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Family

Adoption

Adoption is the act of legally taking another’s child and bringing it up as one’s own. Essentially, adoption is the legal process of becoming a non-biological parent. Through the adoption process, the Court’s primary goal will be the best interests of the child. Court’s determine this by assessing the child’s emotional, physical and mental needs, cultural background, relationships with biological relatives and what the child wants.

Alternative Dispute Resolution

An integral part of Family Law is Alternative Dispute Resolution (“ADR”). ADR is a method of resolving disputes out of court. Alternative Dispute Resolution has three main components, Negotiation, Mediation and Arbitration.

Arbitration

Arbitration is the third stage in the process of Alternative Dispute Resolution. If parties are unable to achieve a resolution through mediation then arbitration would be the next step in attempting to resolve the dispute. Arbitration involves a specially trained third party who usually an expert in the area of family law. The parties or their lawyers present their case at a hearing and the arbitrator makes the decision based on the facts and supporting documentation.

Child Custody and Access

Custody and access have two separate legal meanings, yet often get confused for one another. Custody relates to the decision making authority over the child. Custody is defined by the Children’s Law Reform Act as ‘rights and responsibilities of a parent’. This may include which school the child attends, which religious institution the child may partake in, medical decisions and extracurricular activities. Access relates to where the child resides. This is achieved through an ‘access schedule’ and it determined on the child’s best interests.

Child Support

All parents have an obligation to provide financial support for their children. This obligation exists whether the parents were legally married, cohabiting, separated, divorced or never residing together. Child support is dealt with under the Divorce Act as well as the Family Law Act.

Cohabitation Agreements

Cohabitation agreements are becoming more and more significant as unmarried couples who reside together do not benefit from property division provisions in the Family Law Act. A cohabitation agreement can determine the rights each party has in the others’ property interest. Cohabitation agreements can also deal dividing the estate upon death and spousal support obligations.

Collaborative Family Law

There has been a shift over recent years to encourage family matters to settle without going to court. This saves the effects parties’ time, money and stress as the litigation process can be extremely daunting and expensive. Collaborative family law is a non-adversarial model of resolving disputes. The parties work with lawyers whose focus is to settle matters co-operatively.

Division of Property

After a relationship breakdown, spouses have the right to divide their property. If the spouses are married, then the property division takes place in accordance to calculations in the Family Law Act. If the parties were not married, the property is divided on common law principles of property ownership and equitable principles of trust. Therefore, both married and unmarried couples have claims to property rights once the relationship breaks down.

Divorce

Divorce creates a change in one’s legal status from married to single and it must be granted by the court. Married couples seeking a divorce must comply with the Divorce Act. While a separation does not legally end the marriage, a divorce ends the marriage once it has been granted by the court. Section 8(1) of the Divorce Act sets out divorce as the breakdown of a marriage; however there are three ways to establish a marriage break down. One way, which is most common is the no fault ground of separation. This is when spouses have been living separate and apart for over a year and at least one party does not intend to reconcile. There are two fault grounds for divorce: adultery and cruelty which can be used to by-pass the one year separation period.

Independent Legal Advice

If you are unsure if you have a family law claim or issue, you may benefit from seeking independent legal advice from our office. We can meet with you to discuss potential case and devise a plan as to what the next steps should be. Our consultations are completely confidential and we work to provide you with the best direction to make your next decision.

Inheritances

After a relationship breakdown, spouses have the right to divide their property. If the spouses are married, then the property division takes place in accordance to calculations in the Family Law Act. If the parties were not married, the property is divided on common law principles of property ownership and equitable principles of trust. Inheritances through third parties are an exception to the division of property after a marriage breakdown. Even though they are acquired during a marriage, they are not shared through the division or property.

Mediation

In mediation, the parties meet with a neutral third party who will help them try to come to an agreement. The mediator’s role is to help the parties explore the situation to see whether there is a solution that can satisfy the needs of both parties (and, in child custody matters, the needs of the children). In mediation the parties must arrive at a settlement on a voluntary basis.

Negotiation

Often parties find that they are able to come to an agreement through counsel without having to go to court. This process certainly is encouraged not only by the judicial system, but also by counsel. Through successful negotiation parties can achieve a common ground more efficiently, as it takes less time and is more affordable.

Prenuptial Agreements

Marriage contracts (often known as ‘prenuptial agreements’), are often used by couples to set out terms in advance of the marriage. Cohabitation agreements are used for couples who are not married and are not contemplating marriage. Cohabitation agreements may deal with the division of property for unmarried couples to avoid potential litigation down the road. Marriage contracts often deal with how property is to be divided up upon separation of spouses. They can include terms that set out exclusive possession of the matrimonial home, or how to deal with particular property that is brought into the marriage.

Separation

Separation commences the day married couples begin to live apart and at least one of the spouses has an intention to remain separate and apart. Married couples may separate as an initial step in the divorce process to take time to gain insight into their marriage. Spouses are not considered to be legally separated if it is a mutually agreed upon break, with the intention of getting back together again.

Spousal Support

When spouses separate, there is a continued obligation to support a spouse financially in accordance with their need. The Family Law Act and the Divorce Act deal with spousal support and the court may order one spouse to pay support to another. Spousal support can be arranged through a separation agreement, and enforced through the courts. Section 15.2(1) of the Divorce Act states that the court has power to make an order ‘to secure or pay, or to secure and pay’. The court may therefore order a spouse to make support payments periodically and to post a form of security in the event that they default.

The Matrimonial Home

The matrimonial home is usually the most valuable asset the family owns at the time of separation. Regardless of who has legal ownership of the matrimonial home, both spouses have an equal right to continue residing there after the separation until such that time the parties or the Court decide otherwise. Spouses cannot borrow against the matrimonial home or sell it without the knowledge and consent of their other spouse. While the court can order the sale of the matrimonial home in certain situations, the court cannot order one party to purchase their spouse’s share of the matrimonial home – and only the parties themselves can make such arrangement. In dealing with the matrimonial home after separation, it is often necessary to involve other professionals, such as real estate agents, mortgage brokers, or appraisers.