An In-depth Guide to Understanding Family Law and Your Rights

Family law disputes can be among the most emotional of any legal disputes. Even the most amicable of separations and divorces can leave parties feeling hurt and vulnerable. Especially if there are children involved, it can be even more devasting. The good news is that it is possible to resolve disputes in a healthy manner and ensure your rights are protected. Here is what you need to know. 

What Are Your Rights When You Are Married? 

In Ontario, both you and your spouse have the same right to reside in your family home even if you separate.

According to the Ontario Family Law Act, you are also entitled to child support if you have the children from the relationship living with you for a good amount of the time. You may also be entitled to spousal support if your ex’s income is much higher than your own.

When you get married, you may choose to enter into a marriage contract (sometimes called a prenuptial agreement) which outlines how property will be divided should you separate. The marriage contract may not however specify child custody.

What Are Your Rights When You Have a Common Law Partner?   

You are living in common law if you have lived with a partner for more than three years or you have lived with them for less than three years but are raising a child together.

In a common-law relationship, you do not have the same rights to property as a married person. All property including the home remains the property of the person who purchased it. You could be entitled to some of the property value however if you helped with mortgage payments or made other financial contributions to the property.

One way to protect your rights is to get a cohabitation agreement with your common-law partner. Like a marriage contract, a cohabitation agreement sets out who gets what in the event of a separation.

Negotiating Separation Agreements 

When a marriage or common-law relationship breaks down, it is possible to settle everything outside of court. This is usually the easiest and least expensive way to separate although there are some cases where a court cannot be avoided.

A good family lawyer can help you negotiate a separation agreement that includes details about important family law issues such as:

  • Child custody and access to children.
  • Child support.
  • Spousal support.
  • Division of property or assets.

When do you have to go to the family court? 

While most cases can be settled outside of court, there are some instances when it is necessary to use a court setting. This could happen if your spouse refuses to negotiate a fair agreement on an important issue in your separation agreement.

It may also be necessary to go to court if you believe your spouse is hiding assets or acting in bad faith.

If you do have to go to court, your family lawyer will carefully review all evidence to build your case to help you protect your rights.

What are Your Family Law Rights and Obligations? 

The Family Home 

In the case of married couples, both spouses have an equal right to the family home. In a separation or divorce, couples generally either sell the home and split the proceeds, or one spouse will buy out the other. In rare circumstances, both parties may choose to continue living in the family home.  

Child Custody and Access 

When there are children from the relationship, parents will need to make some decisions about the care of the children following the separation.  As you and your ex make these decisions, it is important to keep in mind what is in the best interests of the children.

In developing a co-parenting plan, you decide how decisions concerning your children will be made, how to manage their extracurricular activities and determine their living arrangements.

Traditionally parenting plans have seen the children live with one parent for the majority of the time with the other parent having access every other weekend, but more and more we are seeing 50/50 arrangements such as children living with one parent for one week and the other parent for the next on a rotating basis.

If you cannot agree on a child custody arrangement with your spouse, then a court will make the decision based on what it deems to be in the best interest of the child.

Child Support 

When the child(ren) lives with one spouse for most of the time, the other parent has a legal responsibility to pay child support. If one spouse has a significantly higher income, they may even have to pay child support if the custody arrangement is 50/50.

The amount of child support is calculated according to the Child Support Guidelines and is determined by your annual gross income and the number of children that need support.

Spousal Support 

You may also be entitled to spousal support if you were married or common law. The amount of spousal support is calculated based on the difference between your and your spouse’s annual income as well as the number of years you were in the relationship.  

Division of Property 

If you were married to your partner, then you are entitled to half of the value that was accrued during the marriage and half of the family home. This is determined by a formula called equalization of net family properties.

If you were common law, there is no set formula or “right” to property but you can make a claim based on your financial contributions during the relationship.

If you have a marriage contract or cohabitation agreement with your spouse, you may have made different arrangements for the division of assets which are legally binding however any agreements about child support in such contracts are not enforceable.

Contact Minhas Lawyers today

If you have a family law issue it is important to know your rights and to work with a family lawyer who will protect those rights. Contact Minhas Lawyers today to speak to a family lawyer.

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