal support. Income can be “imputed” (set) to a different value for either or both spouses.
So sometimes you or your lawyer can ask the courts to look at why one spouse doesn’t earn more income and impute an income if they have the ability to be earning more.
You should note however, that an imputed income is usually not agreed to by the spouse whose income is being questioned, and it is often litigated.
More resources for Family Law 101
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Financial Consumer Agency of Canada: Legal matters when you separate or divorce
Government of Ontario: Parenting time, decision-making responsibilities and contact
Justice Canada: Divorce and Separation: Where to Start