Family Law Information
This page includes general information on various family law topics:
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There are three types of custody: joint custody, sole custody and shared custody. Generally, the non-custodial parent is entitled to have access to the child or children.
Child Support and Extraordinary Expenses
The non-custodial parent is required to pay periodic monthly child support in accordance with the Federal Child Support Guidelines tables. The Guidelines table indicate how much the non-custodial parent is required to pay the custodial parent for child support, based on the non-custodial parent’s gross annual income and the number of children.
In addition to the basic amount of child support, both parents are required to contribute to the child’s or children’s extraordinary expenses in proportion to their incomes. Extraordinary expenses are outlined in section 7 of the Guidelines. They include childcare (required in order for the custodial parent to be employed) and children’s educational expenses.
Guidelines for spousal support are still being developed. In the meantime, spousal support is determined on a case-by-case basis. Lawyers and judges refer to reported cases that have similar facts, and they consider the parties’ financial statements to determine a fair amount of spousal support.
Property Division and Net Family Property Equalization
Each of the parties must prepare a sworn financial statement (discussed below) that lists all assets and liabilities, as of the date of marriage, the date of separation and the date of the financial statement. The lawyer for each party will calculate each party’s net family property, meaning net worth, on the separation date.
The separation date, which is also referred to as the valuation date, is important for two reasons:
1. You must be separated for a period of at least one year to be eligible for a divorce judgment.
2. The separation date is the date upon which your net family property is calculated.
The net family property takes into account the assets and liabilities you had on your date of marriage, and any excluded property such as property received by way of gift or inheritance.
Net family property equalization means that the party with the greater net family property pays the party with the lesser net family property half of the difference between the two parties’ net family properties.
Property division is the physical division of household furnishings, motor vehicles, real estate, etc., between the parties.
If there are joint assets that are to be kept by one party, that party is generally required to buy the other party’s half of the joint asset at fair market value. Generally, any such buy-outs occur after the net family property equalization is calculated, and the buy-out amount is added or subtracted from the net family property equalization amount.
A separation agreement is a global settlement of all issues. It is negotiated between the parties through their respective solicitors.
It is important that both parties accurately prepare and exchange financial statements at the early stages of the negotiation of the separation agreement. Your solicitor requires the full financial disclosure of both you and your spouse to properly advise you of your rights and obligations in all respects of the global settlement. You should not sign a separation agreement without the exchange of sworn financial statements from both parties.
Litigation (going to court) may be necessary to resolve issues between the parties, when the parties are unable to amicably reach a global settlement, or when one party is unreasonable or uncooperative.
The litigation process starts with an application. The respondent has 30 days to file and serve an answer. The respondent may make claims against the applicant, and the applicant will have 10 days to file a reply.
Except in the case of an emergency, such as if one party is denying the other party access to their children, the first court appearance is the case conference. At the case conference, both parties and their solicitors present their positions to a judge, who is not the same judge who will hear any part of the application. The objective of the case conference is to encourage the parties to settle all of the issues or at least narrow down the issues. The documentation and submissions in and for the case conference are without prejudice and will not affect any other aspect of the litigation if a settlement is not reached.
During the course of an action, there are likely several issues that must be resolved on an interim basis prior to the trial, such as support and custody. These issues are dealt with by way of a motion. One party initiates a motion by serving and filing a notice of motion and supporting affidavit material. The responding party will also file an affidavit. Motions can be done on fairly short notice, even within a few days.
Once all court documents are filed, the parties may conduct questioning of the opposite party. The parties’ lawyers will arrange for a mutually agreeable location, date and time for this. Each party will be questioned under oath by the lawyer of the opposite party.
Once the questioning of each party is complete and all undertakings to provide further information and/or documents are complied with, the action can proceed to the pre-trial stage.
Usually, the applicant’s lawyer will serve and file a formal notice that the matter is ready for trial, called a notice of readiness for trial. A pre-trial conference is then scheduled. The parties and their lawyers appear before a judge, who will not be the trial judge. The pre-trial conference is a final effort to encourage the parties to settle the issues, or at least narrow down the issues as much as possible.
If the action is not settled at the pre-trial conference, the parties proceed to trial. Witnesses may be called to present evidence. Various documents which have been made exhibits in the action are presented. Each party can question witnesses called by the other party. Transcripts from the questioning may also be referred to. Once all the evidence has been presented and the lawyers have made closing arguments, the judge will make his or her judgment.
Generally, the winning party may be awarded costs. The losing party will pay some or all of the winning party’s legal fees and disbursements.