Categories
Family Law Marriage Contracts

What is a separation agreement ?

What is a separation agreement ?

A separation agreement is a legally binding contract created between two spouses, at the time of their separation. This contract sets out each party’s rights on issues such as: child custody/access, property, debts and child / spousal support. The law leaves the decision about having a written agreement up to each individual couple. However, it is always strongly recommended as it can be very hard to prove any verbal agreements made by a couple, in a court of law.

Ideally, it is best to have separation agreements drafted by a lawyer. It is not a rule that separation agreements must be drafted by a lawyer, and couples are entitled to draft their own agreements. Should you choose to create your own separation agreement it is important to check all your provincial requirements so that you know how to successfully write an agreement that will be binding and enforceable by the courts. It can be very difficult and costly to fight for unclear written agreements in court, should one spouse stop respecting the terms of your arrangement.

Drafting your Separation Agreement

There are many issues that need to be considered when creating a separation agreement. Separation agreements are treated seriously by the courts and any terms that are clearly unreasonable will not be accepted. It is important to note that judges will not usually change any property divisions or spousal support terms agreed to in writing, even if it is something they wouldn’t have set themselves. Due to this, it is important that you are fully educated about all your legal rights and are completely comfortable and confident before signing a separation agreement.

In the event that you and your spouse cannot agree on some or all of the items in a separation agreement, you can contact a mediator or retain separate lawyers in order to help you resolve your differences.

Important items needed in a Canadian separation agreement:

  1. Full Legal name of each spouse
  2. Date of separation
  3. Issues surrounding Children:
    • Who will they live with?
    • Who will have custody?
    • Who will have access, and how will access be determined?
    • How much child support will be paid?
    • When will child support end?
  4. Spousal support:
    • Will spousal support be paid. If so, how much, when and for how long?
    • If support is waived, is it waived forever?
  5. Property division:
    •  A clear list dividing who is to get which items and when.
    • If you own a house you need to outline:
      • Will be sold?
      • Who is responsible for it until it is sold?
      • Who will live in it until it is sold?
      • How proceeds from the sale will be divided?
  6. Debts:
    • Who will be responsible for which debts?
    • How debts incurred after separation, but before divorce will be handled.
  7. Pensions, RRSPs, RESPs, etc:
    •  Will you split your pensions and/or RRSPs?
    • If you have RESPs, who will be entitled to permitted transfers?

Signing a separation agreement is a very important step. It is important to remember that the decisions that you make in this document will affect you, and your children’s lives and future. A separation agreement is a binding contract that you must honour and quite often it is used as the basis for your actual divorce. It is always best to have separation agreements created by a lawyer, or at least reviewed by one before it is signed. Always ensure you carefully consider everything on the agreement before agreeing to it, and then signing.

Categories
Family Law Marriage Contracts

Marriage contracts / Pre-nups in Canada

Marriage Contract / Pre-nups

If spouses separate and divorce without a marriage contract, their property will normally be allocated according to the laws of Ontario. The laws are complex but, in general terms, they require an equalization of the net family property of the parties ordinarily calculated at the date of separation. The spouses calculate the increase in their net worth since marriage and equalize the difference. There is an exemption for the “value” of property calculated at the date of the marriage in respect of most property. Essentially, the property owned by each spouse at the date of marriage is given a dollar value based on its worth at the date of marriage. The dollar value at the date of marriage is then subtracted from the value of each spouse’s total property at the date of separation.

However, in advance of the marriage, or before separation, couples can enter into a marriage contract – often referred to as a pre-nup – to decide for themselves how their property will be affected. A marriage contract may also deal with other matters such as spousal support.

A marriage contract must be in writing and can be made by a married couple or by those who are planning to get married. The main purpose of a marriage contract is to set out what will happen financially if a couple separates rather than their being bound by the terms of the Family Law Act. There are some restrictions on the right to contract in family matters. For the most part, these restrictions arise in respect of children of the marriage and possession of the matrimonial residence.

 

Why enter into a marriage contract?

There are generally three reasons why a couple may decide to have a marriage contract. First, a spouse who is substantially wealthy or has an asset base that is increasing in value, may wish to avoid having to account for any increase in wealth on marriage breakdown. When a person has a great deal of money, or expects to receive a lot of money in the future, he or she may want to make sure that any increase in net worth will not need to be equalized. Specific assets can be protected such as pensions or real estate and can be kept intact if the marriage fails.

Second, a marriage contract can be used to establish arrangements in advance for financial support if the relationship ends. For example, one spouse may want to make sure that the other spouse will provide adequate spousal support or child support if the relationship ends. Alternatively, the other spouse may wish to limit the amount and duration of any support paid. Income tax obligations may be a concern that can be addressed in respect of spousal support. Either way, spouses can come to an agreement about support while they are still on friendly terms.

Third, a marriage contract can be used to make arrangements for dividing property and money earned during the marriage or to make special arrangements about particular matters such as partnerships or corporations in which one or both may have an interest. Again, this allows couples to decide on a division of property different from that provided by the Family Law Act and to reach an agreement while they are on good terms.

 

Limits on marriage contracts

Although spouses can make any kind of financial arrangements in a marriage contract, a marriage contract cannot make any rules about which spouse will get custody of children, or which spouse will have access to children. Also, a marriage contract cannot put any limits on the rights of a spouse to live in the matrimonial home.

 

Requirements for a legally binding marriage contract

To create a legally binding marriage contract, both spouses must be completely open and honest about their financial situation. This requires a detailed disclosure of their significant assets and liabilities. The contract must be in writing and signed by each party in the presence of a witness. The contract must be entered into voluntarily and not under any duress, and each party must understand the contract.

It is in the interest of both parties that each of them receives independent legal advice. Some aspects of the contract may eventually be subjected to judicial review and in certain areas, particularly where the rights of children are involved, the terms of the contract can be overridden.

While it is the policy of the courts to uphold marriage contracts, practically speaking, it is a good idea that one-sided contracts be avoided. Unfair contracts may tend to create resentments that can contribute to marriage breakdown. Unfair contracts also encourage litigation on marriage breakdown which is the very thing that they are supposed to avoid. Although a marriage contract becomes legally binding once it is signed, the parties can change the terms by further agreement at any time.

 

Getting legal advice for Marriage Contracts

A marriage contract is an important legal document and it is important to get legal advice for several reasons:

  1. A lawyer can tell you what rights you normally have under the law and what rights you may be giving up by signing a marriage contract.
  2. Your contract will be stronger if you and your spouse each consult a different lawyer before signing it. This will prevent one spouse from later saying that they did not understand what they were agreeing to in the contract.
  3. A lawyer can ensure that the contract is clear and complete. While the failure of a marriage is rarely pleasant for either spouse, a clear and fair marriage contract may make the separation much easier. Since most of the consequences of a marriage contract will only come into play if there is marriage breakdown, once you and your future spouse have signed a marriage contract, put it away and get on with your marriage.

 

Our recommendation is that …

when ever you need any consultant , you just need to call us . you can Contact Us always with the number : +1(647) 464-0332

Our services in ThornhillMarkhamVaughanNorth YorkScarborough neighborhoods of Ontario functions are available to you dear ones. You can contact us at any time and receive the necessary counseling and advocacy services.

Categories
Family Law

Who gets the house in a divorce in Canada?

Who gets the house in a

divorce

in Canada ?

Our recommendation is that …

when ever you need any consultant , you just need to call us . you can Contact Us always with the number : +1(647) 464-0332

Our services in ThornhillMarkhamVaughanNorth YorkScarborough neighborhoods of Ontario functions are available to you dear ones. You can contact us at any time and receive the necessary counseling and advocacy services.

Categories
Family Law

What makes a parent unfit in filed of Child Custody

What makes a parent unfit in Canada ?

Custody disputes can be the most challenging part of a divorce or breakup.  Both parents will want as much time as possible with their child or children. When determining custody the court will always make a decision on what is in the child’s best interest.  No parent is perfect so little imperfections will not strip a parent of their rights, however, being an unfit parent will cause the court to reduce or limit the interaction between that parent and the child or children.

What exactly is an unfit parent? The legal definition of an unfit parent is when the parent through their conduct fails to provide proper guidance, care, or support. Also, if there is abuse, neglect, or substance abuse issues, that parent will be deemed unfit. Most cases where a parent is deemed unfit, Child Welfare Services has been involved and there may be a safety plan or an open active investigation against the parent.

During a divorce, parents might not agree on custody issues, or one parent might not trust the other with the children. On the order of a judge or at the request of a parent, a child custody evaluation may be held. The purpose is to determine if allowing one or both parents custody is in the child’s best interest, or if the child’s health, safety, and welfare are at risk. The evaluator will consider the following ten factors when making a determination.

 

1. Setting Age-Appropriate Limits

  • Is a 5 year old child allowed to watch R-rated movies on a regular basis?
  • What kind of curfew does the parent set for a teenager?

Parents will not always agree about what is age appropriate limitations, but when you have one parent who is allowing extreme situations, this may be a red flag.  When parents share joint legal custody, they should jointly make decisions about what is age appropriate but this does not include little things such as bed time.  This is when co-parenting comes into play and you have to trust your co-parent is making appropriate decisions in their household.

 

2. Understanding and Responding to the Child’s Needs

  • How sensitive is the parent to the child’s needs?
  • Does the parent try to communicate in a way the child can understand?
  • How responsive is the parent to the child?

A child needs to feel heard and cared for by both parents. Navigating two separate households is just as challenging for the child as it is for the parents.  It is important the child feels they can communicate the same regardless of which house they are at.  If there seems to be a disconnect, is a parent responding appropriate and obtaining help when it is necessary?  These are all important characteristics of a strong relationship.

3. History of Childcare Involvement

  • Does the parent have a good track record of looking after the child’s welfare?
  • Has the parent relied excessively on the other parent to take care of the child?

Both parents should have reliable childcare and all information should be shared.  Also, both parents should be able to take care of the child on their own without any help.  If they are constantly relying on assistance whether it be from the co-parent or from other family members, that may be a red flag that a change in custody is necessary.

4. Methods for Resolving the Custody Conflict with the Other Parent

  • How reasonable and cooperative has the parent been throughout the divorce?
  • Has the parent refused to compromise or communicate?

Co-parenting is hard! It takes a lot of work to have a positive relationship with your co-parent, but it does take two.  If one parent is constantly belittling the other or if every decision is an argument, your child will feel this.  A lack of positive decision making and working together can be a basis to change custody giving one parent the decision making power.

5. Child Abuse

  • Does the parent have a history of child abuse with this or any other child?
  • What is the current situation?

If Child Welfare Services has been involved in a parent’s household a lot, this could be a sign that custody needs to change.  Child Welfare Services may have done a thorough investigation into a household to make a determination on whether abuse or neglect should be substantiated or not.  If they have a concern they will issue an immediate safety plan which you can bring into court to obtain emergency custody orders.  Child Welfare Services Involvement is not always a sign as sometimes the case is closed without investigation, but it is an important sign to look out for.

6. Domestic Violence

  • Has the parent been physically or emotionally abusive to the other parent?
  • Has the child witnessed this?

It is never okay for a child to be a percipient witness to domestic violence.  It is also never okay for one parent to be abusive to the other parent.  You have resources available to you which include a domestic violence restraining order, counseling for the perpetrator, domestic violence classes, or just a change to the custody order to reduce interactions.

Categories
Family Law

What percentage of fathers get full custody in #Canada?

What percentage of fathers get full custody in Canada?

Father Rights Child Custody Canada. To be honest, only 7% of children are given in custody of their father. And about 80 percent are under the charge of their mother.

To be honest, only 7% of children are given in custody of their father. And about 80 percent are under the charge of their mother. This report is authentic and provided by the “Department of Justice.”

However, it is most commonly seen that the children who are less than 12 years old are given to their mother, and the children who are above 12 years old are given to their father. In short, if the child is younger, he/she will be given to the mother to nurture well.

 

Our recommendation is that …

when ever you need any consultant , you just need to call us . you can Contact Us always with the number : +1(647) 464-0332

Our services in ThornhillMarkhamVaughanNorth YorkScarborough neighborhoods of Ontario functions are available to you dear ones. You can contact us at any time and receive the necessary counseling and advocacy services.

Categories
Family Law

Courts Decide about Child Custody

Child Custody

In the confusion of divorce, most parents never consider the issue of Child Custody beforehand. Often communication between the spouses has broken down and both parents presume their assumptions about child custody to be accepted by the other parent. Often this is not the case. As a result, many divorcing parents find themselves confused and surprised by the prospect of child custody issues in divorce.

The greatest misconception is that the primary caretaker is the presumed de-facto custodial parent. So, most parents who take the lead role in providing for the child in marriage simply assume that the law will recognize this role by giving him or her primary custody after divorce. Historical care, however, does not automatically guarantee child custody. If you have filed for a divorce and your ex has gone ahead and obtained a legal order to take custody of your child – the child can be legally taken away from you despite any caretaking role you may have had in your child’s life. As a result, unprepared divorcing parents often find themselves in a position in which they don’t have the legal right to make any important decisions regarding their child – on issues such as education, religion and medical treatment.

 

Courts Decide about Child Custody

According to Canadian law, until courts decide otherwise, both parents have equal rights of custody to any and all children. Cutting through the legalese, what that means is: get the courts to grant you custody – only then you are safe against any counter motions by your spouse. In order to navigate the courts, however, you need to educate yourself about Canadian custody battles to ensure that you, and not your ex, manage to convince the courts to give custody of your child to you.

 

A Child’s Best Interest

In Canada, as in many other countries, courts focus on only one issue in child custody cases: they decide what in their view would be in the child’s best interests and grant custody accordingly. This is a somewhat vague standard as you may imagine, and as a consequence it will serve you well to understand the underlying factors which will influence a court in reaching a decision regarding the best interest of a child.

  • each parent’s ability to provide for the child’s needs both financially and emotionally,
  • the relationship each parent has with the child,
  • your child’s wishes, if he or she is of an age of maturity to convey to the court their wishes,
  • if you have more than one child, the court normally prefers to keep them together
  • the court will try to minimize the disruption of the child’s life (the status quo),
  • who the primary caregiver of the child was during the marriage,
  • time available to spend with the children (working hours, out of town trips),
  • one parent’s interference with the other parent’s relationship with the children,
  • any special needs of the child.

 

Common Presumptions of the Courts

The portrait painted above indicates that there are a great many factors which a court will use to determine the best interest of a child. That said, however, there are three cardinal rules that generally prevail for most courts:

1) Stay at home mother: A devoted stay at home mom almost always gains custody of the child over a working husband. This presumption is based upon the fact that, especially for young children, the court likes to place children in an environment where the parent is certain to be around often.

2) Established status quo: If either party has, for all practical purposes, already taken control of the child after separation but before any official declaration by the courts, the judge will typically interpret the current living arrangement as the default arrangement and all things being equal will uphold it.

3) Primary caregiver: If you can establish that you have been the primary care giver for a child then the law will typically presume that you are best situated to care for the child in the future and as a result grant you custody.

Open chat