Family law has the very difficult challenge of dealing with relationships between parties. This includes relationships between parents, between parents and children, and between spouses. Sometimes the relationship involves grandparents or other family members. Family law usually comes into play when there is a breakdown in these relationships. The Family Law Act, the Children’s Law Reform Act and the Divorce Act are the main statutes which apply, however other legislation applies as well.
PARENTS AND CHILDREN
Parents automatically have custody of their children at birth or by adoption. When parents separate there may need to be a change in the custodial arrangement. Depending on the circumstances, the parents may have joint custody, or one parent may have sole custody. It is important to note that not having custody does not mean that the person is no longer a parent. The non-custodial parent can still maintain essentially the same rights with regard to the children, and not having custody does not dictate how much time or involvement a parent may have in the lives of their children. Both father and mother are equally entitled to custody and if they cannot agree on a custodial arrangement either parent can apply to the court for a decision. The court must make decisions with regard to custody based on the best interests of the child.
The children and the parent that the children are not living with are entitled to have access. Access is a child’s right, therefore it is only with good reason that a court will deny a parent access. Access may be denied if there is the possibility of harm to the child. Access can be supervised or unsupervised. There is no set requirement for when, where, or how much access is to take place. Access can be arranged to take into account the unique circumstances of each family.
Every parent has an obligation to support his or her child if the child is unmarried and:
1. under 18; or
2. enrolled in school full-time;
3. unless the child is at least 16 and has withdrawn from parental control.
This obligation applies equally to both parents. The amount of child support to be paid depends on the income of the parent. The amounts are set out in the Child Support Guidelines. Parents may also have to pay a portion of extraordinary expenses related to the children, such as child care, health care, some education expenses, or sports, and other activities. A parent may also be required to keep medical or dental insurance coverage for the child.
The definition of ‘spouse’ differs depending on the issue. Married couples are considered spouses in every aspect of family law. Unmarried couples may be considered spouses if they lived together:
1. for at least 3 years straight; or
2. in a relatively permanent relationship and they are the parents of a child (naturally or by adoption).
This type of relationship is often referred to as ‘common law’.
The breakdown of a spousal relationship can be resolved in one of two ways: separation or divorce.
When spouses separate they may be able to come to an agreement about any outstanding issues, such as child care, support, and distribution of property. The separation agreement can then be filed with the court to ensure that it is binding. If the parties cannot come to an agreement, they can have the matter decided by the court. The process for common law or married spouses is the same, but their entitlements are different. Separation can be dealt with in the Ontario Court of Justice, unless there are issues with regard to property or divorce.
Divorce only applies to married couples. Marriage is the beginning of a specific legal relationship, and divorce is its end. A person cannot remarry without being divorced from all previous marriages. A divorce must be dealt with in the Superior Court of Justice.
People living in common law relationships have essentially the same rights and obligations with regard to support as married couples. Each party has a responsibility to support him/herself. In some circumstances each party may also have a responsibility to support the other. Unlike child support, spousal support is not an automatic entitlement, and it does not have specified guideline amounts. The amount and duration of spousal support will depend on the circumstances of the relationship, such as the income of the parties, the length of the relationship, and the ability of the parties to support themselves. Support issues can be dealt with in either the Ontario Court of Justice, or the Superior Court of Justice, depending on what other issues need to be resolved.
People living in common law relationships do not have the same property rights as married couples. If the parties are married, each spouse is entitled to an equal share of the family property. If parties were not married, each is essentially entitled to his or her own property and/or contribution to the family property. Property issues must be addressed in the Superior Court of Justice, regardless of whether or not the parties are seeking a divorce.
LEGAL ADVICE AND REPRESENTATION
For more information about your rights and responsibilities as a parent or a spouse, contact a family lawyer. If you cannot afford a lawyer, you can apply to Legal Aid Ontario for assistance.
For more information about these issues or family law in general, you can contact the Family Law Information Centre, (FLIC).
The FLIC office in Dufferin County is located on the second floor of the Orangeville Courthouse at 10 Louisa Street, on the second floor.