The following questions and answers are for general informational purposes only and are not intended to be considered legal advice in any way, whatsoever. These answers are not legal advice and do not constitute a legal opinion. If you find yourself in the middle of a family law dispute with your partner, contact a family lawyer as soon as possible to discuss your situation and how to proceed.
Custody ultimately has to do with decision making abilities over your child. For example, the parent who has custody over their child is the one who has the power and authority to make important decisions about the child, such as medical, educational and religious instruction. The child may not necessarily be residing full time with the custodial parent. Parents who have joint-custody make decisions together. With joint custody, parents make the important decisions together/jointly regarding the welfare of the child – they share it. For joint custody to work, parents have to be able to communicate with each other and to co-operate with each other even though they are not living together and no longer in a relationship. Please note that there can be many variations of custody and joint-custody as well, depending on what the parties agree on. For example, there could be a clause in an agreement that provides for joint decision making over a child(ren) but in the case of a disagreement, one parent has the final say; however, if the opposing party is not happy s/he has the option to bring the matter before a mediator or a family court within a certain time frame.
If you do not have custody of your children, you have a right to spend time with them (subject to any concerns raised against you). Typically, an access parent sees the child overnight every other weekend and one evening a week during the week. It is also typical for the access parent to have telephone access and other important holidays (i.e., Father’s day, birthdays, holidays, etc.). An access parent also typically has access to the child 2-3 weeks during the summer. Access parents also have the right to receive information about the child’s health, education and general situation. In cases where a court believes that there are safety concerns regarding a parent’s access, supervised access may be ordered. In such a case, a parent will visit with their child at an access centre under full or partial supervision. In such cases, the hope is for the parent to do well and “prove themselves” during access visits (which are documented in most cases) and for the access to eventually become unsupervised. Other forms of supervision can be in the community with a 3rd party supervisor that everyone agrees to.
A family law case can take anywhere from a few weeks to many years to come to an end. Even when a family law case ends, it ends many times only to be restarted the next day, week, month or year, when a party does not seem to be following an order or a material change in circumstances arises. Family law cases can be exceptionally draining in that they are highly emotional, lengthy, hostile, gut-wrenching and expensive. Avi Baratz always encourages settlement and resolution in family law cases in order to create order and alleviate these draining aspects as quick as possible. Some family cases are more complex than others which contribute to the length of time; others are more litigious and high conflict. The age of the child(ren) at the time of the commencement of the dispute also contributes to the length in time of the family law case – those cases with very young children can drag on for years until the child(ren) becomes of age. Even in cases that settle quickly, it’s usually impossible to know whether a party will raise a new issue or bring the matter back to court. In effect, one can never be sure if they are at the “end” when one finds themselves tangled up in a family law dispute. In our counsel’s experience however, many cases do “end” in that the parties have both come to terms with their separation and have settled their affairs in an orderly fashion.
In most cases the access parent has to pay monthly child support as the custodial parent likely has the child living with him/her full time and as a result, has incurred increased expenses. If the primary caregiver seeks child support then there are standard child support guidelines that are based upon the number of children (for whom support is payable) and the income of the payer/access parent. These guidelines for child support are known as the “table amount”. The table amount is predetermined and there is no room for scaling back the amount payable. That is to say, there is no wiggle room for discretion here. In some cases a payer of child support can argue that given his/her difficult financial or other situation such as a disability, child support cannot be paid. This is known as an undue hardship claim. All or part of expenses for extra-curricular activities, also known as “special expenses” may also have to paid in addition to child support. Child support usually is payable until the child reaches 18 years of age. Should the child continue to post-secondary education, the payer could continue to be responsible to pay support well into the child’s 20s. If a child has a disability, support could be payable indefinitely.
Spousal support on the other hand is more discretionary in that there is no “fixed” amount per month. The duration of support also is more discretionary. Case law in the area of spousal support varies. This makes predictions in terms of how much support a payer must pay much more difficult to make. There are spousal support guidelines, (readily available on the internet) but these offer more of a benchmark than a fixed rule and also vary in terms of the suggested amount payable. When trying to determine what the appropriate amount of spousal support should be, some of the following factors are considered: the length of the marriage, the age and health of the parties, available employment opportunities, the effect that the marriage had on employment opportunities, the family’s standard of living during the marriage and the need for a recipient of support to stay home to take care of young children or adults with disabilities. This is not an exhaustive list. As each case is unique it is always best to consult with a family law lawyer to try to determine what the appropriate monthly support amount is.
In order to obtain a divorce the married couple has to be separated from each other for one year. The couple can live together for no more than 90 days during this one year period (in the hopes of reconciling the relationship). As long as the married couple has been separated from each other for one year, then a divorce will be granted, regardless of whether one side is not cooperating and/or does not want a divorce. In this regard, divorce can be done unilaterally without the approval of the other side (assuming a separation of at least 1 year). Other grounds for divorce include showing that your husband or wife has had a sexual relationship with another person during the marriage, or that your husband or wife has been physically or mentally cruel to you. As a result, even if your husband or wife does not want a divorce, a divorce can and will still be granted.
The Children’s Aid Society (CAS) are very powerful, in many cases, more powerful than the police. There is no other agency or organization in Ontario that can come into another person’s home and take away their children and not have to justify the apprehension to a court of law for up to five days. The children’s aid society have various agencies throughout the province of Ontario, mainly divided into regions, i.e., Peel Region Children’s Aid Society, Toronto Children’s Aid Society and York Region Children’s Aid Society. Some children’s aid societies are also categorized by religion, i.e., Catholic Children’s Aid Society and Jewish Child and Family Services. The CAS’s mandate is the protection, safety and well-being of children. If a police officer would want to speak to you, you have the right to remain silent at all times – at which point, you may or may not be charged depending on the circumstances. However, the same is not true with the CAS. When it comes to a child’s welfare, privacy and individual rights diminishes. If a CAS worker wants to talk to you concerning your child(ren), then if you do not talk to them or let them into your home, this may make matters worse. There could be a real concern that your child(ren) are in danger – questions arise – “what are you hiding in your home”, “is your child okay, hurt or in danger”, “why won’t you let us in”? As a result, it is always a delicate balance when a CAS worker wants to speak with you. Everything is also documented so whatever you say may be used against you in a child protection proceeding later on. You may be best off talking, but only providing limited information, depending on the situation. Failure to cooperate with the CAS may itself become a reason for an apprehension. If the CAS wish to speak with you for the first time, contact our office immediately for further advice as every case is unique and always potentially treacherous.