One of the more difficult choices to make when separating is deciding who will get to live in the matrimonial home, or what is otherwise known as exclusive possession. Both parties have likely developed an attachment to the home, and uprooting your life to move somewhere else can be a daunting and stressful experience.
So what exactly is exclusive possession? Does this mean a spouse now has ownership, legally known as title, of the home?
This is a common misconception regarding what exclusive possession actually is. Exclusive possession is the right of a spouse to possession of the home. In other words, the ability of a spouse to live in the home, while the other spouse has to live somewhere else. This right of possession is as against the spouse and not the home itself. This WILL NOT give you title or ownership of the home by itself.
It is important to note that Married spouses have a stronger claim than Common law spouses regarding exclusive possession of the home as a result of the provisions in the Family Law Act (“FLA”). The relevant provisions are replicated below:
19.(1) Both spouses have an equal right to possession of a matrimonial home.
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.
24.(1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(2) The court may, on motion, make a temporary or interim order under clause (1)(a), (b).
The court will of course have some considerations they will need to weigh when making the order for exclusive possession as per s. 24(1)(3) of the FLA:
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can be reasonably ascertained.
What kind of spouses are entitled to exclusive possession?
The FLA is clear that if a person is looking for an Order in Family Court for exclusive possession, they must fall within the meaning of spouse in s. 1(1) of the Family Law Act. Basically, you need to be married. See our post on Common Law vs. Marriage for more details.
This also means that you have to currently be a spouse of the other party to claim this remedy. Divorced parties are not entitled to this remedy as they are no longer a spouse, but a former spouse. So if you are separated, you can claim this remedy, but if you have a divorce certificate and you are legally divorced, you cannot claim this remedy. See our blog regarding Separation and Divorce for more info.
Common Law Spouses are similarly limited in their ability to utilize this remedy as they do not fall under the meaning of spouse in s. 1(1) of the FLA as described above. However, this does not mean common law spouses cannot claim exclusive possession at all. Common law spouses may be able to rely on the following:
- The common law spouse may have a trust claim towards the property that could result in an injunction, effectively allowing the spouse to remain in the home until the issue is resolved.
- Under s. 34(1)(d) of the FLA, possession of the home could act as a form of support payment.
- Under a restraining order under s. 46(1) of the FLA or s. 35(1) of the Children’s law Reform Act. In which case, the possession of the home would be an effect of the Order, rather that the purpose of the Order.
Proving the need for exclusive possession
Under these provisions, the person claiming exclusive possession needs to show that the evidence weighs heavily in their favour for the granting of the Order. In Chrobok v. Chrobok, 2006 CanLII 27308,  O.J. No. 3243 (S.C.J.), the wife claimed that she needed to remain in the home as it would be too traumatic for her children to move, and they were undergoing counselling at the time. Ultimately, the wife failed to prove her argument for exclusive possession as she did not provide any supporting evidence from her children’s counsellor to support her position.
As a warning, if you are actually granted exclusive possession, you may then have to pay rent towards your former spouse who had to move out of the home! Check back for future blog posts where I will discuss how this legal remedy works.
Information provided is for legal information purposes only and is not to be construed as legal advice.
 Perks v. Lazaris, 2016 ONSC 1356
 Perks v. Lazaris, 2016 ONSC 1356, para 27.
 Berdun v. Berdun, 2008 CanLII 23945,  O.J. No. 2016 (S.C.J.); McEachern v. McEachern,  O.J. No. 1544 (Gen.Div .); Tweed v. Tweed,  O.J. No. 1440 (H.C.).
Seems like something you should be able to do right? If an ex-spouse is talking to the children, or anyone else, some parents try to record those conversations to use against the other spouse later on in legal proceedings. What parents will need to be mindful of is that this may actually trigger parts of the Criminal Code (“CC”) regarding the invasion of privacy.
The part of the CC that is important here is s. 184(1) which states that:
184.(1) Every one who, by means of any electro-magnetic, acoustic, mechanical or other device, wilfully intercepts a private communication is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
This is further clarified by s. 184.5(1) which provides that s. 184(1) includes things such as cellphones:
184.5 (1) Every person who intercepts, by means of any electro-magnetic, acoustic, mechanical or other device, maliciously or for gain, a radio-based telephone communication (emphasis ours), if the originator of the communication or the person intended by the originator of the communication to receive it is in Canada, is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.
If the ex-spouse were to consent to the recording, then there would be no issue with the recording as per s. 184(2)(a) of the CC:
(2) Subsection (1) does not apply to
(a) a person who has the consent to intercept, express or implied, of the originator of the private communication or of the person intended by the originator thereof to receive it.
Parents usually do not get the consent of the ex-spouse to actually record conversations their conversations, so they resort to recording them secretly in order to try and get some dirt on the other spouse.
How do courts handle secretly recorded evidence?
In general, courts do not appreciate it when parents secretly record each other, then try to use that evidence against the other spouse in court proceedings.
However, even though the courts do not like to see this kind of evidence, it does not mean that they would not use it if it was important enough.
Justice Spence in Scarlett v. Farrell 2014 ONCJ 517 at para 31 provides us with a metric to go by; it will have to be determined if “the probative value [of the secretly recorded evidence] outweighs the policy considerations against such recordings, then the courts will admit them into evidence.” This means that if the courts find that the contents of the recording are important enough, the recording may actually be admitted into evidence for use against the spouse who was recorded, despite the fact that the recording was obtained illegally.
So how do we determine when a recording will be admitted into evidence? There must be a way for us to know that we can record the other spouse based on what they’re saying, especially when the safety of the child is at stake?
To use a tried and true legal expression: it depends.
The case law is split on this issue and again, this boils down to the specific facts of each case. Ultimately, the judges have to use their discretion when weighing all the evidence to make a determination.
There is a three-pronged test that we can use to help determine whether the evidence will be admitted as described in Matthews v. Matthews, 2007 BCSC 1825,  B.C.J. No. 2747 at para 70:
(i) There is a limited discretion to exclude relevant evidence, regardless of how it was obtained;
(ii) The judicial exercise of that discretion involves a balancing of competing interests; and
(iii) The court should consider whether the probative value of the evidence outweighs the prejudicial effect on the party opposite and/or the reputation of the administration of justice.
This provides a good starting point to understand how the law works on this issue. For more context, refer to the caselaw below regarding the admissibility of secretly recorded information:
Secretly recorded tapes admitted into evidence:
A.F. v. J.W. sub nom. Fiorito v. Wiggins, 2015 ONCA 729, var’g 2013 ONSC 4272.
- father secretly recorded conversations between himself and the mother during access exchanges
- recordings showed that mother was contraveining court order’s when she claimed she wasn’t
- court considered these recordings to go to the root of issue of whether or not the mother was continuing her emotional abuse of the children
- Justice Harper at para 56 said:
- “However, in far too many cases, like the matter before me, the goal of building of trust became masked by one party saying one thing in public and doing something very different when she thought the she was safe from scrutiny.”
D.M. v. C.W., 2017 ONSC 7070
- mother wanted to move to Pennsylvania,
- father made recordings during access exchanges
- father could not “cherry-pick” what court heard, court had to play entirety of all recordings
- court at para 38 found that:
- “audio recordings met the test for admissibility in that they were relevant to whether it would be in the best interests of the child to move with C.W. to Pennsylvania, more specifically, whether that proposed move would frustrate the positive access between the child and D.M.; that the probative value (or benefit) of the evidence outweighed its prejudicial effect (or cost)”
Secretly recorded tapes are NOT admitted as evidence:
Turk v. Turk, 2015 ONSC 3165,
- The wife’s conversations with the children were recorded without her knowledge, on phones that were provided to the children by the husband.
- The children were 21 and 17 years of age and neither were in need of protection from the court.
- Court found that the recordings were prejudicial to the wife and her ability to have a fair trial.
S.C. v. J.C., 2009 SKQB 87,  S.J. No. 121,
- Text messages accessed between mother and child
- Father had copied the text messages from his daughter’s phone while she was asleep.
- Court found that manner of obtaining relevant evidence does not affect whether it will be admissible or not.
- Court had difficulty determining reliability of evidence as there was no way of knowing whether messages represented the entirety of the communication between mother and child, or if they were taken out of context.
- Would be significant prejudice to administration of justice in family law proceedings if evidence of this kind was admitted regularly.
- Mother regularly texted daughter, admitting this evidence would hamper mother’s ability to text daughter and reduce daughter’s trust in Father.
- Court found that this result could be different if the daughter was at risk in some way.
Should you determine that your relationship is over and that you wish to get divorced, you will need to follow the process outlined below in order to officially terminate your marriage. If you are unsure about the nature of your relationship, take a look at our previous blog posts regarding Common law vs. Marriage and Separation and Divorce for a background regarding what is required in order to be eligible to get divorced.
Generally, the reason a divorce is granted is because two married persons have been separated for a year. However, you do not need to actually wait for a year of being separate before you can begin the divorce process. You will just have to wait until the year is up before a judge can grant you a Divorce Order. Be aware that if you reconcile the relationship for more than 90 days you will have to start the year separation period over again- (see separation and divorce article for more information). If you are getting divorced as a result of adultery or physical or mental abuse, then you do not need to wait for a year for the Divorce Order to be granted. However, you will need to provide documentation or other evidence to support your claim for adultery, physical or mental abuse as a reason for breakdown of marriage.
Both spouses do not need to agree to the divorce, either spouse can apply for it. However, if one spouse brings the application for divorce, the other spouse has the ability to contest it, see s. 8(1) of the Divorce Act (“DA”) and Rules 8 and 10 of the Family Law Rules .
One final thing to be mindful of is that judges will not grant a divorce if they believe that no reasonable arrangements have been made to support the children of the marriage, see s. 11(1)(b) of the DA.
Can I get Divorced if I’m not a Canadian Citizen?
Yes. Canadian citizenship is not a requirement for divorce in Canada. However, it is required that you or your spouse have been living in a Canadian Province for at least 1 year preceding the divorce, see s. 3(1) of the DA.
Things to Consider when Getting Divorced
Before getting divorced, it’s important to think about the following family matters:
- Custody and Access for children;
- Child and Spousal support;
- Property Division including things such as:
- Who gets the matrimonial home?
- How to split pensions;
- What happens to bank accounts?
- Who pays off any existing debts?
These issues can be dealt with in a separation agreement instead of through court which can save a lot of time and money. Judges will take separation agreements seriously and are unlikely to overturn items in the agreement unless there are deficiencies with the agreement or information was not disclosed (see our previous post on separation agreements for more information). Judges also have the ability to make decisions on the above noted matters before a divorce is finalized through Endorsements and Orders. It is best to speak to a lawyer regarding your rights and obligations to ensure that you are properly protected during the divorce process.
3 Different ways to Approach a Divorce
Depending on your particular circumstances, you have three options available to you should you wish to proceed with a divorce:
- General Application;
- This approach is taken when the parties cannot agree on how family matters should be resolved;
- Simple Application;
- You make this application where the ONLY THING you are claiming is a divorce;
- Joint Application;
- You can take this approach when both you and your ex spouse consent to a divorce and bring the application together;
- You can also bring a joint application where you both agree on all family matters.
What will I need to begin the Divorce Process?
This will depend on what type of application you bring. Different applications require different forms depending on your particular circumstances and what issues are contested between you and your ex spouse. It is highly advised that you speak with a lawyer to determine which forms you will need to ensure you are properly protected. See this link for a list of Family court documents that you can review – http://ontariocourtforms.on.ca/en/family-law-rules-forms/.
One document that you will have to have is you marriage certificate. If your marriage certificate is in another language you will have to get it translated. If your spouse is deceased you will need proof of death.
Documents you generally need for a Divorce include:
- Form 8 Application;
- Form 6B Affidavit of Service;
- Form 36A Affidavit of Divorce;
- Form 25A Divorce Order.
If there are outstanding family matters that need to be deal with, you might also need the following:
- Form 13 or 13.1 Financial Statements if support or property are contested;
- Support Deduction Order;
- Form 35.1 Child Custody and Access.
Is there a time limit for me to apply for a Divorce?
There are no time limits (what are called limitation periods) to apply for a divorce. Nor are there limitation periods to apply for child or spousal support. However, spousal support is based heavily on need; if you do not apply for spousal support for several years a judge may be inclined to see that you do not need support and may not grant it. Child support is the right of the child and courts will uphold this very strictly. See our posts on spousal support and child support for more info.
Also, there is no limitation period on custody and access applications. You must be mindful of something called the status quo however. Judges do not want to disrupt a child’s stable home environment and are less likely to change it if their current situation has been in place for some time.
There are limitation periods for an equalization payment (see previous post for more information). These limits under s. 7(3) of the Family Law Act are as follows:
An application regarding an equalization payment cannot be brought after:
- 2 years after day of Divorce of annulment;
- 6 years after separation and there is not prospect they will resume cohabiting;
- 6 months after death of a spouse.
Do I need a Lawyer in order to get Divorced?
No. You can bring the application yourself, or jointly with your spouse without the aid of a lawyer. However, it is always best to seek the counsel of a lawyer specializing in family law to ensure all your rights are protected, ESPECIALLY when there are a lot of issues between you and your ex spouse that you do not agree on. Lawyers have the expertise with the law and court procedure to ensure that the divorce can move ahead as smoothly as possible.
Even if it is a simply divorce, having a lawyer support your through the process can greatly reduce stress and complications.
When does the Divorce actually take effect?
31 days after the date on which judgment granting the divorce is rendered, see s. 12(1) of the DA. Generally, this means you have to:
- Start the application by filing and issuing appropriate documents for divorce;
- Serve other party and wait to see if they respond (minimum of 30 days after serving your ex spouse);
- File the affidavit for Divorce and Divorce Order for the Judgment if no response from your ex spouse;
- Wait for Judge to provide the Judgment granting Divorce and to sign the Order;
- Wait 31 days after the date of the signed Order.
This process usually takes a few months but can be much longer depending on how litigious both parties are. If you are granted the Divorce, s. 13 of the DA states that it is effective across all of Canada.
Furthermore, s. 12(7) of the DA states that the court must provide you with a Divorce certificate if you request it that can be effective as of a specified date.
Can I change the Divorce Order?
Once that 31 day period after the Order is signed by the Judge passes the Divorce is final. However, this does not mean that you cannot revisit certain items such as custody, access, or support. These items can always be changed should both parties consent to any changes or the court deems it just. This is because income can change, spouses may want to move or any other material change that may require a change to the arrangements in place at the time of divorce.
Contact our knowledgeable staff here at Rabideau Law to see how we can assist with any divorce or family law issues you may have.
Disclaimer: The above is for informational purposes only and does not serve as legal advice. Please speak to your lawyer to better assess your specific situation.
Equalization is a payment from one spouse to the other at the end of a marriage. This equalization payment ONLY applies to married spouses, not to common law spouses. S. 5(1) of the Family Law Act (“FLA“) provides for Equalization when:
- A divorce is granted;
- Marriage is declared a nullity;
- When (married) spouses are separated and there is no reasonable prospect they will resume cohabitation.
One thing I often hear clients ask is whether they have to split 50% of everything. While somewhat true, it is not entirely accurate. The real definition of division according to s. 5(1) of the FLA is as follows: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them”.
In simpler terms, separated spouses are entitled to 50% of the value of the marriage. So how is that value determined?
Marriage and Valuation Date
First we need to understand what Net Family Property (“NFP”) is and how to calculate it. S. 4(1) of the Family Law Act defines NFP as all property that a spouse owns on the valuation date (i.e. separation date) after deducting:
- Debts and other liabilities; and
- Value of property OTHER THAN A MATRIMONIAL HOME owned on date of marriage.
Therefore we have two dates that are important in determining equalization:
- The valuation date; and
- The date of marriage.
The date of marriage is simply the date you got married and does not include any cohabitation before marriage. Spousal support may factor in cohabitation periods before marriage however. See our post on spousal support for more info by clicking here.
The Valuation date is essentially the date the marriage ended, or the date the parties separated. It is defined under s. 4(1) of the FLA as:
- The date you separate;
- Date the divorce is granted;
- Date marriage is a nullity;
- Date one of the spouses commences an application based on improvident depletion that is subsequently granted; or
- Date before the date on which one of the spouses dies leaving the other spouse surviving.
Once we have those two dates, we can begin figuring out how much your Net Family Property (“NFP”) is.
Calculating Net Family Property for Equalization
When determining the Net Family Property (“NFP”) of persons who are ending their marriage, we need to look at two important dates: the marriage date and the valuation date.
Let’s pick two dates to help figure out the NFP:
- Jane and John married on October 1, 2010;
- Separated on February 1, 2018.
That’s almost 8 years of marriage. You’ll see here that February 1, 2018 is the date of separation, which fits under the definition of Valuation date in s. 4(1) of the FLA.
Now, we take the value of all assets that both parties own on the valuation date, subtract their debts owned at valuation, and finally subtract the value of any property owned on the marriage date.
|John’s Assets on Valuation Date||Car – $25,000
Personal Bank Account – $3,000
$4,000 in Joint account with Jane (50%) – $2,000
Investment Account ending in 1010 – $170,000
Total = $200,000
|John’s Debts on Valuation Date||Loan from Friend – $50,000
Total = $50,000
|Property Owned at Marriage||Investment Account ending in 1010 – $100,000
Total = $100,000
|Calculate Final Total
– Property at marriage
|Jane’s Assets on Valuation Date||Car – $20,000
Personal Bank Account – $2,000
$4,000 in Joint account with John (50%) – $2,000
RRSP – $6,000
Matrimonial Home – $320,000
Total = $350,000
|Jane’s Debts on Valuation Date||Line of Credit – $50,000
Mortgage – $100,000
Total = $150,000
|Property Owned at Marriage||Matrimonial Home – $220,000
Total = $220,000
|Calculate final total:
– Property at marriage
can’t subtract Mat Home
So, something interesting happened here. Jane’s name is the only one on title to the home and it was valued at $220,000 when they got married. She should be able to deduct that home from the valuation date value right?
Remember, you subtract property owned at the date of marriage from your valuation date EXCEPT for the matrimonial home. So Jane has to include the entire value of the home regardless of how much it was worth at marriage.
We’re almost there. The language of the equalization rule is: “the spouse whose net family property is the lesser of the two net family properties is entitled to a one-half difference between them.”
– John’s NFP
|Difference divided by 2||$150,000/2|
|Equalization Payment or, the one half difference||$75,000|
In this instance John, who is the lesser of the two net family properties, is entitled to the one half difference between them, $75,000.
Therefore Jane makes an equalization payment of $75,000 to John. With that, John would have $125,000 and Jane would have $125,000. They are equalized.
You also have the ability to exclude other property on the valuation date other than just debts under S. 4(2) of the Family Law Act.
These include things such as:
- Property acquired by gift or inheritance after marriage date
- Income from property that was gifted or inherited if donor EXPRESSLY stated it is to be excluded from NFP
- Damages from a settlement resulting from personal injuries, nervous shock, mental distress, or loss of guidance care and companionship
- Proceeds or right to proceeds of life insurance policy payable on death of insured
- Property OTHER THAN MATRIMONIAL HOME into which property above can be traced
- Property both spouses agree not to include as a result of a domestic contract (see our post on separation agreements for more info)
- Unadjusted pensionable earnings under Canada Pension Plan
If you’re thinking of separating and want help to ensure you are properly protected, contact Rabideau Law to see how we may assist.
Spousal support is often a very contentious issue on separation as it has a much more subjective approach than child support. A lot more factors go into determining a spousal support amount and there is no hard and fast rule on how it is to be calculated. The government has provided a set of guidelines called the Spousal Support Advisory Guidelines (“SSAG”), but not even this is followed strictly. Sometimes a judge may just pick a number they feel is appropriate having looked at all the factors.
What will follow is an overview on how spousal support is generally approached via the SSAG so that you have a good background on the general principles behind its calculation.
Please keep in mind that the following examples are not accurate calculations but approximations for educational purposes.
With Child Support Formula
With this formula, you look at the following factors:
- Gross income
- Child support being paid
- 7 expenses being paid
- Taxes and other deductions
- Government Benefits and credits
- Length of the marriage and/or cohabitation
- Age of children
- Recipient needs
- Ability of payor to pay
What we need to do is look at the amount that should be paid and how long it should be paid. When calculating spousal support you usually come up with a range and determine where in that range you should fall.
Step 1: Calculating the spousal support amount
Start by determining your gross income, which is your income before taxes and other deductions are applied. Then you subtract child support (or add it if you are the recipient), taxes and other deductions. Finally, you add back any government benefits and credits that may apply. This initial calculation will provide you with your Individual Net Disposable Income (“INDI”). See the example below for a couple with 2 children who cohabited for 2 years before being married for 10 years.
|Malik’s Monthly Gross income||$125,000/12
|Child support for 2 children in Ontario (see post on child support for information on how to determine child support)||$1,777|
|Taxes paid ~30%||$10,417*30% = $3,125|
|Malik’s INDI Calculation
Monthly Gross income
(No benefits or credits to apply)
Malik has an INDI of $5,515. Next we move on to the recipient, a similar formula with a little bit of a difference.
|Nubia’s Monthly Gross income||$50,000/12
|Child support received||$1,777|
|Taxes paid ~20%||$4,167 * 20% = $833|
|Nubia’s INDI Calculation
Monthly Gross income
+ Child support
+ Benefits and Credits
With both INDI’s known we add them together: $5,515 + $5,762 = $11,277 total
Since Nubia has both children living with her, Malik pays spousal support that would put Nubia within the 54-60% range of the total (note: this number changes depending on how many children are living with the recipient, if it was only one child the recipient might receive anywhere from 45-50% of the combined INDI). For example:
- Nubia is the recipient
- 54-60% of $11,277 = $6,089 to $6,766
We now subtract Nubia’s INDI from these amounts to see what spousal support could be paid:
- $6,089 – $5,762 = $327
- $6,766 – $5,762 = $1,004
Nubia’s spousal support could then range from $327 to $1,004 monthly in order to bring her to that 54-60% share. We use the factors mentioned above to determine where in that range she should fall and this is done on a case by case basis with need being one of the most important factors.
How long is spousal support supposed to be paid?
The upper part of the range is the length of the marriage or the date the last or youngest child finishes high school; the lower range is half the length of the marriage or the date the youngest child starts full time school. Generally, only the length of the relationship is used and I will continue with that in mind. We could simplify as follows: length of marriage * 0.5-1. For Nubia and Malik’s relationship of 12 years, that would be a range from 6-12 years.
All this does is give us another set of ranges to make a decision with. So how do we know WHERE within the range we should ultimately be?
There are multiple factors that are considered to determine where to fall within the range. These can include:
- Compensatory claims
- The recipient needs (limited income earning capacity or age a factor here)
- Age, number, needs and standards of living children. Are there any special needs?
- Needs and ability to pay of Payor
- Consider meaningful access by Payor
- Work incentives for Payor
- Consider net income and out of pocket costs
- Property division and debts
- Self-sufficiency incentives
- Compelling Financial Circumstances
- Debt payment – used where negative net worth and one spouse paying disproportionate share
- Prior support obligations
- Illness and Disability
For example, if there are no special needs of the children, Malik has no concerns regarding his ability to pay, he has no other support obligations, and Nubia has no significant need for the money, Nubia would likely receive the lower end of support being 6 years. Again, this is all hypothetical and each situation can vary. Also, there are different formulas depending on whether there is shared custody, split custody, step children, adult children and more.
Without Child Support Formula
This is similar to the with child formula as you start with the same values. How you calculate the actual payment is different though. The range here is 1.5-2%, times the income difference between the spouse’s gross income, times the years of cohabitation to a maximum of 50% of that income difference.
Here is what that looks like:
|Malik’s Gross income||$10,417|
|Nubia’s Gross Income||$4,167|
|Years of cohabitation||2 years cohabited
10 years married
12 years total cohabitation
Notice here we do not subtract any taxes or any other deductions here. We now have the numbers we need in order to perform the next step of the calculation (note that this is just one method of doing the calculation):
- Convert the percentages into decimals: 1.5% = 0.015 and 2% = 0.02
- Multiply these decimals by the difference in income
- 0.015 * $6,250 = $94
- 0.02 * $6,250 = $125
- Finally, multiply these final numbers by the years of cohabitation:
- 94 * 12 = $1128
- 125 * 12 = $1500
This gives you a range of spousal support to be paid from $1128 to $1500 monthly. Alternatively, you could multiply 1.5-2% by the years of cohabitation then just multiply those numbers by the income difference and you would reach the same result.
Isn’t math fun?
Is the duration or payment different with this formula?
Somewhat. The duration is 0.5 to 1 for each year of cohabitation only (no child factors to consider here). Duration is indefinite if the marriage is 20 years or longer, OR if the marriage lasted 5 years or longer when years of marriage and age of support recipient at separation total 65 or more.
So in our example the range is from 6 years to 12 years of support payments.
Otherwise the same factors mentioned above that can affect the duration of support can apply here as well.
Is there a deadline to Apply for Spousal Support?
Under s. 16(1)(c) of the Limitation Act, there is no deadline (or limitation period) to apply for spousal support. However, need is a prominent factor in determining how much support to award. If a spouse waits too long and a court deems that they are financially stable enough to not need support, it may not be awarded at all.
If you have any questions or concerns regarding support in your circumstances, give the experts at Rabideau Law a call to see how we can help.
What follows below will be a general overview of the process for completing a separation agreement. It begins by contacting our office and concludes with the completed separation agreement that is provided to the client.
Please note that this is not a precise account of how the process works, but merely a general guideline. Each situation is unique. Furthermore, different types of agreements and different types of retainers with our firm necessitate varying approaches to this process. Keep in mind that this process is not limited to just separation agreements, but can be applied to any kind of domestic contracts such as a cohabitation agreement or a marriage contract (and/or a prenup).
Step 1 – Initial Contact: A potential client contacts our firm by phone, email or in person, and we arrange an in office meeting with one of our lawyers for a consultation (click here if you would like to book a consultation, hyperlink to relevant part of website).
Step 2 – The Consultation: The potential client brings any relevant documents to the consultation so that we can determine what may be the best legal solution to their legal problem. This consultation is an information session, and we are not hired at this stage to represent the potential client.
Step 3 – The Retainer (aka the Contract): If the potential client wishes to draft a separation agreement, we will draft a formal retainer (i.e. contract between you and the lawyer) that must be signed by the client and our firm before we begin any work. This document covers the type of legal services that the firm would provide to you.
Step 4 – Gathering Info: Once the retainer is signed by the potential client and our firm, that potential client is now our client. We provide the client with a questionnaire that asks them to provide as much information as possible including things such as their finances, children, employment, assets and debts.
Step 5 – Drafting the Agreement: After the questionnaire is complete, the client provides it to our firm and we use that information to draft a separation agreement. This can also include drafting financial statements. We take this time to include the details from your questionnaire into the agreement, and include any specific terms or conditions that may have been discussed. During this stage we may ask you for more information in order to effectively include all necessary items.
Step 6 – Reviewing the First Draft: Once the first draft is completed, we contact the client to review the agreement with them to see if any other provisions need to be included or removed. This is to ensure that the agreement matches the client’s intentions and wishes.
Step 7 – Opposing Party Review and Negotiation: Once the first draft is approved by the client, we send a copy of the draft to the other spouse’s lawyer for them to review. If any terms need to be adjusted, we contact the other lawyer to negotiate until all parties agree to the terms and conditions of the separation agreement.
Step 8 – Final Review and Execution: Once everyone is in agreement, we create a final draft copy of the agreement for your review. We arrange a meeting where you attend our office and we review the final draft of the agreement in detail. Should everything be in order, we execute the agreement by having you sign the agreement with a witness and date your signature. This is done on multiple copies of the agreement, usually one for each party and one for each lawyer totalling 4 copies. Once executed, the lawyer at our firm will sign an Independent Legal Advice Certificate (“ILA Certificate”).
Step 9 – Completion: We then provide all signed copies to the opposing party for them to sign, witness and date, and for their lawyer to also provide an ILA Certificate. Once that is done, they mail two completed copies back to us and we provide the client with one completed separation agreement completing the process.
Typically this process takes about 2-3 weeks to complete. This timeline is dependent on how much negotiation needs to take place in order to resolve all outstanding issues. However, negotiating the details of your separation outside of court is a faster, simpler, and more cost-effective means of dealing with issues.
Should your spouse provide you with an agreement, we can discuss providing Independent Legal Advice services for you. This would essentially reverse the roles of the parties in the process outlined above.
If you are looking to get a domestic contract drafted, feel free to contact our firm to see what legal services may be best suited to your particular needs.
What is a separation agreement?
Separation agreements are contracts between two persons in a romantic relationship regarding their familial rights and obligations towards each other. These types of agreements allow people to negotiate issues such as how children will be taken care of, what kind of support will be paid between the spouses, and how to distribute assets such as the home. Once the issues are identified and agreed upon, the separation agreement can provide certainty and peace of mind for both parties as they move on from the relationship.
Do I need a separation agreement to get divorced or get separated?
If you are married, (if you aren’t married skip on to the next paragraph) you don’t actually NEED a separation agreement in order to get divorced or to separate from your spouse. The Divorce Act requires that there be a “breakdown of the marriage”. This means that:
- you live separate and apart for one year;
- the other spouse has committed adultery; or
- one spouse has treated the other with physical or mental cruelty.
If you aren’t married, all that is required is that you live separate and apart. However, what that means can be complicated depending on your circumstances.
Regardless of how you and your spouse (partner, husband, wife, boyfriend, girlfriend etc) broke up, getting a separation agreement can help both parties negotiate and finalize matters between them without involving costly and lengthy court proceedings.
We’re working well together, why bother with an agreement?
Although you and your spouse are cooperating well at this point, there is no telling how well you two will work together in the future. If something happens in the future where the other person suddenly refuses to work with you, and the both of you do not have an agreement in place, there could be severe consequences regarding your ability to see your children, how support payments will be made, or how assets should be redistributed. The best thing to do is to ensure that both of you are on the same page by drafting an agreement outlining your rights and responsibilities so you won’t be faced with any unpleasant surprises in the future.
Why can’t I just download an existing agreement and draft it myself?
You can. Nothing prevents you from drafting a separation agreement that both you and your spouse sign together. However, this is an agreement that will bind the both of you into the foreseeable future. You want to make sure that all angles are covered and that you did not omit something or improperly word something that could have serious repercussions for you in the future. There is no guarantee that the online agreements out there are up to date or that they have the appropriate clauses to protect you especially if your ex tries to challenge or have it set aside in court. Having a lawyer draft the agreement for you is the best way to ensure that all important issues are covered, that everything is current to today’s laws in your jurisdiction, that the law surrounding those issues regarding your rights and obligations are explained to you, and that the agreement is executed properly.
Can I only get an agreement at separation?
No. There are multiple types of “Domestic Contracts” under the Family Law Act. Other types of agreements include:
- a cohabitation agreement if you are cohabiting (living) with another person and are not married;
- a marriage contract if you are getting married (colloquially known as a pre-nup); or
- a marriage contract after you get married (colloquially known as a post-nup).
Be mindful that there are certain issues (eg. Access to children) that cannot be addressed in these other types of agreements. Feel free to contact our firm to see what agreement may be best for you.
What are the best reasons for hiring a lawyer to draft an agreement?
One of the biggest concerns for separating spouses is how the children will be taken care of. The agreement can help both parties create a stable and effective parenting plan for how decisions will be made for the children such as residence, school, health care, religion and education. The agreement can also help set out a visitation and/or time sharing schedule for the parents to follow.
Another major concern for spouses at separation is the family home. Usually, this is the largest asset that both parties have during the relationship, and a separation agreement can go a long way to outlining who is getting the home, or how the home is to be sold and distributed between the two of you. Also, if one of you is looking to purchase a new property after separation, mortgage companies will usually ask for an agreement between the two of you before they are willing to provide a mortgage for the new property.
Other assets that can be dealt with in agreements can include: joint bank accounts, debts, pensions, RRSP’s (Registered Retirement Savings Plans), pets, cars, and life insurance.
How do I make sure the agreement is enforceable?
Ensure that it is signed, written, and witnessed.
Ensure that you are well educated on: what the law is, the legal meaning and consequences of the agreement terms and the assets and debts of both parties. Hiring a lawyer to draft the Agreement and/or provide you with independent legal advice (“ILA”) provides this assurance.
ILA is provided when one party has their own lawyer review and explain the agreement to them. This helps to ensure that the party understands the rights and obligations they are agreeing to. The lawyer then signs an “ILA Certificate” stating that they reviewed the agreement with their client, that their client has not been forced into the agreement, and that they believe their client understands it.
Another common addition to agreements is a sworn financial statement. Sworn financial statements outline things such as the parties’ income, their monthly spending, and their assets and debts. Having this financial picture helps clearly identify the financial situation of both parties so that there is no confusion regarding either party’s assets.
Having both ILA and sworn financial statements in your agreement goes a long way to ensuring that the agreement won’t be overturned by a Court in the future (if it ever ends up that) and that you have a strong shield to protect you should anything be challenged.
Finally, you can look at separation agreements as a ”living document” meaning that it should grow and change as your financial and/or family situation changes. It’s a good idea to review it every few years to ensure that the terms of the agreement still say what you want them to say.
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