A marriage contract may address several issues, including:

1. Spousal support and child support
2. Ownership in and division of property
3. How to handle debts and liabilities
4. How to handle future disputes (methods of dispute resolution)
5. The right to direct the education and moral training of their child(ren).

A marriage contract may not address:

1. Custody of or access to the child(ren).
2. Restricting a spouse’s right to equal possession of the matrimonial home.
3. Chastity – A provision in a domestic contract to take effect on separation whereby any right of a party is dependent upon remaining chaste is unenforceable.

If a marriage contract purports to deal with custody and access or limits a spouse’s possessory right to the matrimonial home, that particular provision of the contract will be deemed unenforceable.

A domestic contract, including a marriage contract, will also be deemed to be unenforceable unless made in writing, signed by the parties and witnessed. The validity of a domestic contract, including a marriage contract, may be questioned and the contract ultimately set aside if the parties did not exchange full financial disclosure, obtain or have the opportunity to obtain independent legal advice or if one party was not given ample time to consider the terms of the contract before signing thereby signing the contract under duress or undue influence.

By way of example, if spouse A had a net family property of $100,000 at separation and spouse B had a net family property of $200,000, spouse B would have to pay spouse A one half of the difference between these values, which is $50,000. Neither party may have a net family property of less than zero. A negative net family property is considered zero.

A spouse may deduct from his or her net family property any assets that he or she owned on the date of marriage (date of marriage deductions). For example, if spouse A had a net property of $100,000, but owned $20,000 in RRSPs as of the date of marriage, spouse A would have a net family property of $80,000. Debts must also be taken into account. Using the same example, if spouse A had RRSPs as of the date of marriage in the amount of $20,000 but also had debts of the same amount, spouse A would have a net family property of $100,000.

The one exception to the exclusion of property owned on the date of marriage is the matrimonial home. If either party brings the matrimonial home into a marriage and this property remains the matrimonial home on the date of separation, its value cannot be deducted from the net family property calculation unless this is agreed to in a marriage contract.

There are other potential exclusions that a spouse can claim. The following is a list of property that a spouse may own on the date of separation that does not form party of his or her net family property:

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of marriage.

2. Income from property referred to in paragraph1 above, if the testator or donor has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or right to damages from personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance as defined under the Insurance Act, that are payable on the death of the life insured.

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

7. Unadjusted pensionable earnings under the Canada Pension Plan.

It is important to note that the spouse claiming a date of marriage deduction or excluded property has the onus of proving that the deduction or exclusion is valid. For example, when claiming the value of an RRSP on the date of marriage as a date of marriage deduction, it is important to produce the RRSP statement which substantiates the value of the RRSP on that date. If a spouse claims an asset to be a date of marriage deduction but is unable to prove the value of the asset on the date of marriage, the deduction may be lost.

Need Legal Advice?
For family law advice, please contact one of our family lawyers to schedule your initial legal consultation.

The consultation meeting with a family lawyer is your opportunity to ask questions and learn about your rights and obligations. In order to make this initial meeting productive and meaningful there are some things you can do:

Bring your supporting documents
Bring with you any documents you believe are relevant to your legal issues (i.e. financial documents, a copy of a signed Separation Agreement, if there is one). If you are meeting with a lawyer and your matter is already in the court system, it is particularly helpful for the lawyer if you bring with you copies of all court documents filed, including court Orders made, in the proceeding to date.

Summarize the important events
Prepare in advance of the meeting a history or timeline of important dates and events that you feel are relevant. Having a written chronology of events will help you give the lawyer a brief and concise overview and background of your matter.

List your questions
Prepare a list of questions you want to ask the lawyer. You will receive a lot of new information during the initial consultation meeting, which may overwhelm you. You don’t want to forget specific questions you have for the lawyer.

Take notes
You may wish to take notes during the meeting. Although some law firms will provide you with a written assessment after the meeting, which outlines the issues discussed, you may wish to take your own notes for quick and easy reference should you wish to remind yourself of what the lawyer said during the meeting.

Share all the details
Be honest with the family lawyer. Anything you tell the lawyer during the consultation meeting is confidential, even if you decide not to retain his or her services after the initial consultation. What may not be an important fact to you may be important to the lawyer and could change the legal advice he or she would otherwise give you.

Shop around
Before retaining, ensure that you are comfortable with the lawyer and confident in his or her ability to represent you and your best interests. If you need to consult with a number of different lawyers before retaining, that is your prerogative.

Need Legal Advice?
For family law advice, please contact one of our family lawyers to schedule your initial legal consultation.

Family law files are impossible to time as there are so many factors at play; the parties, the lawyers, the court, and in some cases, forensic accountants, property appraisers, pension evaluators and criminal proceedings. One thing we have learned for sure is when the parties are amicable, things move more quickly.
When parties are on good terms, it is likely that they will settle out of court by way of an agreement. Negotiating outside of court is typically the fastest, and cheapest, method to resolve your family law matter. Of course, for highly complex matters when we are dealing with a long term traditional marriage with children and extensive assets, we expect that it will take longer than an average simple agreement.

On occasion, even negotiating a marriage contract can be tricky and timing depends on the level of complexity and the level of agreement between the parties involved. Even simple matters such as an uncontested divorce can vary in completion time. We of course do everything we can to ensure the divorce moves forward swiftly, however, things will only move as fast as the Court moves, and sometimes they are so backlogged it can take 6 to 8 months to get an uncontested divorce order.

Need Legal Advice?
For legal advice on divorce, please contact one of our divorce lawyers.

Sole custody
One parent (also known as the custodial parent) is responsible for making final decisions affecting the child. It is important for the non-custodial parent to remain an active participant in the child’s life. This requires being proactive in informing oneself about the child’s daily routine, appointments and schedule. The custodial parent should facilitate this by signing all consents and authorizations necessary for the non-custodial parent to speak directly with all professionals involved in the child’s life. This should not be construed as meaning that the parents should not speak with each other and when at all possible, the custodial parent should keep the non-custodial parent informed about such matters. Any court order or written agreement reached by the parties can contain provisions allowing the non-custodial parent to provide input into the decision to be made but ultimately it is the custodial parent who has final say on the matter.

Joint legal custody
Both parents share the decision making power, that is, the parents agree on all issues affecting the child. In situations where the parents are unable or unwilling to communicate effectively with each other, joint legal custody will not be feasible. When litigating custody issues, the courts will ensure that the parents are able to communicate in a manner that is conducive to constructive communication; failing which, sole custody will be awarded to one parent.

Where there is no court order or written agreement to the contrary, the presumption is that the parents share joint legal custody of the child. It is important to note; however, that the Children’s Law Reform Act suspends a parent’s right to exercise custody and the “incidents of custody” where the parties live separate and apart and the child lives with one of the parties with the consent, implied consent or acquiescence of the other party. That is to say, in situations where the child has lived with one parent for a reasonable period of time, so that a status quo has been established, the other parent’s custodial rights may be temporarily suspended, if there is parental conflict that requires a temporary sole custodial arrangement.

Joint physical custody (or shared custody)
Both parents spend relatively equal time with the child (each parent has the child in his or her care and control for at least 40% of the time). In this type of shared custody arrangement, the parties generally agree that they will make decisions affecting the child when the child is in their respective care.

Split custody
Each parent has custody of one or more child.

Access
Deals with how often a parent visits the child. Usually the child resides with the custodial parent since the custodial parent must be privy to the child’s daily routine, activities and appointments. Where the child spends a majority of his or her time is the child’s “primary residence”. Regardless of the custodial arrangement or where the child’s primary residence is, it is important for both parents to spend as much time with the child as possible. Family law legislation stipulates that there should be maximum contact between the child and both parents, provided it is in the child’s best interest. Access schedules are unique to each individual case and are generally best worked out between the parties.

Access not only involves access to the child but access to information regarding the child’s life (appointments, school information, medical information). If one party is denied access to the child and/or is not being informed about the child’s welfare, it is important to address this issue immediately with the other party and if need be, address the issue through the courts. The longer the delay in addressing custodial and access issues, the harder it may be for the complaining party to receive appropriate redress.

Need Legal Advice?
For legal advice on child custody or access matters, please contact one of our family lawyers.

In Ontario, despite the fact that any pet owner would admit to treating their pet like a member of their family, during separation, a pet is considered property, much like the pots and pans. While it is recognized that this seems like an illogical way to deal with pets as you cannot split a pet in half, and in most cases it is simply inappropriate to sell off the family dog and split the proceeds, the law simply hasn’t caught up to the fact that pets are an integral part of a family and should be treated as such. Making a claim for custody of your pet will likely get you nowhere in the Ontario Court system, they simply refuse to deal with such cases stating it is not the Court’s place to decide on the issue of custody of pets.

Keeping your matter out of Court by negotiating a separation agreement is the better course of action if you have “pet issues”. In an agreement you can be as creative as you like, you can treat pets as you would treat children, deciding who will have primary care of your pet, setting up an access schedule and agreeing to financial support for your pet, just keep in mind enforcement of such an agreement through the Courts could be a difficult task. If one party defaults on their responsibilities pursuant to the agreement, the other party is free to seek assistance from the Court, however, when dealing with the pet related clauses of the agreement, the Court has no real jurisdiction to enforce. For the abduction of children, we have the Hague Convention and for enforcement of support we have the Family Responsibility Office, however there is no internationally recognized agreement on pet abduction, nor is there a government agency prepared to assist in the collection of financial support for pets. Don’t get discouraged though; as long as both parties abide by the terms of the agreement, it won’t fall victim to scrutiny by the Courts.

Need Legal Advice?
For legal advice on family law matter, please contact one of our family lawyers.

There is another way
Parties who choose to participate in Collaborative Family Law put their past conflicts aside and find ways through their collaborative lawyers, to find real solutions to meet the emotional, physical and financial needs of the children and themselves. Third party professionals such as family and financial professionals are available to work with the collaborative lawyers and parties to find a team approach to reach a settlement of all matters that will enable the parties to move on with their lives.

Need a Collaborative Family Lawyer?
The lawyers at Stanchieri Family Law have been specially trained in the practice of Collaborative Family Law and are members of the Toronto Collaborative Practice Group, Ontario Collaborative Law Federation. For legal advice on family law matter, please contact one of our collaborative family lawyers.

i. Each party has had independent legal advice

ii. The parties have exchanged sworn financial statements and full financial disclosure

iii. Neither party signed the separation agreement under duress or undue influence

iv. The separation agreement has been duly executed and witnessed.

Divorce
A divorce is a separate concept from separation. A divorce is a series of court filings. The parties do not have to attend court. In order to obtain a divorce the parties must be separated for a minimum of one year, although a party can commence the divorce proceedings at any time. If one party wishes to remarry then he or she must obtain a divorce to do so. Some parties separate and negotiate a separation agreement but never obtain a divorce.

The separation agreement is the more important document when it comes to settling matters arising from separation. Where there are children of the marriage and the issue of child support has not been settled, a court will not grant the parties a divorce until the parties can prove that adequate provisions for the child have been made. This is why it is generally recommended that the parties negotiate and sign the separation agreement to resolve all issues stemming from their separation prior to filing for a divorce.

Need Legal Advice?
For legal advice on family law matter, please contact one of our family lawyers.

Tip #1 – Obtain independent legal advice from a family lawyer
This should be the very first step either party takes. It is recommended that both parties seek independent legal advice in order to ensure they both completely understand what it is they are signing. The best way to ensure this measure is met is for both parties to seek out and retain family lawyers independently. The term “independently” is important. You should not attempt to force your spouse to select a lawyer of your choosing. Also, you and your spouse should not share the same lawyer. If one party refuses to obtain independent legal advice despite the other party’s requests, a waiver should be included in the agreement which states that he/she was advised to seek independent legal advice however he/she chose to waive his/her right in this regard.

Tip #2 – Disclose & exchange financial information
This is the most tedious step in any family law matter, but also the most important. One party cannot reach an agreement if they do not know all the facts. They must be fully informed. This means both parties should complete financial statements and provide all necessary supporting documentation. This disclosure includes documents related to things such as income, property, bank accounts, RRSPs, pensions and debts. It cannot be stressed enough how important this step is. Both parties need to be completely honest during this stage as any future discovery of dishonesty on the part of one party could result in the agreement being set aside.

Tip #3 – Sign freely and not under any duress
Marriage contracts are often most affected by this step. Having your partner sign a marriage contract the day before your wedding could be a very costly mistake. Before any agreement is signed, both parties must have ample time to review and consider the terms of the agreement, and to seek proper legal advice. Putting any unnecessary pressure on the other party to sign an agreement could result in your agreement being set aside in the future. Cutting corners while negotiating any agreement could leave you, and your assets, open to future attack.

Need Legal Advice?
For legal advice on family law matter, please contact one of our family lawyers.

Unlike the adversarial approach in court litigation, there is an emphasis on open communication and a team approach to find ways for the parties to work together to reach a settlement.

When collaborative family law may not work?
If one or both of the parties are not willing to exchange all relevant financial disclosure then the court process will be needed to obtain disclosure orders.
If there is abuse, fear, intimidation or coercion from one spouse to another then this process is not suitable.

If this process does not result in a settlement then the lawyers who represent the parties in the Collaborative process cannot represent them in court.

Looking for a collaborative family lawyer?
Please visit our website to schedule a legal consultation with one of our collaborative family lawyers.