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What is a temporary Court Order?

A temporary Court Order is one which is meant to determine an issue on a temporary as opposed to final basis. It can be changed in certain circumstances and it can be replaced by a final Order.

When can a temporary Order be made?

A temporary Order in a case can be made after a Conference is held on the issue in dispute and there is no resolution of that issue. This does not apply in the case of urgency in which case a temporary Order can be sought by a party without having first attended at a Conference. An example of an urgent situation may be the abduction of a child.

Is it always necessary to seek temporary Court Orders?

It may not be necessary to seek temporary Court Orders if the issues in a family law case can be resolved by agreement either at a Court Conference or out of Court.

Is it possible to change a temporary Court Order?

It may be possible to change a temporary Court Order if there has been what is referred to as a material change in circumstances such that the terms of the temporary Court Order may no longer be appropriate.

What are the costs involved in obtaining a temporary Court Order?

The costs of seeking a temporary Court Order may be significant as this will require the bringing of a Motion to the Court which will in turn require the preparation of Affidavit evidence.

Is there any risk of having to pay the costs of the other party in the event that the request for a temporary Court Order is not successful?

There is always the possibility of the Court requiring the losing party to pay the costs of the successful party at a Motion. In order to try to avoid having to pay costs, and in order to increase your chances of having the opposing party pay your costs, it is advisable to serve an Offer to Settle with reasonable terms prior to the hearing of the Motion as the Court may then take this into account in determining the issue of costs.

What are some of the issues that may need to be dealt with by way of temporary Court Orders?

It may be necessary to seek a temporary Court Order in the following scenarios:

  1. Non-payment of child and/or spousal support where there is need;
  2. Overholding of a child following an access visit (i.e. not returning the child to the other parent);
  3. Where a restraining Order is needed;
  4. Imminent risk of one spouse depleting a significant asset.

How do you know if you should be pursuing a temporary Court Order?

Every case is different with its own set of facts. It is advisable to speak with a lawyer regarding your specific fact situation in order to obtain advice specific to your case.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact a local family lawyer)

What is the Family Responsibility Office (“FRO”)?

FRO is a government agency which enforces child and spousal support Court Orders.

Is it necessary to have a support Order enforced through FRO?

If the support recipient agrees, then it is not necessary to have a support Order enforced through FRO and the support may be paid between the parties directly. If the support Order is already registered with FRO, it will be necessary to file a Notice of Withdrawal in order to remove the Order from enforcement. If the support recipient wishes to re-register the Order with FRO they may do so. It is important for a support recipient to obtain legal advice prior to making the decision to remove their support Order from FRO.

What happens if there is a written agreement, but not a Court Order, for support?

A written agreement can be filed with the Court and a Support Deduction Order will be made and sent to FRO such that FRO will enforce the agreement for support as a Court Order. This process will involve the swearing of an Affidavit and filing it with the Ontario Court of Justice. A lawyer can assist with this process.

What happens if there are arrears of support?

After a support Order is registered with FRO any arrears which may accrue are recorded by FRO and FRO may take further enforcement measures such as the suspension of a defaulting payor’s driver’s licence or they may commence a default proceeding.

On a practical basis how does FRO enforcement work?

The support payor will either remit the support payments directly to FRO who will then remit them to the support recipient or FRO will send a garnishment notice to the support payor’s employer who will be required under the law to remit the support amount, deducted from the payor’s pay, to FRO who will then remit the payments to the support recipient.

Can all of a person’s pay be garnished to satisfy the enforcement of a support Order?

Only up to 50% of a person’s pay may be garnished in order to satisfy the enforcement of a support Order.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact a local family lawyer.)

Retirement is an important issue that is too often overlooked in Family Law disputes.  There are different vehicles a spouse may use to save for retirement such as personal savings, Registered Retirement Savings Plans (RRSP’s), Tax Free Savings Accounts (TSFA’s) and pension plans through employment.  The above methods of saving are all viewed as assets for the purposes of determining a party’s net family property and eventually equalization under the Family Law Act.

A spouse’s pension is a unique piece of property within the context of family law as it is both a potential source of income for the purposes of support as well as a piece of property.  For the most part, pension issues are reserved for spouses who are legally married and for whom property equalization is at issue and as such that is where we will focus this review.

The Ontario Family Law Act incorporates Section 67.2 of the Ontario Pension Benefits Act which sets out that for family law purposes, the valuation of a pension is to be determined by the pension plan administrator.  The administrator will determine an imputed value of the pension for family law purposes which takes into account the value of the pension on the date of marriage (if it was in existence) subtracted from the value of the pension on the date of separation in order to determine what the actual value is for the purposes of equalization under Section 5 of the Family Law Act.  This imputed amount also does not take into account the tax considerations of the pension on the relevant dates so a tax calculation will have to be done. In some cases it is necessary to retain the services of an actuary to value a pension; however, this will vary depending on the pension plan.

It is good practice to request the pension valuation early on in the process to not delay the ability to determine the party’s net family property.

The issue of spousal support is also important when dealing with the issue of retirement.  Spousal support clauses should take into consideration that a payor’s income will likely decrease upon retirement. Spouses receiving spousal support should be preparing for this eventuality and planning accordingly as they will have a hard time convincing a court that their former spouse should not be allowed to retire, provided that their age and other factors warrant the retirement.  When possible, agreements reached dealing with spousal support that do not have an end date should set out specifics with regard to material changes in circumstances such as retirement and what happens to ongoing support when a change occurs.

A pension that has been included for the purposes of equalization can still be used as a source of income for the purpose of support.  Although technically double dipping, a court can find that the payee still has a need and can look at the pension income for support purposes.  On the other hand, Courts have also found that spouses who received equalization payments and do not save or invest the funds for the future may not be able to receive support based on the payor’s pension income.

The moral of the story is that retirement issues should be taken into consideration when support is for an indefinite duration and a pension is involved.

Download a PDF copy of this article: Pensions and Retirement in Family Law.docx (August 13, 2015) (PDF)

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law.  Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact a local family lawyer for a free consultation).

In Ontario, the treatment of property division is presumptively different depending on whether or not a couple is legally married.

Married couples are entitled to an equalization of their net family property (“NFP”) upon the breakdown of the marriage in accordance with the Family Law Act, while non-married persons do not have a legislated entitlement to property division under the Family Law Act 1 and must instead rely on Judge made common law.

Married Persons

When considering property division for legally married persons there are two important dates. The first date is the day of marriage. The second date is the exact day of separation. Both parties are required to swear a Financial Statement, which is a Court form, outlining all of their respective assets and debts on both of the aforesaid two dates. This includes assets such as business interests, the matrimonial home, any pension, bank account values, RRSP values, to name a few. Complex property often requires the assistance of an expert to value a party’s interest.

Dividing Assets During a Divorce

The Family Law Act sets out the time during which a party seeking a claim for equalization has to bring that claim forward. The time to bring the claim runs out at the earliest of six (6) years from the date that the parties separated, two (2) years from the date a divorce order was granted, or six (6) months after the death of one of the spouses 2. This is known as a three part limitation period.

The values at the date of marriage are important as the Family Law Act takes into account any assets or debts that were brought into the marriage. Such values are known as “deductions” and there are specified rules for how such amounts are treated. If, for example, a spouse held $25,000.00 in their bank account on the date of marriage, that amount would be deducted from their net family property by $25,000.00 for the purpose of equalization, regardless of whether that amount still exists on the date of separation. The matrimonial home is treated differently from other assets and a person who owned a matrimonial home on the date of marriage should advise their lawyer of this fact, so that the special treatment rules under the Family Law Act are carefully considered to determine whether a deduction applies to them based on their facts.

The Family Law Act also allows for exemptions for certain property such as gifts, inheritances, damages from personal injury and life insurance proceeds acquired during the course of the marriage 3. Such categories are known as “exclusions” and are treated differently than deductions. As one example only, exclusions must exist on the date of separation in order for a person to obtain a credit, so to speak, unlike the above noted deductions.

A claim can also be made that one party is entitled to either a smaller or larger share of the net family property. The threshold needed to make this claim is often quite high and the court looks at a variety of factors including, but not limited to, a spouse intentionally depleting their property, a spouse incurring debt in bad faith, or a written agreement entered into between the parties. These are known as section 5(6) exceptions4.

 

Non - Married Persons Who Have Lived Together In A Relationship Of Some Permanence (Also Known As “Common Law”)

As stated above, persons who are not legally married do not have a legislated entitlement to a division of family property; however an unjust enrichment or trust claim can be made to attempt to achieve similar results. These claims usually involve one party alleging that the other party was unjustly enriched through their actions and as such is entitled to at least some part of the property held in the other party’s name. Such claims are dependent on the Judge made common law, and thus a person who is not legally married, but who has lived in a relationship of some permanence, should speak with a lawyer to seek advice as to whether their facts may entitle them to Judge made protection, in terms of property division, under the Judge made common law.

Summary

Both legally married persons and persons who are not legally married but living together in a relationship of some permanence have the legal right to pursue property division upon the ending of their relationship. The results applicable will obviously vary depending on their unique facts; however what is clear is that if you fall into one of the two above noted categories you need to speak with a lawyer, upon the breakdown of your relationship, to protect your legal rights.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law.

1 Family Law Act, RSO 1990, c F.3 at s. 1 & s. 5
2 Family Law Act, RSO 1990, c F.3 at s. 7(3)
3 Family Law Act, RSO 1990, c F.3 at s. 4(2)
4 Family Law Act, RSO 1990, c F.3 at s. 5(6)

In family law matters the Divorce Act1 is the statute that enables married persons to make claims for child and spousal support, while parties who are not married can make similar claims by relying on the Family Law Act2.

Child Support

In Ontario, the Child Support Guidelines3 (CSG) (unmarried parties) and the Federal Child Support Guidelines4 (FCSG) (married parties) provide the starting point for any discussion with regard to child support entitlement and quantum. These statutes in essence mirror one and another, however, each deal with different jurisdictions.

Both the FCSG and the CSG contain tables which set out how much child support is owed by a payor parent. The quantum of support is determined by applying the relevant table in the CSG or FCSG in relation to the payor parent’s income and the number of children for whom child support is payable. There are of course exceptions to the rules, such as when one parent can prove undue hardship or where a parent earned over a certain income, but for the most part, the table amount is the golden standard for determining child support amounts.

When one parent has the child(ren) sixty one percent of the time or more, the other parent will likely be required to pay 100 per cent of the available child support under the FCSG or CSG. When parents share parenting time such that the child(ren) spend between forty to forty nine percent of the time with the "access parent", it is possible that the amount of support paid by the parent with less access time will be reduced to reflect the increased costs of this increased access parenting arrangement.

In cases where the parents each have the children for equal amounts of time (50/50), a set-off amount is normally applied by looking at what each parent would pay under the applicable table, with the result that the higher earning parent then pays a reduced amount to the lesser earning parent.

Child support is a mandatory obligation and ordinarily only once a child no longer qualifies for support under the respective statute will the obligation for the payor parent cease, unless of course the parties agree otherwise.

Spousal Support

While entitlement, quantum and duration of child support is relatively simple to determine, the opposite is often true for spousal support.

Claims for Spousal Support are often determined by applying the Spousal Support Advisory Guidelines (SSAG)5. Although not a statute or regulation, these guidelines have been applied in countless cases throughout Canada and as such hold a great deal of influence in the determination of spousal support. These guidelines examine the factual circumstances of both the relationship and its breakdown. Such factors include whether there were any children of the relationship, the length of the relationship, the roles of each party during the relationship, the incomes of both parties, and the means of both parties to be self sufficient post separation, to name a few.

Unlike child support which is mandatory, spousal support is only granted once an entitlement has been proven and the duration and amount of any such payments will be determined by applying the standards enumerated in the case law and the SSAG.

Of course, every case is different, so any person either seeking child/spousal support, or any person being asked to pay child/spousal support, should speak with a qualified lawyer in the Province where they reside.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law).

1 Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.) at Section 15.1
2 Family Law Act, RSO 1990, c F.3 at Part 3
3 Child Support Guidelines, O Reg 391/97
4 Federal Child Support Guidelines, SOR/97-175
5 Spousal Support Advisory Guidelines: A Draft Proposal (Ottawa, Dept. of Justice: 2005)
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