"Decision-making responsibility" (formerly, "Custody") has nothing to do with the time one shares with his or her child. Decision-making responsibility deals strictly with a parent's decision-making authority. The parent with primary decision-making responsibility of the child will have final say on all major decisions relating to the child.
The main categories of major decisions are decisions which relate to the child’s:
Thus, the parent with primary decision-making responsibility of the child will have the final decision-making authority relating to the aforementioned categories of decisions in the event of a disagreement.
The parent with "primary decision-making responsibility" has a positive legal obligation to involve the other parent in the decision-making process or at the very least, inform the other parent, prior to making the decision. Failing to do so is a breach of the basic parenting principles set out in the Children Law Reform Act.
"Joint decision-making responsibility", which is becoming more and more commonplace, means that both parents have equal decision-making authority, or equal say with respect to major decisions relating to the child’s health, education, residence, extra-curricular activities and religion.
No major decision relating to these categories can be made unilaterally (without consultation, and consent of the other parent) by one of the parents.
Typically, whether a court makes a primary or joint decision-making responsibility order will depend on the parents’ historic decision-making process, ie. the status quo.
Thus, if the parents had historically both been very involved in the child’s life, the presumption will be that they were jointly parenting, and the post separation custodial regime should reflect what was in place during their union.
If, on the other hand one of the parents was the primary decision maker, while the other parent’s involvement was absent, or limited, a primary decision-making responsibility order to the former parent is likely.
The single greatest challenge in decision-making responsibility cases is the determination of the truth. The parent seeking primary decision-making responsibility will allege that the other parent was an uninvolved or quasi absent parent, while the parent seeking joint decision-making responsibility will allege that he/she, was an actively involved parent. This is the classic he said she said scenario. Because neutral third-party evidence is often difficult to obtain, such cases can become quite costly to litigate.
In such circumstances, courts will often order that a social worker or a lawyer from the Office of the Children’s Lawyer be appointed to perform an independent investigation in order to determine what is in the child’s best interest.
"Parenting time", or visitation rights relate strictly to the time a child spends with each parent. Parenting time rights have nothing to do with decision-making responsibility, as it does not relate to decision-making authority.
Historically, fathers saw themselves being awarded alternate weekend parenting time, plus a few hours, or an overnight visit, on his off week. This trend is becoming less and less popular.
Increasingly, courts are finding that it is in a child’s best interest to spend as much time with their father as they do with their mother, after the date of separation.
That said, it will be difficult for a parent, who has historically had little involvement in the child’s life to seek an order for equal time sharing, or shared decision-making responsibility.
Today’s reality for many families is that both mom and dad work outside of the home, have careers, bring the children to doctor's appointments, to daycare, extra-curricular activities, and so on.
Both fathers and mothers change diapers, feed the children, make lunches, cook meals, and give physical and verbal affection.
Because the traditional roles in the Canadian family have changed, so have the standard court orders. Judges are increasingly, considering both parents as suitable custodial parents, which often results into joint decision-making responsibility and equal parenting time orders.
That said, for children aged 0-5, some courts are finding it to be in a child’s best interest to primarily reside with their mothers. In such circumstances, short but frequent visits are often recommended.
In circumstances where a parent has no prior relationship with the child, or in cases of substance abuse, violence, or evidence that the child may be at risk, it may be appropriate to implement supervised parenting time visits.
The visits can be supervised at a "Supervised Parenting Time Centre", or by a suitable third party.
Such cases may require the involvement of the Office of the Children’s Lawyer.
In the most extreme circumstances involving severe substance abuse, physical abuse, emotional abuse, violence, or neglect, no parenting time may be appropriate.
Such circumstances may require the involvement of the Children’s Aid Society, and the Office of the Children’s Lawyer.
Each and every case is determined on its unique set of facts.
Child support is normally one of the simplest matters to determine in court. Child support is based on the payor’s income, the number of children, and the “Child Support Guidelines” (the CSG). The CSG dictates exactly how much child support the payor must pay.
The determination of child support can become complex when there is uncertainty relating to the payor’s income. This challenge often arises when dealing with self-employed payors. The payor will claim a certain income.
The recipient will take the position that the payor is being untruthful about his or her income. Most child support ligation relates to the determination of income.
The remainder of child support litigation deals with "time counting". The CSG provide that the quantum of payable child support will be reduced or adjusted if the child spends at least 40% of his or her time with one of the parents and the remainder of the time other parent.
The desire to meet the 40% threshold is, at times, motivated by a desire to reduce one’s child support obligation. In such circumstances, parties may become entrenched in their positions, resulting in lengthy and costly litigation.
In addition to child support, both parents are expected to share ‘special and extraordinary expenses’ on a “pro-rata basis".
This means that in addition to payable child support, both parents will be expected to pay for daycare, extra-curricular activities (though there is some debate about when this is considered an extraordinary expense), and post-secondary education (the first post-secondary degree, at the very least).
Such expenses must be shared on a pro-rata basis, meaning in proportion to each parent’s income. To illustrate this principle, if the mother earns $100,000 per year and the father earns $50,000 per year, their child’s monthly daycare expense of $999 per month will be shared as follows: mother pays $666 and father pays $333.
Spousal support is financial support given by the payor to the recipient. Spousal support seeks to prevent situations where the high-income earner can continue to enjoy their standard of living after the separation. In contrast, the lower-income earner’s standard of living takes a drastic decline.
The focal objective of spousal support is to help the parties maintain the standard of living they were accustomed to during the cohabitation or marriage.
Spousal support is, without a doubt, the most litigious area of family law.
The level of uncertainty in determining fair amounts of spousal support and the inconsistency of the courts in their orders have prompted several scholars to produce the “Spousal Support Advisory Guidelines” (the SSAGs). Though much more complex than the Child Support Guidelines, the SSAGs provide spousal support ranges for spousal support awards.
Generally, basic data is entered into software widely used by family law practitioners. This data includes the parties’ ages on the date of separation, the number of children of the relationship, and the parties’ incomes. This data will then produce spousal support ranges – low, medium, and high.
Most family law lawyers accept the ranges and will litigate or advocate within the ranges prescribed by the SSAGs.
With the exception of quantum, litigation or advocacy typically involve entitlement to spousal support, ability to pay, and duration of spousal support. Entitlement and ability to pay, are determined on a case-by-case analysis, which will not be discussed herein. Generally, the longer the relationship, the longer the duration of the spousal support award.
My general practice is to attempt to achieve a settlement prior to commencing the court process.
Some parties agree on what they desire before contacting a lawyer or mediator. They subsequently instruct their lawyers to prepare settlement documents.
This is by far the most cost-effective way of resolving family law matters.
Settlements are often achieved by the exchange of correspondence between counsel, followed by the drafting of a final agreement.
A four-way settlement meeting involves both parties and their respective lawyers meeting at one of the lawyer’s offices, discussing the issues, exchanging disclosure and attempting to achieve a settlement.
I have found this to be a very effective settlement method.
Counsel assisted mediation involves the parties and their lawyers attending a jointly selected mediator who will assist them in achieving a settlement.
The benefit of a mediator is to give the parties and their lawyers the benefit of a having a neutral third-party opinion, or recommendation. A mediator does not have the authority to make decisions in a matter unless the parties agree to give the mediator that authority.
This resolution vehicle involves the parties jointly retaining a mediator, and attending settlement meetings, without their lawyers. The parties will then typically meet their respective lawyers to review the proposed settlement document, prior to affixing their final signatures.
Arbitration involves the parties and their lawyers preparing written documentation, law briefs, and arguments, presenting the case to an arbitrator (often a retired judge or experienced lawyer), who will be charged with making a final binding decision on the issues.
The end result of an arbitration is very similar to having the matter determined by a court. However, choosing this resolution vehicle can significantly reduce the duration of the dispute, and legal fees.
Family property is the value of the net property accumulated during the relationship and its increase in value.
The Family Law Act provides that this property can only be divided if the parties were married. This is referred to as “equalization of net family property.” Unmarried couples do not have a de facto right to share in the property of their partners.
That said, depending on the circumstances of an unmarried couple’s relationship, any property may be divided based on the right of equity rather than the provisions of the Family Law Act.
The law of equity, and the principle of unjust enrichment, provide that one party should not unduly become enriched at the expense of the other. In circumstances where one party unfairly benefited from the union, the court will look to the right, the wrong.
An uncontested divorce is a divorce where both parties agree to the divorce, or one party does not oppose the divorce. An uncontested divorce can proceed by "simple divorce" or "joint divorce".
The process of obtaining an uncontested divorce, or joint divorce, involves the drafting, signing, and filing of the applicable forms and the payment of the applicable fees to the Minister of Finance. From the date of the finalization of the divorce documents to the receipt of the final divorce order typically takes approximately 90 days. The Family Law Court sends the divorce order to each party directly by regular mail.
Obtaining an uncontested or joint divorce can often be more complicated than one would think. A number of documents must be drafted and at least one affidavit of divorce must be sworn and filed with the Court.
Courts will routinely deny the request for a divorce if there are unresolved property issues, or if the child support arrangements are deemed inadequate by the judge. For instance, in situations where the parties agree that child support would be an amount lower than what is provided by the Child Support Guidelines, the court will often deny the granting of the divorce order. The reasoning, particularly when it comes to child support, is that child support is the right for the child. Thus parents cannot contract out of a right that is not theirs.
A contested divorce is one where one of the parties does not consent to the divorce being issued.
Typically, the only ground under which one can oppose a divorce is if issues relating to support or property division have not been resolved.
When the term contested divorce is used in practice, it is often meant to designate cases where the parties were married. They resort to the courts to determine a given issue, such as decision-making responsibility, parenting time, property division and so on.
Typically, only one meeting is required.
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