What are my responsibilities if I have custody of my children?
If you and your spouse agree that you should have custody of the children, or if the judge decides that you should have custody, you have the responsibility for making the major decisions about your children’s upbringing and schooling. The children will usually live with you most of the time. In most cases, the other parent still has responsibility to care for the children some of the time. Remember, the law says that there should be as much contact as possible with both parents as is best for the children.
I don’t have custody. Can I still spend time with my children?
Generally, the parent who does not have custody of the children still has responsibility to spend time with them. If you cannot agree on these access arrangements, the court will decide for you. A parent with access usually spends time with the children, such as on a weekday evening, on weekends and on holidays, and may ask for information about the children—news about their health and well-being and about how they are doing at school. As a parent with access responsibilities, you can ask the court to order the other parent to give you advance notice if the custodial parent intends to move the children to another home.
Do I have to use the terms “custody” and “access” when deciding upon parenting arrangements?
The Divorce Act uses these terms, but this does not limit the types of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.
At what age can my children decide where they want to live?
There is no magic/set age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child’s wishes as the child matures.
If I have sole custody, do I have the right to move anywhere with the children?
When a parent has sole or joint custody of the children, problems sometimes arise when that parent wants to move and take the children with him or her. The other parent usually will not want the parent who has custody to move to a distant place which makes regular visitation difficult or impossible.
The Supreme Court of Canada has recently determined that a custodial parent cannot automatically move a child anywhere without the other parent’s consent. Similarly, the Ontario Court of Appeal has also decided that a custodial parent does not have an inherent right to move a child anywhere he or she decides. Under both federal and provincial legislation, the decision to allow a child to be moved must be made in the best interests of the child.
These cases can be very expensive and time-consuming because of the research required and the time it takes to prepare and present the legal arguments. The parent seeking permission to move must often, with the help of a lawyer, prepare a detailed custody plan that includes an evaluation of facilities and resources in the new location, comparison of the costs of living, availability of health care and schools, cultural environment, and the local economy.
Many of the disputes over mobility arise in joint custody situations. If a parent has sole custody, he or she may be able to move if access and visitation rights can be worked out with the other parent, or if the court gives its permission.
The Supreme Court of Canada outlined a test to be followed when deciding whether a child can be moved when a custodial parent moves. Basically, the parent looking to oppose the move or ensure access must establish a “material change” in circumstances affecting the child. He or she will want to identify the factors that might destabilize the child’s life and will want to highlight the positive aspects of child’s life in the current location. For example, showing that the new area’s crime-rate is high, that the quality or availability of social services and schools is lower can influence the court. If the parent opposing the move is successful, then a judge can inquire into the best interests of the child as far as the move is concerned. At that point, both parents have a burden of establishing the child’s best interests.
Some factors that might be taken into consideration when deciding whether to allow a custodial parent to move a child would include whether the child could still have access to the non-custodial parent, and disruptions in the child’s lifestyle as a result of the move.
Also, some separation agreements or custody orders contain specific restrictions on the custodial parent’s right to move with a child beyond a certain distance, such as 30 kilometres beyond a specific municipality. In those cases, the parent who wishes to move with the child will likely need court approval to change the agreement or order.
In addition, if a parent is allowed to move, it may be expensive for the other parent to travel to see the child, or to have the child come to him or her. In such cases, a court may require the custodial parent to share or assume the added cost of travel to ensure access to the other parent
How does a Court decide which parent should awarded custody?
In making its decision, the court will consider the Divorce Act, the Family Law Act, the Children’s Law Reform Act, results of court-ordered assessments, and the decisions in prior court cases. Further, pursuant to the Children’s Law Reform Act, the child must also be habitually resident in Ontario for an Ontario court to make custody or access orders.
Primarily, courts tend to look at what is in the best interests of the child, when determining who gets custody and access. In most cases, the parent who has custody of the children during the separation is more likely to get permanent custody of the children after the divorce. The court rarely disrupts the children’s home environment if they have settled into a steady and stable routine with one parent.
Factors considered by the court may include:
- Spouses can apply for custody.The federal Divorce Act states that, upon application by either or both spouses, a court may make an order regarding custody of, or access to children of the marriage. Only spouses are allowed to make applications for custody or access, unless the court gives leave or special permission to someone else. This means that grandparents, brothers, sisters, aunts, uncles, friends of the family, and other individuals cannot normally make an application for custody or access under the Divorce Act.
- Not biological parent.Under the Family Law Act of Ontario, a child is defined as a person whom a parent has demonstrated a settled intention to treat as a child of his or her family. Therefore, as long as a spouse can demonstrate this intention, that spouse can make an application for child custody under the Divorce Act, even though the spouse is not the child’s biological parent.
- Past conduct of a person is not to be taken into consideration when making a custody or access order, unless the conduct is relevant to the ability of the person to act as a parent to the child. Conduct which is relevant to this ability includes violent actions by a spouse toward the other spouse, or toward the child.
- In cases of same-sex marriage, the Divorce Act has been amended to include same-sex partners in the definition of spouse, allowing them to seek custody of a child. Similarly, the Ontario Court of Appeal has ruled that sexual orientation of a parent is not a factor which can prevent a parent from getting custody of a child.
- Friendly parent rule. In making an order for custody or access, the court is to follow the friendly parent rule and grant custody to the parent who is most likely to allow the other parent access to the child.
- Age of child. At one time, the age of the child was important in determining the child’s best interests. However, recent court decisions have ruled that a father is equally able to take care of young children, and they should not automatically be placed with their mothers.
- Marital offence.Commission of a marital offence, such as adultery, is not sufficient to deny custody to a parent.
- Blood ties. According to the Children’s Law Reform Act, blood ties are one factor to be considered in determining what is in the best interests of a child, but this factor is also not given priority. The Supreme Court of Canada has ruled that the best interests of the child are still more important than blood ties in making custody decisions.
In addition, the Children’s Law Reform Act lists several other factors to be taken into account when making the decision. These include:
- emotional ties between the people claiming custody or access and between other people in the household,
- preferences of the child (if they can be learned),
- stability of the home environment,
- ability of the person applying for custody to provide the child with guidance, education, and necessaries of life,
- ability to provide for any special needs of the child, and
- plans for the upbringing of the child.
What are the different types of custody?
Joint custody. Sometimes only one parent will have custody and sometimes parents will have what is called joint custody. Both parents with joint custody legally have care and control of the children, and share in the important decisions about how the children are raised. Joint custody can mean that the children live part of the time with each parent, or that the children live with just one parent. Because joint custody requires a lot of co-operation by both parents, there may be hesitancy on the part of the court in making an order if there is significant friction between the parents.
Shared custody. When children live with each parent at least 40% of the time, this is referred to as shared custody. Depending on the amount of time the children spend with each parent, special provisions may apply to the calculation of child support.
Sole custody. If one parent has sole custody, it means the child lives permanently with that parent. The other parent may have access rights. It also means that the parent with sole custody can make all of the important decisions about the child. This is the case even if the other parent disagrees.
Split custody. In recent years, concepts have developed such as split custody, a situation where one or more child of the marriage remains with each parent. Split custody is a variant of joint custody which usually requires the consent of both parents. Courts do not ordinarily order split custody without agreement, as it is in the best interests of children to remain together.
What is the cost of mediation?
The cost of mediation will depend on a variety of factors: the nature and complexity of the issues; the dynamic between the parties; the willingness of the parties to compromise. Blake Lyngseth’s hourly rate as an accredited family law mediator is $320.00. Laura Pilon’s hourly rate is $225.00. How long the process takes, how many sessions required, will depend in large part on the parties.
Which is more cost-effective, mediation or litigation?
But in mediation, parties avoid the costs of preparing a court case, which can quickly escalate into the tens of thousands of dollars or more.
Going to court is very expensive and usually involves:
- Many meetings with your lawyer,
- Getting your story and position down in affidavit form,
- Reviewing and putting together disclosure materials that would include many financial documents, letters and correspondence from each party and from third parties, notes, and assessments,
- Drafting the originating process, such as the petition for divorce, application or statement of claim,
- Research for the relevant legal issues,
- Drafting, serving and filing information statements for the judge in addition to the pleadings,
- All attendance time at court, including waiting time, which could be hours, and
- All court filing fees, where applicable.
By comparison, the average cost of a mediated settlement is under $5000. And for those parties who have lawyers, those lawyers tend to charge their mediation clients far less than their litigation clients.
What is the role of a mediator?
Unlike a lawyer in litigation, the mediator does not represent one side or the other. A mediator’s job does not involve giving legal advice. The mediator’s role is to try to bring the parties to agreement.
By doing so, the mediator faces many challenges, including the following ten:
- Conducting an assessment before they take the case as to whether it is appropriate for mediation for any reason.
- Creating a neutral and safe environment — emotionally and psychologically, physically and legally — so that each party feels able to fully participate in the negotiation without fear, duress, or threats of reprisal, judgement or prejudice.
- Managing intense emotions in a way that allows each party to fully express their worries, concerns and goals, without disempowering or insulting the other.
- Identifying the contentious issues, and empowering the parties to go below the surface of those issues to help them gain some insight into the underlying reasons for their respective positions.
- Helping the parties to stay focused on the best interests of their children, and respecting the rights of children to have their views heard.
- Helping the parties better understand where the other is ‘coming from’ legally, emotionally and psychologically.
- Encouraging the parties to come up with their own solutions, and finding neutral ways to help them see options they may not be able to see themselves.
- Reinforcing the parties’ efforts to negotiate and keeping them at the table when the going gets tough.
- Reality-checking with each, often in private, their alternative to settlement, which is often either doing nothing or lengthy and costly litigation.
- Managing all of this in a way that lets each party feel heard, respected, and treated equally by the mediator.
The mediator’s role is to try to find some common ground between the parties, and work with them to help them come together to a final settlement on all issues.
Recent research shows that of all the options available to separating couples, family mediation is usually the least expensive, the fastest and the most useful for parenting disagreements and as useful as any of the others for financial disputes. Couples who use family mediation services report universally high rates of satisfaction with the process and the outcome.
How much does it cost to go to court?
The cost will vary depending on a variety of factors, including the nature and complexity of the issues, and how reasonable or unreasonable the conduct of the parties. It is important to keep in mind that if one commences a court application, one is not necessarily committed to continuing through to the end. By that I mean the parties can settle at any point during the process. The cost of litigation will depend in great part, therefore, on how far one must go down the litigation road to achieve one’s objectives.
How much will court cost is a very legitimate question, but unfortunately one to which it is difficult to provide a concrete, definitive answer. Litigation is expensive business. Generally, even getting to the Case Conference stage will cost the client $2,500.00 – $3,000.00 as a minimum. A trial (the last step in the court process) can cost tens of thousands of dollars. Lawyers will charge an hourly rate. Blake Lyngseth’s hourly rate is $320.00. Laura’s hourly rate is $225.00.
What are the different steps in the court process?
Going to court is not how it is portrayed on the television. The court process is an onerous time-consuming process consisting of many steps:
- Mandatory Information Session (MIP): Unless one is dealing with a simple divorce, both the parties (the Applicant and the Respondent) are required to attend a two hour Mandatory Information Session. This Session addresses alternatives to litigation as well as the negative impact litigation can have on the children of the relationship.
- First Court Date Appearance: This is the first step in the process if one or both of the parties are self-represented. One does not appear in front of a Judge or a Master at this step. Generally, this step is required to ensure that the materials filed are ‘judge ready’. A date for a Case Conference will be set at this stage.
- Case Conference: The Case Conference is the first time the parties are in front of a Judge or a Master. This is a relatively informal stage, aimed at making the family law process less adversarial. One can discuss the issues in front of a judge. The judge will attempt to assist the parties to settle some if not all of the issues. The judge might give her/his opinion as to the most likely outcome if the parties choose to continue down the litigation route. Generally speaking, the judge will not make any orders unless the order is on consent of both parties. The exception to this is disclosure. For example: if the issue is child support, a judge will order financial disclosure that has not already been provided—e.g. income tax returns, recent pay stubs, possibly bank and credit card statements. Unless it is a case of urgency, a Case Conference is a necessary step prior to bringing a motion.
- Motion:A court appearance for the purpose of obtaining temporary relief: for example, interim child custody or support. A court will make an Order at this stage. This is where the cost consequences of an unsuccessful verdict should be kept in mind. If the judge rules more in favor of what the opposing party proposed, you could be responsible for a portion of the other party’s legal costs. The evidence at a motion usually consists of affidavit (sworn statement) evidence.
- Settlement Conference:Similar to a Case Conference, but more intensive. A judge again attempts to assist the parties in coming to a mutually acceptable compromise, without proceeding further to a full-fledged trial. The judge will encourage parties to settle, often by forecasting the most likely outcome if the matter proceeds to trial. Any disclosure lacking will be court ordered.
- Trial Management Conference: At this point, a Settlement Conference has not served to settle the outstanding issues, and a trial appears unavoidable. At this Conference, the court tries to ascertain how many days will be required for the trial– how much evidence, how many witnesses etc.
- Trial:The final step. A trial can last days, if not weeks. Evidence is introduced, and witnesses are heard. There is examination-in-chief and cross-examination. The cost of a trial can amount to many thousands of dollars. If successful, one might be able to recoup a portion of the costs from the other side. Of course, if the other side is impecunious, one must keep this old adage in mind: ‘one cannot get blood from a stone’.
Do I need a separation agreement to be ‘legally separated’ in Ontario?
A couple is separated when one of the parties (or both, for that matter) decides that the relationship is irreconcilably over. A decision to separate does not have to be put in writing.
This being said, however, there are government agencies that require some tangible proof that a couple is in fact separated (just for example, the Canada Revenue Agency). This proof can take a variety of forms, including a separation agreement. Without a separation agreement or a court Order, convincing various authorities that you are in fact separated can sometimes prove troublesome.
How much does a separation agreement cost?
Lawyers generally do not have a set price for the preparation of a separation agreement; they will charge for their time. The time spent will vary on the nature and complexity of the issues. For example, if the parties have not accumulated significant assets during the course of the relationship, or if there are no children, a separation agreement will be much shorter in length and much easier to prepare.
Blake Lyngseth’s hourly rate for preparing a separation agreement is $300.00. Laura Pilon’s hourly rate is $200.00.
How much does a marriage contract or a cohabitation agreement cost?
Lawyers generally do not have a set price for preparing a contract of this nature; they will charge for the time it takes to prepare the document. The time it takes will depend on a variety of factors, including the number and nature of the assets and whether there is a great disparity between the parties’ respective incomes and assets. Blake’s hourly rate for preparing such an agreement is $320.00. Laura’s hourly rate is $225.00.
Can I include provisions dealing with child support and custodial arrangements in my marriage?
You could, I suppose, but these types of provisions are not enforceable. The courts always have the authority to override child support and custodial provisions which are deemed not to be in the best interests of the children.
What are the advantages of having a cohabitation agreement?
The law does not require common-law couples to sign cohabitation agreements but it is often a good idea for two reasons. First, it gives you and your spouse the opportunity to discuss what you each expect if the relationship ends. Second, it lets you create rights that the law does not otherwise provide for. For example, you may both agree to split property equally if you separate. Or, you may agree that neither of you has the obligation to financially support the other. The only terms you cannot put in a cohabitation agreement are child custody and access arrangements.
Why Should I enter into a Marriage Contract?
There are generally three reasons why a couple may decide to have a marriage contract. First, a spouse who is substantially wealthy or has an asset base that is increasing in value, may wish to avoid having to account for any increase in wealth on marriage breakdown. When a person has a great deal of money, or expects to receive a lot of money in the future, he or she may want to make sure that any increase in net worth will not need to be equalized. Specific assets can be protected such as pensions or real estate and can be kept intact if the marriage fails.
Second, a marriage contract can be used to establish arrangements in advance for financial support if the relationship ends. For example, one spouse may want to make sure that the other spouse will provide adequate spousal support or child support if the relationship ends. Alternatively, the other spouse may wish to limit the amount and duration of any support paid. Income tax obligations may be a concern that can be addressed in respect of spousal support. Either way, spouses can come to an agreement about support while they are still on friendly terms.
Third, a marriage contract can be used to make arrangements for dividing property and money earned during the marriage or to make special arrangements about particular matters such as partnerships or corporations in which one or both may have an interest. Again, this allows couples to decide on a division of property different from that provided by the Family Law Act and to reach an agreement while they are on good terms.
How long does the divorce process take?
Barring any unforeseen complications, the process should take approximately three months.
I have to deal with ‘corollary’ issues, but I would like to proceed with a divorce and deal with these other issues later. Is this possible?
It depends on the issue. One can deal with issues of property division and spousal support post-divorce. Child support, however, is a different story: generally, child support needs to be addressed prior to seeking and obtaining a divorce. Under the Divorce Act, the Court is obliged to ensure that ‘proper financial arrangements’ are in place for the children prior to granting a divorce.
What are the grounds for divorce?
To get a divorce under Canadian law you do not have to prove that one spouse did something wrong. Most divorces are granted on the basis of marriage breakdown. This is proven simply by showing that the spouses have lived separate and apart for one year before the granting of the divorce judgment.
Where divorce is sought on the grounds of physical or mental cruelty that makes the continuation of the marriage intolerable or upon the grounds of adultery, the divorce judgment can be granted without waiting for a year to pass. However, it is usually easier, less expensive, and less painful to wait for a year and divorce on the grounds of marriage breakdown.
Before commencing a divorce petition in Ontario, the court requires either one of the parties to have been resident in the province for at least one year. Also, it is not necessary for both spouses to apply for a divorce. A divorce can be granted even where the divorce is only sought by one spouse.
Do I need both a power of attorney for personal care and a continuing power of attorney for property?
Yes. The two powers of attorney confer authority for different acts or functions. The authority to deal with a person’s financial affairs under the continuing power of attorney for property, for example, does not confer the authority to make decisions vis-à-vis the person’s care.
Can I appoint the same person to be both my attorney for personal care and my continuing power of attorney for property?
Yes. In fact, in my opinion, it is generally advisable to have the same individual(s) act as both. For instance, if your power of attorney for personal care needs to place you in a nursing home or other long-term health care facility, s/he will need the financial wherewithal to finance this step.
Is a ‘Living Will’ the same thing as a Power of Attorney for Personal Care?
Although the two are often confused, a Living Will is not the same as a Power of Attorney for Personal Care. A Power of Attorney for Personal Care is a legal document in which you name a specific person to make personal care decisions on your behalf. Personal care can include decisions about many things, such as health care, medical treatment, diet, housing, clothing, hygiene, and safety. In contrast, a Living Will sets out only your wishes about your health care and it does not need to name anyone to act on your behalf.
A Living Will can be a stand-alone document, but is usually included as part of a Power of Attorney for Personal Care.
What if I don’t have a Power of Attorney for Personal Care?
Your family can make personal care decisions for you. If you become mentally incapable and you do not have a Power of Attorney for Personal Care, your family has automatic authority to make certain personal care decisions on your behalf. This means that they do not need to apply to the court for permission. For example, your family can make decisions about your health or medical treatment, decisions about personal assistance services such as bathing, and decisions about whether to admit you to a long-term care facility.
Although these decisions can be made by any member of your family, certain relatives have priority over others. The highest priority goes to someone who has been appointed by the court as your legal “representative.” A member of your family could become your legal representative by applying to the Ontario government’s Consent and Capacity Board. They would then have priority over any other family members, and would be asked first when decisions need to be made.
If no-one has applied to be your “representative,” then your spouse or partner would have the highest priority, and would be asked first. If they are not available, then your children who have reached the age of 16 would be asked next. If you do not have a spouse or any children who are at least 16 years old, then your parent, your brother or sister, or any other relative will be consulted. So, for example, if you become mentally incapable of making a decision about surgery, then your doctor must obtain consent from your family. Your doctor would begin by seeking consent from a representative or from your spouse or partner. If they are not available, then your doctor would ask your child, and so on down the list.
As a final resort, the Office of the Public Guardian and Trustee can make personal care decisions on your behalf.
Someone can apply to the court to be your guardian
If you become mentally incapable of making personal care decisions and you do not have a Power of Attorney for Personal Care, any relative or friend can apply to the court to become your Guardian of the Person, provided they are at least 16 years old and are not being paid to provide you with health care, residential, social, training, or support services. If they are being paid to provide you with any of these services, they can only apply if they are your spouse, partner, or relative.
Your guardian is responsible for making all of your personal care decisions. They must keep in touch with you, and explain to you the kinds of decisions that are being made. Your guardian also has a responsibility to make decisions in a way that is consistent with how you would have made them yourself.
Wills and Powers of Attorney are extremely important documents and relatively inexpensive to have prepared professionally. Drafting a Power of Attorney involves a number of technical legal details. If it is not prepared correctly, it will not be legal. When drafting a Power of Attorney, or if you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
What if I don’t have a Continuing Power of Attorney for Property?
A Power of Attorney for Property is a written document that allows someone else to make decisions about your property and finances. Many people incorrectly believe that if they are unable to make decisions about their property or financial matters, their immediate family can do it for them. Unlike personal or health care decisions, the law does not permit family members to have automatic rights over the management of a mentally or physically incapable person.
For any financial decisions, legal authority is needed. If you become unable to make decisions about your property or finances and you do not have a Power of Attorney for Property, someone must apply to a court for permission to be your representative or a guardian will be appointed by either the Ontario government’s Office of the Public Guardian and Trustee, or by the court. There are generally four circumstances where a guardian for property could be appointed.
- A guardian may be appointed if you are in hospital and temporarily incapable
A Guardian of Property may be appointed if you become hospitalized because of an illness or an accident. For example, if you are in a car accident and you become unconscious, someone will need to look after your property and financial affairs while you are in the hospital.
First, you need to be formally declared as being mentally incapable of handling your affairs. This can usually be done by a psychiatrist in the hospital where you are. But, if the hospital does not have a psychiatrist, then a request must be made for a “capacity assessor” to do the formal assessment.
Once an assessment finds that you are mentally incompetent, a Certificate of Incapacity will be issued. The Public Guardian and Trustee will then become your guardian first. This is called a “statutory guardianship”. As the guardian, they will first seek out any family member who can replace them as your guardian. Provided there are no disagreements among family members as to who should be the replacement guardian, the Public Guardian and Trustee will hand over guardianship immediately. That person will then have guardianship while you are mentally incompetent.
- A guardian may be appointed with your consent
Second, a Guardian of Property may be appointed if you are not hospitalized, but someone thinks you are incapable of handling your property and financial affairs. For example, an adult child may believe that their aging parent is forgetting to pay the monthly bills.
First, a mental assessment of the person must be done. This mental assessment cannot be done unless the person consents to the assessment. Unless there is a court order, no one can force the person to undergo an assessment. If the person agrees, and the assessment results indicate that the person is mentally incompetent, the person’s consent is still needed before a guardian can be appointed.
If the person consents to having a Guardian of Property, then the Public Guardian and Trustee will become the guardian first. The person’s family can then apply to the Public Guardian and Trustee to replace them as the incapable person’s guardian. Provided that the family agrees on who should be the guardian, the Public Guardian and Trustee will hand over guardianship immediately to that person.
- A guardian may be appointed without your consent by a court order
If the person does not agree to a mental assessment, or does not consent to having a guardian, then the only other option is to make an application to the court. An application for guardianship can only be made by people 18 years of age or older. People who are paid to provide health care, residential, social, training, or support services to an incapable person generally cannot apply, unless they are also the person’s spouse, partner, relative, guardian, or Attorney for Property or Personal Care. The court will decide whether the person is mentally incapable, and will name a guardian if necessary. In certain circumstances, a trust company may be a good choice for a Guardian of Property. Applying to court can be very expensive and complicated. You should consult with a lawyer first before making an application.
- A guardian may be appointed if you are in a psychiatric hospital
Fourth, a guardian may be appointed for a person who is a patient in a psychiatric hospital. Once they are found to be mentally incompetent, the Public Guardian and Trustee will become the guardian first. Any family member can then apply to replace them as the legal guardian.
Wills and Powers of Attorney are extremely important documents and relatively inexpensive to have prepared professionally. Drafting a Power of Attorney involves a number of technical legal details. If it is not prepared correctly, it will not be legal. When drafting a Power of Attorney, applying to become a guardian, or if someone is applying to be your guardian and you do not agree, you should consult a lawyer.
What do I do if I want to make some relatively minor changes to my Will?
If you want to make some minor changes to your Will, you can do so without writing an entirely new Will. You do, however, need to write a formal document. You should not simply scratch out certain parts of your Will and write in your changes. This is usually not legal.
A formal change to your Will is called a “codicil.” A codicil is a document that cancels certain parts of your Will, or adds new parts to your Will. It should refer to your Will, and say specifically what is being changed. It needs to be prepared in the same way that a Will is prepared. If your codicil is typed, it needs to be signed by you and two witnesses. The two witnesses must both be present when you sign. They do not have to be the same two people who witnessed your original Will. If you have handwritten the entire codicil, then you do not need to have witnesses. You just need to sign it yourself. All codicils should be dated.
Although there is no limit on the number of codicils that you can have, if you find that you have made a lot of changes, you should write a new Will. This will avoid confusion caused by having several different documents.
When does my Continuing Power of Attorney for Property take effect, and how can I revoke it?
A Power of Attorney for Property takes effect as soon as it is signed and witnessed, and can be revoked at any time provided you are mentally competent.
When does it take effect?
If you do not want your Power of Attorney for Property to take effect immediately, you must specifically state in the Power of Attorney that it will take effect on a later date. For example, if you want the Power of Attorney to come into effect only if you become mentally incompetent, you must say so in the Power of Attorney document.
Can you revoke it?
Generally, a Power of Attorney lasts until your death. However, you can revoke a Power of Attorney at any time if you are mentally competent. By revoking a Power of Attorney, it means that it is cancelled and no longer effective. Although there is no special form that must be completed to revoke a Power of Attorney, the cancellation must be written and signed in front of two witnesses who are both present when you sign. The two witnesses must then also sign.
Although the witnesses do not need to be the same witnesses who signed the original Power of Attorney, under the law, your witnesses cannot be your attorney, the spouse or partner of your attorney, your own spouse or partner, your child, or anyone under the age of 18. Your Power of Attorney will not be legally cancelled if the revocation is not properly witnessed. You should give a copy of the revocation to anyone who was aware of the previous Power of Attorney. This way, they will know that it has been cancelled.
Drafting a Power of Attorney involves a number of technical legal details. If it is not prepared correctly, it will not be legal. When drafting a Power of Attorney, or if you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
What happens if I die and I do not have a Will?
If you die without a Will, the law says that you have died “intestate,” which means that you left no instructions as to how your property is to be divided and distributed. In these circumstances, the Ontario Succession Law Reform Act governs how your property will be distributed to your surviving relatives. Even if you want your property divided according to provincial law, you should still have a Will because it will reduce delays and expenses involved in wrapping up your affairs.
How your property will be distributed
According to the Act, if you die without a Will, your property will be distributed as follows:
1) If you have a spouse, but no children:
Your spouse inherits everything. This only applies to legally married spouses. Common-law spouses do not automatically receive anything if you die without a Will.
2) If you have a spouse and children:
Your spouse first takes a preferential share up-to $200,000 worth of assets. Anything left over is called the residue. If anything is left over, it is divided between your spouse and your children as follows: If there is only one child, your spouse and child each receive half of the residue of the estate; if there is more than one child, your spouse receives one-third of the residue and the children share the remainder equally.
3) If you have children, but no spouse:
The children each inherit an equal portion of your estate. If any of them have died, that child’s descendants (i.e. the deceased person’s grandchildren) will inherit their share.
4) If you have no spouse and no children:
Your parents inherit your entire estate.
5) If you have no spouse, no children, and no parents:
Your brothers and sisters (or their children if any brothers and sisters have died) divide your estate.
6) If you also have no brothers and sisters:
Your nieces and nephews each inherit an equal portion of your estate.
7) If you have no nieces and nephews:
All other next of kin inherit an equal portion of your estate.
8) If you have no living next of kin:
Your estate goes to the Ontario government.
Problems that arise when someone dies without a Will!
Dying without a Will can create problems for those you leave behind. First, your property will be divided according to the law, which may not be the same as how you would have divided it. Second, there will be extra time delays and expenses involved in wrapping up your affairs, and the court will have to appoint someone to act as your personal representative. The general rule is that your closest relative has the right to be appointed as your personal representative. They are appointed by applying to the court for a Certificate of Appointment of Estate Trustee Without a Will. This gives authority to the personal representative to manage and distribute the estate of the deceased.
As of January 1, 2016, ‘proof of death” must be filed when applying for a Certificate of Appointment of Estate Trustee (with or without a Will). This could be: a death certificate issued by the Registrar General; a Funeral Director’s proof of death certificate; or, an order made under the Declarations of Death Act, 2002 declaring that the person has died.
What is a Holograph Will?
A holograph Will is less formal than an attested Will. The main requirements of a holograph Will are that it must be entirely handwritten by the person making the Will, and it must be signed and dated. Unlike an attested Will, it does not require witnesses or affidavits, and can be prepared personally by the person making the Will. Although this appears to be the simplest option for preparing a Will, it is not a good idea for most people. These Wills may not be valid if they are unclear or missing important legal details.
Can I prepare my own Will? Do I need a lawyer?
Your Will is a formal document that has to follow certain rules to be legal. Even though you may think that you can easily prepare your own Will, it will often be missing certain technical legal requirements. Without all the legal requirements, you will not have a legal Will, and without a legal Will, it could become expensive and time-consuming for your family to sort out your personal affairs when you die.
Wills are extremely important documents and relatively inexpensive to have prepared professionally. Although it is possible to prepare your own Will without the assistance of a lawyer, it is important to seek at least some legal advice to ensure your Will is complete and legally binding. There are also certain groups of people who should always seek legal advice when making a Will. Legal advice is critical if you are about to be married or separated, if you have a large estate, if you have assets in other countries, if you have a mental disease, or if you are very elderly. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
If I get married or divorced, with this affect my Will?
Your Will can be affected if you get married or divorced.
In Ontario, your Will is automatically revoked once you get married. This means that the entire Will is cancelled, unless the Will was made with the marriage in mind. To show that the Will was made with the marriage in mind, it must contain a statement which makes reference to your upcoming marriage and the name of your spouse. If your Will did not contain this statement, it is no longer valid after you are married, and you should therefore make a new one. If you do not, upon your death, you will be considered to have died intestate and the rules under Ontario’s Succession Law Reform Act will apply.
Since the laws across the country are not the same any longer, deciding which laws apply if the person married in one province and died in another, can be unclear. Further, if a person marries or dies outside of Canada, the decision as to which law applies becomes even more complicated. To avoid such difficulties, it is best to enter into a Will and revoke the old one upon marriage, or when entering into a common-law relationship.
A divorce has a different effect on your Will. If you get a divorce, your Will is not cancelled. Instead, only the provisions in your Will that refer to your spouse are revoked. This means that your former spouse will no longer be your executor, trustee or guardian, and any gifts you left to your former spouse will go to someone else. Who the gifts will now go to will depend on the structure of your Will. It is important to understand that separation from a spouse where the couple was legally married, generally has no impact on the Will. Because it can get confusing, you should consider making a new Will when you get divorced, or become separated from a common-law partner.
It is important to note that in most cases, beneficiary designations relating to assets, such as RRSPs, RRIFs, life insurance policies, and pensions are not affected by divorce, or separation from a common-law partner. This means that the individual will have to take steps to remove a former spouse or common-law partner as the beneficiary to prevent them receiving the asset.
Wills are extremely important documents and relatively inexpensive to have prepared professionally. If you want to make sure your Will is legal and clearly expresses your wishes, you should consult a lawyer.
How do I ‘cancel’ my Will?
You can also revoke your Will completely. Revoking a Will means to cancel it. If you want to cancel your Will and not replace it with anything right away, you can make a Codicil which says that you are cancelling your Will, or you can physically destroy your Will by tearing it up.
If you die without making a new Will, your property will be distributed as if you had died without a Will. If you want to cancel your Will and replace it with another Will, you can do this by writing a new Will because most Wills include a clause near the beginning that says that all earlier Wills are cancelled.
What is an ‘alter ego trust’?
An alter ego trust is an inter vivos trust through which a person called a “settlor” can put their assets into a trust to be used and managed by themselves as trustee, for their own benefit as beneficiary. The trustee is the alter ego, or the distinct alternative personality of, the settlor.
Use of the alter ego trust gained popularity among estate planners after 2000, when changes to the Income Tax Act, R.S.C. 1985 (5th Supp.), c. 1 (“Act”), provided income tax breaks for persons who settle an alter ego trust.
The first income tax break is that the settler can “roll over” their assets into the trust, meaning the assets retain their adjusted cost base, deferring the realization of capital gains until disposition at a future date. This is in contrast to other types of trusts, where the property transferred into the trust is deemed disposed of (or treated as though it were sold) at fair market value and tax is payable on it. In addition, the property is not taxed until it is disposed of at a later date, or until it is deemed disposed of upon the death of the settlor. This is in contrast to many other types of trusts where the property is deemed disposed of, and so tax is payable, every 21 years.
The alter ego trust is also helpful for avoiding probate fees, called estate administration tax in Ontario, because the assets in the trust do not form part of the settlor’s estate.
A further benefit of the alter ego trust is as a substitute for a power of attorney (“POA”) for property. If the settlor loses capacity to manage their finances, the trustee can continue to manage the trust assets for the protection of the settlor who is also the beneficiary. For the alter ego trust to function as a POA substitute, the settlor could not be the only trustee; there would need to be a co-trustee or substitute-trustee appointed who could act upon the settlor losing capacity.
Lastly, the alter ego trust protects the settlor’s privacy, as the terms of the trust and the nature of the trust property are not disclosed through the public process of probate.
Requirements to Qualify as an Alter Ego Trust
The following requirements must be met for a trust to qualify as an alter ego trust under the Act:
- the trust must be an inter vivos trust settled after 1999;
- the settlor must have been at least 65 years of age at the time of settling the trust;
- the settlor must be entitled to receive all of the income of the trust arising prior to their death;
- no person except the settlor may, before the settlor’s death, receive or otherwise obtain the use of any of the income or capital of the trust;
- the settlor must not have made an election to preclude the rollover of the property into the trust; and
- the settlor and the trust must be resident in Canada.
One of the main disadvantages of the alter ego trust is that the capital gains are taxed in the trust at inter vivos rates, not the graduated rates that would have been available to the settlor as an individual throughout their lifetime. Depending on the other income of the settlor during their lifetime, this could result in higher income taxes payable at death.
Another disadvantage is that the settlor will lose legal ownership over their assets, even if they remain one of the trustees. Moreover, the establishment of the trust can be fairly expensive given the legal and accounting fees likely incurred in the exercise. Lastly, there are ongoing costs for maintaining the trust, such as the preparation and filing of annual tax returns, and the trustee’s obligation to maintain accounts. Unless the benefits of the alter ego trust outweigh the disadvantages, the alter ego trust may not be a cost-effective estate planning tool.
An alter ego trust must be carefully drafted to avoid triggering land transfer tax when real property is transferred to the trust. It must be clearly established and supported by affidavit evidence that there is no change in the beneficial ownership of the property during the lifetime of the transferor. A properly drafted alter ego trust must clearly stipulate that only the settlor has a beneficial interest in the trust during the settlor’s lifetime.
An alter ego trust should not bestow power upon the trustee to purchase life insurance. This is because life insurance on the life of the settlor, purchased with trust funds, may be treated by the Canada Revenue Agency as being for the benefit of someone other than the settlor, namely the beneficiary of the policy; this would violate the requirement that no person except the settlor may, before the settlor’s death, receive or otherwise obtain the use of any of the income or capital of the trust.
While it is not an absolute certainty that such an investment would put the trust off-side, the safest approach when drafting such an instrument is not to provide the trustee the power to purchase life insurance.
What is a ‘bare trust’?
A bare trust is one in which the trustee (also called a bare trustee or nominee) holds property without any further duty but to convey the trust property to the beneficiary(ies) or as the beneficiary(ies) direct(s).
Bare trusts are common arrangements for holding title to real property. A bare trustee is commonly a corporation with no other assets. A bare trustee may hold title to real property for a variety of reasons, including where the beneficial owner(s) may not be a legal entity capable of holding title (such as a partnership), may wish to protect their privacy, or may have security or strategic reasons for remaining anonymous.
Bare trusts are not recognized as trusts for the purposes of the Income Tax Act, R.S.C. 1985 (5th Supp), c. 1 and so, where property is held by a bare trustee, the beneficiary is deemed the owner of the property for tax purposes.
The arrangement between the beneficial owner(s) and the bare trustee should be specified in a written trust agreement to safeguard the interests of the beneficial owner(s).
What is a ‘Henson Trust’?
A Henson trust is a discretionary trust settled for the benefit of a person with a disability. The purpose of the trust is to preserve the beneficiary’s eligibility to receive government benefits (typically provincial benefits which, in Ontario are provided under the Ontario Disability Support Program or “ODSP”).
The name “Henson trust” derives from the case of Ontario (Ministry of Community and Social Services, Income Maintenance Branch) v. Henson,  O.J. No. 1121 (S.C.J.), where such trusts were recognized by the Court in Ontario as a mechanism to hold assets for a beneficiary receiving ODSP, without causing the beneficiary to lose their entitlement to ODSP.
A Henson trust must be fully discretionary, meaning the trustee must have absolute discretion to determine whether to apply the trust assets for the benefit of the beneficiary or simply retain the assets in the trust, when to transfer amounts to the beneficiary, if at all, and what amounts, if any. Because the beneficiary has no vested right to receive income or capital from the trust, the beneficiary cannot be found to own assets in excess of the ODSP limits as a result of the assets in the trust. The beneficiary does not own the trust assets — the trust does.
That said, trustees must ensure that all payments from the Henson trust to the beneficiary are carefully calculated so the beneficiary does not receive income or assets above the government’s prescribed limit, as otherwise the beneficiary may lose their entitlement to ODSP.
Trust Derived from Inheritance
Where in a Will a testator makes an outright gift to a beneficiary with a disability who is receiving ODSP benefits, the beneficiary may lose their entitlement to ODSP benefits. This is a serious risk, as the beneficiary would lose not just income support from ODSP, but a package of important benefits including vision, dental, and prescription drug coverage, medical supports, assistive devices, and employment support.
To protect the beneficiary’s entitlement to ODSP benefits, the gift should be transferred to a “trust derived from inheritance” . The assets transferred to a trust derived from inheritance qualify as “exempt” assets under Ontario Regulation 222/98. An exempt asset is one which does not disentitle a person to ODSP.
The trust derived from inheritance must be settled for the maintenance of the person with the disability within 6 months of the person receiving the gift. The combined capital and income earned on the trust property must not exceed $100,000.
The disadvantage of relying on the trust derived from inheritance is that the value is capped at $100,000. In contrast, had the testator settled a Henson trust in their Will, there would be no limit on the value of the trust property. Another disadvantage is that the executor, or beneficiary, may fail to obtain legal advice in time to settle the trust derived from inheritance. A further disadvantage is that the beneficiary may lack the capacity to settle the trust themselves, and a guardian for property may need to be appointed who could then settle the trust.
My brother was named as executor of my father’s will. He is doing a very poor job as executor. Is there anything to be done?
Even though someone was appointed by the deceased to be the estate trustee (executor), there may be reason to remove or replace him or her. In order for an estate trustee to be removed or replaced by the Court, there must be evidence that the trustee is not fulfilling their duties or acting in the best interest of the estate. In most cases, estate trustees have been removed for misconduct, such as not acting in the best interests of the estate.
Examples of reasons for removal include:
Breach of trust and fiduciary duty: The trustee-trust relationship creates a fiduciary duty by the trustee (or executor) to the beneficiary or trust. Fiduciaries owe a duty of care to the trust or beneficiaries, and must always act in good faith and with integrity, and make decisions that are in the best interest of the beneficiaries or trust.
Not providing a proper accounting: An estate trustee has a duty to keep proper accounts, including valuating the estate, paying the debts, and distributing the assets of the estate properly. They also have a duty to disclose this information to the beneficiaries.
Conflict of interest: If an estate trustee cannot act impartially because they are personally benefitting from the trust, the Court will have reason to remove them.
Inability to act impartially: An estate trustee, while fulfilling his/her duties must act impartially and objectively.
Other reasons for removal
The Court may remove the estate trustee for a number of other reasons, including if the trustee:
- has gone bankrupt,
- has been convicted of a crime,
- shows an inability or unwillingness to carry out the terms of the trust,
- has become incapacitated either through age or illness,
- mismanaged estate assets,
- took compensation before allowed,
- is unable to agree with, or is hostile with a co-trustee, or
- showed improper behaviour or misconduct, or acted in a manner that endangered the estate.
Who can apply to remove an estate trustee?
In Ontario, under the Trustee Act, anyone with a financial interest in an estate can apply to the Court to have an estate trustee removed, replaced or not appointed at all. Dissatisfied or frustrated beneficiaries often go to court for the removal of the executors and to force them to pass their accounts (which means they will have to show the court all of the accounts and documents relating to the administration of the estate).
How does a court decide?
In making its decision, the Court will not lightly interfere with the deceased’s choice of estate trustee. In addition, the Court’s main consideration must be the welfare of the beneficiaries. The Court will make a decision to remove or replace an estate trustee if it is proved to be necessary that the estate trustee be removed; and/or if the estate trustee’s acts or omissions are endangering the administration of the estate.
I have an Order that my spouse pay both spousal support and child support. How do I make him pay?
File with the Family Responsibility Office
To ensure that payments are made, all spousal support orders and child support orders (including child support orders that have been set-up online) which are issued by the courts are now automatically sent to the Ontario Government’s Family Responsibility Office (FRO).
Once this is done, both parents will be mailed a Notice of Calculation or Recalculation. This document includes the new child support arrangement, including the amount to be paid, and it can be enforced just like a court order.
Support orders made through a written agreement
If you have reached an agreement for child or spousal support (usually as part of a separation agreement) without a court order, you are still able to file your agreement with the FRO at any time, and ask them to enforce it. The FRO will do so provided that the agreement has been filed with the court. By filing with the court, it enables the agreement to be enforced as if it were an order of the court.
To have it enforced by the FRO you must:
- Submit a copy of the written arrangement and completed affidavit (that shows agreement was submitted) to the nearest courthouse. This can be submitted by mail or in person.
- Send a copy of the written agreement only to the Family Responsibility Office by mail or fax.
How is support paid?
The FRO Office then co-ordinates and monitors all support payments. All payments are made to the FRO, not the party receiving support. If the paying spouse is employed, payments are automatically deducted from the supporting spouse’s pay and sent to the FRO. If payments are not being deducted from an employed supporting spouse’s pay, payments must be sent directly, by the supporting spouse, to the FRO by one of the following methods:
- Pre-authorized debit (PAD) from a bank account
- Arrangements with their financial institution
- Telephone banking (if available)
- Online banking (if available)
- Cheque or money order
In all situations, the Office forwards the payments to the receiving spouse, either by cheque or direct deposit. The first payment should be received within 30 to 60 days after the support order is registered. After that, the money is sent to the recipient within 24 to 48 hours.
In order for the FRO to be able to assist you in enforcing your order or agreement, it is necessary for them to have sufficient details about your case. Therefore, when filing your order or agreement, you must also submit the Support Deduction Information Form, which is available at the court. This form asks for information about you and your spouse, including detailed information about the payor spouse, such as their full name, address, social insurance number, place of employment or business, income, and any property they own. The support deduction order allows the FRO to collect support by sending notice to a support payor’s employer or other income source. Support can then be deducted from the payor’s income.
It is important to update the information on this form whenever the information changes, for example if your spouse gets a different job or moves. By having up-to-date information, the FRO will be able to better help you collect your support payments.
How can unpaid support be collected?
If the supporting spouse does not enter into a payment plan, such as automatic deductions from employment, or has not been making payments to the FRO by any other method as required, the FRO can take various courses of action to enforce the order or agreement. The FRO has been given a broad range of powers. For example, the FRO can:
- garnish, meaning to take money from, the defaulting spouse’s other sources of income, if the spouse does not have a regular employer, such as a bank account, an income tax refund, a pension or even a disability payment;
- in some circumstances, take steps to sell property owned by the spouse and put that money toward support payments (called issuing a writ of seizure and sale for property);
- put a lien on the defaulting spouse’s personal or real property, such as a car or house;
- suspend the driver’s licence of a defaulting spouse;
- report the defaulting spouse to credit bureaus so that it will be difficult for them to get loans; or
- cancel the defaulting spouse’s passport.
The FRO will only cease its enforcement actions if both the recipient and payor spouses agree.
How does a Court decide how much and for how long a spouse has to pay spousal support?
There is usually no simple answer as to how much spousal support a person will have to pay. It will depend on the income of both parties, and the standards of living of both parties’ households. As mentioned, there are many factors and goals the Courts have to observe when determining quantum and duration of spousal support. Generally speaking the Courts do not like to see a huge disparity in income levels and standards of living between two separated spouses, particularly after a long-term relationship and when children have been involved. Spousal support will often be awarded in an amount that provides both ex-spouses with comparable levels of net disposable income.
Recently, ‘Spousal Support Advisory Guidelines’ have been developed. These Guidelines (SSAGs) have been of much assistance in assisting family lawyers and the judiciary in creating a range for spousal support awards, both with respect to quantum and duration. It is important to note, however, that these Guidelines are precisely that—Guidelines. The Court retains the discretion to award an amount and duration of spousal support outside the range generated by the SSAGs.
In short, spousal support can prove to be a difficult and heavily litigated area of family law. If you are dealing with the issue of spousal support, you would be well advised to consult with a family lawyer or family mediator.
Who is entitled to spousal support?
Legally married couples
Spouses who were both legally married and divorced are entitled to spousal support according to the laws set out in the federal Divorce Act. Provincial and territorial laws decide the rules for legally married couples who separate, but who are not divorcing, and for unmarried couples who were in a common-law relationship.
Spouses, who are not married, may still qualify for spousal support if they lived together as a couple:
- for at least 3 years, or
- for any length of time if they were in a relationship of some permanenceand had a child together.
What are the Child Support Guidelines?
In May of 1997, the legislature implemented the Child Support Guidelines. This was an attempt to simplify the child support issue. And relatively speaking, the child support issue has been somewhat simplified.
After separation, if a child of the relationship lives primarily with one parent—which is to say at least 60% of the time—the other parent must pay child support. This is an obligation that does not depend on the primary parent’s income, even if the primary parent is better off financially than the parent required to pay support.
You will use a set of rules called the Child Support Guidelines to help you calculate the amount of child support. The federal and provincial governments have produced ‘Tables‘ to determine the appropriate level of child support. There is a different table for each province and territory. If both parents live in Ontario, the Ontario table applies. Also, if the paying parent lives outside of Canada and the parent with custody lives in Ontario, the Ontario table applies. But if the paying parent lives in another province, the table for that province is the one that applies.
Child support is not tax deductible for the payor spouse, and the recipient spouse does not have declare the amount received for tax purposes.
What are Section 7 Expenses?
The ‘table’ amount of support is the starting point. This amount contemplates a contribution towards feeding and clothing the children, and a contribution towards the roof over the children’s heads. In addition to the support amount set out in the table, parents who pay support may be required to contribute towards certain added expenses. These expenses could include:
- the cost of child care needed for the parent with custody to work or go to school or because of that parent’s health needs;
- medical and dental insurance premiums for the child;
- health-related expenses for the child, such as orthodontic, prescription drug, therapy or hearing aid costs;
- special expenses for a school or educational program to meet the child’s particular needs;
- expenses for post-secondary education for the child;
- in certain cases, ‘extraordinary’ expenses for the child’s extracurricular activities.
These special expenses are shared between both parents in an amount proportionate to their respective incomes. Generally speaking, a parent should not incur a special expense for a child, for which s/he expects a proportionate contribution from the other parent, without first consulting with the other parent and obtaining the other parent’s consent, such consent not to be unreasonably withheld.
It would be very financially difficult for me to pay the Guideline Table amount of child support. Can I do anything?
In some circumstances, a parent might argue that she/he should pay less than the table amount of support on the grounds of undue hardship. Section 10 of the Child Support Guidelines enumerates certain examples that could result in undue hardship. For example, the parent paying the child support perhaps suffers from ‘undue hardship’ because she/he is supporting a new family with new dependents.
Persuading a court to order less than the Table amount of child support is difficult. Courts are reluctant to make a finding of undue hardship. Furthermore, the undue hardship test is two-tiered. Even if a court concludes there might be hardship, the court must then compare standards of living of the two parents’ households. If the payor’s standard of living is still comparable or better than the recipient’s household, the undue hardship claim will fail.
If you believe you might be in a position to pursue an undue hardship claim, you might be well advised to seek the assistance of a family lawyer.
I just separated from my spouse, who had children from a previous relationship. Am I responsible for paying child support for children who are not my biological children?
Being a parent of a child in law can arise even if the individual is not a biological parent. If a man has demonstrated a settled intention to treat a child as a child of his own family, that man may be deemed to be a parent of that child under the Family Law Act, even if he is not the biological father of the child. This can also apply to cases where the mother is artificially inseminated and the father later wishes to apply for a declaration of parentage to gain custody or access rights.
What is a Common-Law Relationship?
When two people live together in a conjugal relationship and are not married, they may be considered to be living in a common-law relationship. A conjugal partner is someone with whom you have more than just a sexual or physical relationship.
Once a common-law relationship is determined to exist, a number of rights and obligations arise under:
- Family law
- Tax law
- Immigration sponsorship
- Social assistance and disability benefits
- The Canada Pension Plan and Old Age Security
- Employee benefit plans
- Workers’ compensation benefits
- Inheritance laws
Both federal, and provincial and territorial laws define the requirements for a common-law relationship to exist for the purposes of these rights and obligations. Also, under various legislation, common-law relationships can be referred to by other names. For example, in Alberta, the law refers to “adult independent relationships”; and in Nova Scotia, they are known as “domestic partnerships”.
Criteria considered in determining if a common-law relationship exists
In all cases, when deciding if a common-law relationship exists for legal purposes, two factors are always considered:
- How long the couple has been living together; and
- If they have children together.
In addition, other considerations that the Court may use to determine if a couple is in a common-law relationship include:
- Sexual and personal behaviour: Are they living in a conjugal relationship?
- Children: Do they act as parentto the other partner’s children?
- Services: Does each partner help each other the way a traditional family would?
- Social: Do the partners portray themselves as a couple?
- Societal: How does the community view their relationship?
- Economic Support: Does one partner support the other financially, or are household expenses combined?
The rules affecting common-law relationships depend on the province where you live.
Can I enter into a new common-law relationship even if I am not divorced?
Under the Ontario Family Law Act, spouse means either of two persons who:
(a) are married to each other, or
(b) have together entered into a marriage that is voidable or void, in good faith on the part of a person relying on this clause to assert any right.
And under the Act, “polygamous marriages” are defined as:
“In the definition of “spouse”, a reference to marriage includes a marriage that is actually or potentially polygamous, if it was celebrated in a jurisdiction whose system of law recognizes it as valid.”
The effect of these definitions is to give rights to a person who, in good faith, entered into a marriage that later turns out to be void, voidable, or polygamous.
A marriage does not end legally until you are divorced. Practically speaking, however, it often happens that before a couple is legally divorced, one or both of them could be living with another partner in a conjugal relationship. Also, two people who are separated from their original legal spouses, and who live together for more than 3 years, or have a child together, are usually considered to be “common law spouses under family law. In those circumstances, therefore it appears that a person can have two spouses.
Consequently, it becomes complicated to discern whether a common-law union is legal when one of the common-law spouses is still legally married to someone else; and if so:
- how does it affect their rights and obligations under each relationship, and
- does that mean that they have committed polygamy?
What is the difference between an annulment and a divorce?
An annulment is a declaration by the court that two spouses were never legally married and allows some spouses to end a marriage without a divorce. Although many people would prefer to have their marriage annulled rather than to get divorced, the grounds for an annulment are very specific and very few marriages are annulled in Ontario. Even if you do seek and obtain an annulment, you should be aware that there may still be obligations for support and division of property under the Family Law Act.
Grounds for annulment
A marriage can be annulled for a number of reasons, which usually relate to a legal defect in the marriage ceremony or a disability of one of the spouses.
For example, spouses can seek an annulment for one of the following capacity issues, if, at the time of the marriage:
- one spouse was already married to someone else
- one spouse was under the age of 18 and married without parental permission
- the marriage was entered into under duress, fear, or fraud
- one spouse lacked the mental capacity to understand the basic meaning of marriage
- one or both spouses was intoxicated during the marriage ceremony and was not able to give consent
- the spouses were too closely related to each other by blood or adoption
Non-consummation of the marriage
A marriage can also be annulled if one spouse was unable to, or refused to, consummate the marriage. Consummation means the spouses must have had sexual intercourse with each other, at least once, after being married. Non-consummation of a marriage is the most common ground for annulment in Ontario. If, before the marriage, one spouse knew that the other never intended to have intercourse, or entered into the marriage on a strictly platonic basis, then the ground of non-consummation will not apply. Also, simply not having had time or the opportunity to consummate the marriage is not grounds for an annulment.
Not grounds for annulment
Religious annulments and marriages of convenience are not grounds for annulment. Although an annulment that is granted by a religious process may be recognized by that religious body, it is not valid under Ontario law. Also, the law does not take into account the parties’ motives for entering into the marriage when determining if it qualifies for an annulment. Therefore, marriages of convenience, such as for immigration purposes, cannot be annulled on that ground.
Although there is no time limitation on when spouses can obtain an annulment, annulments are generally used to end marriages that lasted for a very short period of time.
Who is considered living common-law for the purpose of filing income tax?
Under the federal Income Tax Act, common-law couples are treated the same as married couples. The definition of common-law partner under the Act is:
“A person with whom you live in a conjugal relationship who is not your spouse, and he or she:
- has been living with you at least 12 continuous months (includes any period you were separated for less than 90 days because of a breakdown in the relationship); OR
- is the parent of your child by birth or adoption; OR
- has custody and control of your child (or had custody and control immediately before the child turned 19 years of age) and your child is wholly dependent on that person for support.”
How do I file my tax return as a common-law partner?
If you meet the definition of a common-law partner under the Act, you must indicate that you are living in a common-law relationship on your tax return. You and your common-law partner must each file your own tax return with Canada Revenue Agency (CRA). Along with your own personal information, you must include your common-law partner’s name, social insurance number and their net income (even if it is zero) on your return.
The CRA calculates government benefits based on your household income. This means the CRA combines the income for both partners to determine eligibility for certain tax credits and benefit amounts.
Advantages to filing as a common-law partner
Depending on your situation and the type of credit or benefit, there are both advantages and disadvantages to filing your income tax return as a common-law partner.
You may be able to maximize certain tax credits and deductions. For example, you may be able to:
- combine receipts such as medical expenses and charitable donations to maximize your credits and pay less tax
- claim the Family Tax Cut (for couples with at least one child under 18),
- contribute to a spousal RRSP
- claim both the federal and provincial (if applicable) spouse or common-law partner amount tax credit if you supported your partner financially and they earned below a certain amount for the year
- claim the entire $5,000 Home Buyers tax credit amount (for new homeowners in the year they buy their first home) yourself or split it with your partner
You may also be able to transfer credits you will not use to your partner, such as:
- Disability Tax Credit,
- Pension income payment amounts,
- Age credit (for people over 65), and
- Credits for post secondary education, such as tuition and textbook credits.
Disadvantages to filing as a common-law partner
While you may be able to maximize certain tax credits and deductions when filing as a common-law partner, you may also lose some tax credits you might have been entitled to when filing as a single person because your combined income makes you ineligible. Or, only one partner will be eligible to receive the benefit.
Credits and benefits that you may lose include:
- the eligible dependant credit, which one or both partners may be claiming if they are raising a child,
- the Guaranteed Income Supplement (GIS) and the Allowance (offered under the Old Age Security program),
- the GST/HST credit,
- the Working Income Tax Benefit (WITB), and
- the Canada Child Benefit (CCB).
To be eligible for many tax credits, such as the GST/HST credit and the CCB, you must meet CRA’s low income family eligibility requirements. There are also many provincial and territorial tax credits and tax deductions that are affected when filing as a common-law partner.
I am afraid of my spouse. How do I get a restraining order?
There are several things you can do if your spouse is abusing you or your children. These include seeking shelter, having criminal charges laid, getting a peace bond, getting a family law restraining order, or getting an order for exclusive possession of the family home. No one should have to remain in a dangerous or abusive situation. The law and community support agencies make it possible to quickly improve your situation.
A restraining order can only apply to partners and former partners, including same-sex partners, and only in family situations, where spouses or partners have separated. A restraining order is an order from a judge restraining one spouse from molesting, annoying or harassing or communicating with the applicant spouse, former spouse or children.
A restraining order can include many different types of conditions, such as:
- forbidding the spouse from being in contact with the applicant spouse and/or the children (except as permitted under the order),
- forbidding the spouse from attending at the applicant spouse’s place of work, the family home and the children’s school,
- requiring the spouse to surrender (give to the police) any weapons, and
- forbidding the spouse from possessing certain property.
Although restraining orders generally have the same effect as a peace bond, they do have the following advantages: They can be obtained:
- quickly from your local Family Court (or police service in some areas),
- without your spouse knowing, and
- they are still enforceable by the police.
However, the restraining order is only valid in Ontario, because it is issued under the Ontario Family Law Act.
Once the Court has granted you a restraining order, you should give a copy to your local police department. Once a restraining order has been issued, if it is breached, it can result in a fine, the police can charge the person breaching the order with a criminal offence and the person may be subject to imprisonment, or both.
How to obtain a Restraining Order
To obtain a restraining order, visit the Family Court in the municipality where you or the other person lives. You will be required to file certain documents, including an application. The application sets out all the issues you are asking the court to deal with. Normally, you will not see a judge for a few weeks, however, if the situation is an emergency, you can bring a motion to get a restraining order immediately.
Depending on which court you are in, you will be required to attend either a first court date, or a case conference, where you will be able to explain your case.
If the judge grants the restraining order, the court staff will prepare it for you. Keep a copy of it with you at all times.
I question whether I am the biological father of the child. What do I do?
If either party is asserting that the man is the biological father of a child in a civil case, the court, under the Children’s Law Reform Act, may order a blood test to determine parentage. If either the man refuses to submit to the blood test, or the mother refuses to allow the blood test, the court may draw conclusions as it wishes from such a refusal.
How accurate is the testing?
DNA paternity testing through blood tests yields results that indicate a probability of paternity greater than 99%. If there is a mismatch between the profiles of the child and the alleged father, the alleged father is 100% excluded from being the child’s father, meaning there is no percentage of error for exclusion.
Are testing and test results legally enforceable?
Although DNA paternity testing is almost 100% accurate, the law is unclear as to what the legal force of a blood test is in determining paternity. However, the test results can be submitted to the court as evidence for presumption of paternity in a civil proceeding. How the paternity test will affect a case will vary on a case by case basis.
The rights and obligations if a man is found to be the father of a child
If a man is found to be the father of a child, the Family Law Act imposes certain obligations and affords certain rights to the father. The Act provides that every parent has an obligation to provide support for his or her unmarried child who is a minor, or who is enrolled in a full time program of education, to the extent that the parent is capable of doing so. A parent need not support a child of 16 years of age or older if the child has withdrawn from parental control. The amount of child support to be provided by a parent will be determined by the Child Support Guidelines of Ontario and the courts. The father of a child may also be entitled to custody and access rights under the Children’s Law Reform Act.
What is the ‘matrimonial home’?
The matrimonial home is the legal term used to describe the family home in which the spouses were living just prior to the date of separation. If you and your spouse regularly use more than one home together, then each home can be considered to be a matrimonial home. An additional matrimonial home, therefore, can include a cottage or chalet, or simply another home in another location.
Special rules for the matrimonial home
Unless spouses have a marriage contract setting out what happens to the matrimonial home upon marriage breakdown, the special rules set out in the Family Law Act apply. Regardless of whose name the deed is in, each spouse is regarded as having an equal interest in the matrimonial home. If the spouses owned more than one matrimonial home, the value of each of these homes must be allocated equally to each spouse as of the time of separation.
The rules set in the Act are particularly significant if one spouse owned the home before the marriage and it continues to be a matrimonial home at the time of separation. Even where one spouse owned the matrimonial home before the marriage, the entire value of the home has to be divided with the other spouse upon separation. Consequently, the spouse who owned the home before the marriage is not entitled to keep, or get credit for, the value of the home calculated at the time of the marriage. This is not the case with most other types of property, where a value is credited to the spouse who owned it prior to the time of marriage, based on its value at the date of marriage.
What does the term ‘Exclusive Possession of the Matrimonial Home’ mean?
When a relationship breaks down, it is common for one spouse to move out of the family home. However, in cases where neither spouse is willing to leave, it may still be possible to apply to the court to live in the family home without your spouse. Obtaining an order that would require your spouse to live somewhere else is called “an order for exclusive possession” and is mainly used for spouses who are experiencing abusive situations. You can make an application for exclusive possession even if you are not the one who owns the home, or the person named on the lease.
Exclusive possession orders, as the name suggests, precludes the other spouse from entering onto the matrimonial property. An order can be obtained for most types of property including houses, condominiums and apartments. These orders do not decide who owns the property, or who has rights under a lease. Being excluded from the matrimonial home does not affect your ownership rights. However, if the matrimonial home is subject to a lease, there may be other legal requirements that must be addressed.
In most cases, children are allowed to live in the matrimonial home and this will be stated in the order. Exclusive possession orders are usually temporary, and intended to apply until the couple has entered into a legally binding separation agreement.
To obtain an order for exclusive possession, an application must be made to the family court. In making a decision, the court will consider many factors, including:
- The best interests of the children:
- safety of the children
- the effect that a move might have on them
- their ties to the neighbourhood and local school
- how long they have lived there
- extra-curricular activities or studies in the area
- Violence committed by one spouse against the other spouse or the children
- The financial situation of both spouses
- Written agreements made between the spouses
- Alternative housing options for both spouses
Orders for exclusive possession usually apply to spouses who were legally married. If you are in a common-law relationship, it may be more difficult to obtain an order for exclusive possession if your name is not on the deed or lease.
What is a ‘Constructive Trust’ Claim?
Where one or both of the common-law spouses has made a significant contribution to the property of the other, there may arise a right in respect of property based on principals of constructive trust or unjust enrichment. Unjust enrichment is based on the concept that one person is enriched at the expense of another person’s actions, for example if one spouse stayed home to care for the children rather than receiving income from employment outside the home. Unjust enrichment may also arise when a couple is engaged in a joint family venture, but one partner gained an unfair share of the profits.
In family situations, a mutual exchange of benefits by the spouses will not, by itself, deprive a spouse of an unjust enrichment claim. Instead, the benefits received by the common-law spouse making the unjust enrichment claim (called the claimant) may be used to reduce the award to which they are entitled to.
To successfully claim unjust enrichment, three factors must be proved:
- One spouse received an enrichment,
- The other spouse has been deprived or suffered a loss because of it, and
- There is no legal reason for the enrichment.
Once the claimant has proved each of the three elements of unjust enrichment, then the remedy may be either a constructive trust or a monetary award. A constructive trust remedy gives the claimant an interest in the other spouse’s property.
For a judge to order a constructive trust remedy, the claimant spouse must show that:
- there is a causal connection between their contributions and the acquisition (purchase), preservation, maintenance or improvement of the property in question, and
- that a monetary award would not be sufficient.
If the claimant cannot demonstrate that a constructive trust is appropriate, then a monetary order is usually awarded instead. The Supreme Court of Canada has stated that in family situations, when determining the amount of a monetary award for an unjust enrichment claim:
- the Court is not restricted to applying a fee-for-services approach, and
- where the unjust enrichment is best characterized as one party retaining a disproportionate share of assets resulting from a joint family venture, it should be calculated on the basis of the share of those assets proportionate to the claimant’s contribution.
In other words, the Court recognizes that in family situations each spouse may have made extensive but different contributions to the welfare of the other. There is not, however, a presumption that unmarried couples operate as a joint family venture. Such a finding must be based on the specific facts and circumstances of the relationship. Once a claimant can show that the other spouse has been unjustly enriched by the claimant’s contributions, the court must then decide in what proportions to divide the wealth. Consequently, depending on the specific facts in each situation, calculating the value of the claimant’s contributions may not be restricted to considering the claimant to be a person hired on a fee-for-service basis (such as a nanny, cook or gardener) but rather, as a co-venturer or a partner in a joint family venture.
A claim may be made for a constructive trust, giving one partner the right to live in the family home or the right to divide property, if:
- the couple share custody of a child and lived together in a relationship of some permanence, or
- one partner contributed financially to the home by paying part of the mortgage, property taxes, repairs or upkeep, and so on.
Generally speaking, the longer the relationship between unmarried cohabitees or common-law partners the more likely there is a remedy. Obtaining these rights however, usually requires hiring a lawyer and often results in going to court. Division of property in a common-law relationship can be extremely complicated.
Is property division treated different depending whether you are married or just living common-law in Ontario?
The property provisions of the Family Law Act only apply to married couples (both opposite sex and same sex). These provisions do not apply to common-law couples. This outdated aspect of the law can lead to some very unfair results for common-law couples, although other recourse may be available (for example, via a resulting and/or resulting trust claim, or through the relatively new legal construct of ‘joint family venture’). This is a complicated area of law, and one would be well advised to consult with a family lawyer if one believes one has a potential claim.