Ana Kraljevic Law Firm

FAMILY LAW

family lawyers in etobicoke

As Tolstoy said it best, no two families are alike and I approach every case with this same philosophy. There are many ways to resolve family law issues that depend on what the objectives are as well as different dispute resolution mechanisms that may be appropriate based upon the individual circumstances.  At the initial consultation, we will sit down and discuss what the various issues are, possible outcomes, and whether it would be best to proceed by way of an out-of-court settlement (i.e. a domestic contract), mediation or arbitration, or court proceedings.

I have extensive experience negotiating and drafting domestic contracts but I am also fully prepared to take the matter to court and commence an application if required.   

We provide legal services and advice in many family law matters, including:
  • Divorce
  • Property / Asset Division
  • Spousal support
  • Child support
  • Decision-making
  • Guardianship
  • Access
  • Adoption
  • Separation agreements
  • Cohabitation / marriage agreements
  • Foreign divorce opinion letter 
  • Trials and hearings

Legal Aid Certificates will be accepted on a discretionary basis. Please ensure you have a certificate ready before you speak to us.

Message US

property division family lawyer toronto
Property Division

Couples who are separating may have assets that require an experienced lawyer to determine the fairest way equalizing the Net Family Property (NFP).

child support family law toronto

Ensure that your children’s best interests are taken care of by speaking to a lawyer for specific advice about child support and s. 7 expenses. 

spousal support law firm toronto
Spousal Support

The answers to questions regarding spousal support are always factually driven. It is crucial to obtain advice from a lawyer who understands the nuances of family law in this area.

cohabitation agreement family lawyer
Cohabitation Agreement

These types of agreements all you to set out in a contract how you will divide your property in the event of a marriage/relationship  breakdown.  

separation agreement lawyer toronto
Separation Agreement

A well-drafted separation agreement that settles all the issues arising from the dissolution of the relationship is a preferable alternative to going to court.  Let us help you draft one that achieves your goals.

mediation and arbitration
Mediation/Arbitration

We are strong proponents of clients settling matters as amicably and cost-effectively as possible.  In these cases, Mediation and Arbitration may be the best route – especially when children are involved and former spouses need to co-parent and communicate with one another.

How Our Fees Work

  • All new cases will require an initial retainer which will be held in trust and applied towards all future billings and disbursements.
  • Retainers can be replenished in increments that suit your budget.
  • There is full transparency with billing. Invoices will be sent promptly with an itemized list of everything that was done on your case as well as a breakdown of disbursements (i.e. fees for process serving and couriers, etc.)
  • We bill only for the actual time spent working on your case.
  • Time is rounded down to the nearest minute and we don’t charge for brief e-mails and telephone calls.

Unbundled Services

Customized Retainer

We understand that sometimes you would prefer to have a professional handle your matter from start to finish but that your budget may not allow for a traditional, full-scope retainer where a lawyer completes everything on the file.  In these cases, you may find download seal app for Android that it is beneficial for you to have us draft the court documents but appear in court pro se (on behalf of yourself), or vice versa.  We will work with you to create a customized limited scope retainer where we define the parameters from the outset so that you know exactly what to expect when you receive your invoice. 

Hourly Rates or Flat-Fee

Sometimes it is best to proceed on an hourly basis and other times we can anticipate how much work is involved and we will offer a flat rate.  Typically we will offer a flat rate to prepare separation agreements, cohabitation agreements, or opinion letters. 

F.A.Q.

Got Questions? We have the answers!

 

The matrimonial home is treated differently from other types of property in family law, so much so that it has its very own section in the Family Law Act. Unlike other types of property in which only the growth in value of the property from the date of marriage is divided, the entire value of the home is divided equally between two spouses as of the date of separation (“valuation date”). What this means is that the spouse who comes into the marriage with a home that is also the matrimonial home at the valuation date will not be permitted to deduct any debts or liabilities attached to the home as of the date of marriage.  The result of the application of this rule is that the spouse who owned the home prior to the marriage does not receive a credit for the value that existed as of the date of the marriage.

In highly contentious family matters involving children, either party or a judge may decide that it would in the children’s best interests that they have their own lawyer to represent them during the court process. In that case, the court may make an order pursuant to s. 89 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to represent the child’s views and preferences in dealing with issues concerning parenting time, decision-making responsibility or contact cases. If there are specific clinical concerns to be addressed then the OCL may also assign a clinician to assist. The clinician is a social worker with a Masters in Social Work. The clinician and the lawyer will work together and the clinician will prepare an affidavit about the child’s views and preferences.

In other cases, the Office of the Children’s Lawyer may assign a clinician to conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). They will meet with the children, the parents, and the children’s collaterals (i.e., teachers, pediatricians, etc.) to determine the children’s views and preferences. They may be asked to write a voice of the child report or a more detailed Children’s Lawyer Report.

The jurisdiction where the marriage took place does not determine where you can apply for divorce. According to section 3(1) of Canada’s Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), a court in any province has jurisdiction to hear and determine a divorce if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding. This means that even if your spouse has not been ordinarily resident in Ontario for at least one year prior to filing an application you can still apply for a divorce if you meet that criteria.

 

Unlike child support, spousal support is not mandatory and there is no presumption in favour of spousal support. However, the state of the law post-Bracklow does arguably create a low threshold for entitlement.

The basis of entitlement for spousal support can either be compensatory, non-compensatory, contractual, or a combination of the two. The Spousal Support Advisory Guidelines do not provide advice as to whether a spouse is entitled to support. The purpose of the SSAGs is to provide a range of different scenarios for spousal support for spouses once the threshold issue of entitlement has been determined. Only after the issue of entitlement has been decided can the analysis then turn to the more granular aspects of spousal support such as the amount, whether it is to be paid in lump sum or periodic sum, and the length of time over which it is to be paid.

The two authorities that are often relied upon to determine entitlement to spousal support are Moge and Bracklow. Moge created a broad basis for compensatory claims for spousal support on the grounds that one spouse suffered an economic disadvantage while the other spouse was conferred with an economic advantage due to the roles played during the marriage. The oft-cited example is the traditional marriage in which the wife stayed at home to raise the children while the husband maintained full-time employment and was able to advance his career.

If a spouse is not able to make the argument that he or she incurred an economic disadvantage related to the marriage, Bracklow provided for the possibility of a non-compensatory claim based on need or hardship created by the loss of the marital standard of living. Accordingly, if one spouse earned significantly more than the other spouse during the marriage then the disparity in their respective incomes will create an entitlement to some support. As such, even if a marriage was relatively short, say only two years, the resulting decline in the standard of living for one spouse may arguably present an entitlement to some time-limited support for a transitional period. After that, the spouse will likely be expected to become self-sufficient.

In Ontario, you are considered to be living in a common law relationship if either of the two criteria apply to you:

  1. you have cohabitated (lived together in a romantic relationship) with another person (their gender does not matter) for a period of at least three years.

OR

  1. you are cohabitating with another person in a relationship of some permanence and you and your partner are the natural or adoptive parent of a child.  (If you have a child, the length of time you live together does not matter.)

It is key to point out that this definition of “common law” for the purposes of governing all aspects of family law such as child support and domestic contracts, etc., is totally distinct from the definition of common law for tax purposes. According to the Income Tax Act, you only have to be living with your common-law partner for 12 consecutive months, or have a child with them (by birth, adoption, or similar) to be considered common-law for tax purposes.

The Child Support Guidelines is federal legislation which prescribes how much child support is payable according to the gross annual income of the payor parent. It provides uniformity, predictability, and fairness to family law proceedings. There is a strong presumption in favour of the table amount because these amounts are proportionate to the payor’s gross income and predicated upon average family circumstances. However, this is a rebuttable presumption that can be challenged in certain circumstances. Sometimes, a parent cannot afford to pay the table amount of support prescribed by either Sections 3 to 5, 8 or 9 of the Guidelines because of special circumstances. This may be because of the following reasons:

  • The spouse has an unusually high level of debt incurred to support the other spouse and their children prior to the separation;
  • The spouse has unusually high expenses in relation to exercising parenting time to a child;
  • The spouse has a legal duty under a judgment, order, or written separation agreement to support any person;
  • The spouse has a legal duty to support a child, other than a child of the marriage, who is:
  1. under the age of majority, or
  2. the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
  • The spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

If any of the foregoing circumstances apply, a parent can apply to the court to make an order for an amount of child support that is different from the table amount, otherwise known as making a claim for “undue hardship” under Section 10 of the Child Support Guidelines.

However, even if a spouse meets test for undue hardship, a court can deny an application for a different table amount if that spouse would ultimately have a higher standard of living than the other spouse. Generally, in order to compare each spouse’s standard of living to make the determination if a spouse qualifies, the court will use the comparison of household standards of living test set out in Schedule II of the Child Support Guidelines.

If you believe that you are eligible to make a claim for undue hardship because one of the enumerated special circumstances applies in your situation, then it is best to speak to a lawyer who can advise you on whether you are likely entitled and how to best make that claim.

Section 31 of the Family Law Act states that every parent has an obligation to provide support, to the extent, that the parent is capable of doing so, for his or her child who is under the age of majority, is enrolled in a full-time program of education, or is unable to withdraw from the charge of his or her parents due to illness, disability, or other cause.

In situations where a parent is evading his or her child support obligations by being intentionally under-employed or unemployed, the court may impute an amount of income to a spouse it considers appropriate pursuant to s. 19(1)(a) of the Federal Child Support Guidelines. This is to give effect to the policy objectives underpinning the Guidelines which is to ensure that spouses honour their “joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.” The party who is requesting the court to impute income bears the onus of establishing the basis for that request.

There is an exception where the under-employment or unemployment is required by the needs of the child, such as in the case of a disabled child, or by the reasonable educational or health needs of the spouse. It is not necessary for the court to make a finding of bad faith or an attempt to frustrate support obligations pursuant to s. 19(1)(a). All that the court needs to find in order to meet the definition contemplated by s. 19(1)(a) is that the parent is earning less than what he or she in capable of earning. For example, courts may impute income to a spouse who earns income which tends to be variable, such as a self-employed business owner, who suddenly experiences a precipitous decline in income as soon as court proceedings commence. The courts may also decide to impute income to a spouse who decides to go back to school if their career aspirations are unrealistic or would likely be unproductive. Accordingly, if the spouse went back to school to pursue a degree in a niche industry where jobs are scarce or where there are poor prospects for remuneration, the court will likely find that he has behaved unreasonably and will not excuse him from his child support obligations.  

Once the court decides to impute income, it must then turn the analysis to what amount of income would be reasonable in the circumstances, taking into account the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.

The law regarding mobility cases was settled in the seminal case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, a Supreme Court of Canada decision which summarized the law as follows:

  1.       The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

  1.       If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

  1.       This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

  1.       The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

  1.       Each case turns on its own unique circumstances.  The only issue is the best interest of the child in the particular circumstances of the case.

  1.       The focus is on the best interests of the child, not the interests and rights of the parents.

  1.       More particularly the judge should consider, inter alia:  

(a)  the existing custody arrangement and relationship between the child and the custodial parent;

(b)  the existing access arrangement and the relationship between the child and the access parent;

(c)   the desirability of maximizing contact between the child and both parents;

(d)  the views of the child;

(e)  the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f)   disruption to the child of a change in custody;

(g)  disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

With respect to point #4, Gordon v. Goertz reviewed previous jurisprudence, including Carter v. Brooks, 1990 CanLII 2623 (ON CA). The Court of Appeal in Carter v. Brooks determined that a custodial parent has no presumptive “right” to remove a child from his or her habitual jurisdiction by virtue of having the status of the custodial parent. Rather, the court held that while a “reasonable measure of respect” should be accorded to the views of the custodial parent, these views are only relevant to the extent that they affect the best interests of the child – which is the paramount and only concern. The principle that emerged from this mobility case is that the courts are not obliged to defer to the custodial parent as a matter of law and there is no “right to remove” a child. Accordingly, if the court determines that it would not be in the child’s best interests to permit the move, then an order preventing a change in the jurisdiction will likely be granted. However, each case is determined on its merits so it is best to speak to a lawyer who can properly advise you.

In Ontario, common-law couples do not have the same rights as married spouses. Unlike their married counter-parts, there is no legislation which governs the division of property for unmarried spouses. For example, common-law couples are not entitled to an equalization of the net family properties as set out in Part One of the Family Law Act. However, because many common-law couples accumulate property during the relationship and because their relationship may reflect similarities to that of a marriage-like union, the law has developed to remedy any possible unjust result which may occur when one spouse receives the benefit of the other spouse’s financial and labour contributions.

There are two legal tests which may be applied to determine whether a common-law spouse is eligible for an interest in property held by the other spouse upon separation: the test for “unjust enrichment” and 2) whether the common-law relationship meets the test for a “joint family venture.”

The principle of unjust enrichment emerged from the courts of equity. It is not a family law concept although it has been applied to family law in many instances. Its provenance comes from the Roman legal phrase “no one should be benefitted at another’s expense.”

In order to meet the test for unjust enrichment, a party must prove the following elements:

  1. An enrichment;
  2. A corresponding deprivation; and 
  3. The absence of a juristic reason for the entitlement.

If you meet the test for unjust enrichment then the court must then decide what the appropriate remedy would be under the circumstances. The court will either award a monetary award, commonly referred to as a quantum meruit remedy, or, if there is a sufficient causal link between the spouse’s contributions and the accretion in the wealth of a specific property, then the court may decide to grant a spouse a proprietary interest in the property – or what is normally referred to as a constructive trust.

In order for a common-law relationship to be considered a “joint family venture” the court will look to see if the following four elements exist:

  1. the mutual effort exerted by the parties
  2. the economic integration of the couple;
  3. the actual intent of the spouses; and
  4. the priority of the family within the relationship.

Frequently Asked Questions

I purchased the home that my former spouse and I were living in during the marriage. Do I still need to give half of the proceeds of sale to my spouse if I sell it?

The matrimonial home is treated differently from other types of property in family law, so much so that it has its very own section in the Family Law Act. Unlike other types of property in which only the growth in value of the property from the date of marriage is divided, the entire value of the home is divided equally between two spouses as of the date of separation ("valuation date"). What this means is that the spouse who comes into the marriage with a home that is also the matrimonial home at the valuation date will not be permitted to deduct any debts or liabilities attached to the home as of the date of marriage.  The result of the application of this rule is that the spouse who owned the home prior to the marriage does not receive a credit for the value that existed as of the date of the marriage.

What is the OCL (Office of the Children’s Lawyer) and should I request this appointment in my court case?

In highly contentious family matters involving children, either party or a judge may decide that it would in the children’s best interests that they have their own lawyer to represent them during the court process. In that case, the court may make an order pursuant to s. 89 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to represent the child’s views and preferences in dealing with issues concerning parenting time, decision-making responsibility or contact cases. If there are specific clinical concerns to be addressed then the OCL may also assign a clinician to assist. The clinician is a social worker with a Masters in Social Work. The clinician and the lawyer will work together and the clinician will prepare an affidavit about the child’s views and preferences.

In other cases, the Office of the Children’s Lawyer may assign a clinician to conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). They will meet with the children, the parents, and the children’s collaterals (i.e., teachers, pediatricians, etc.) to determine the children’s views and preferences. They may be asked to write a voice of the child report or a more detailed Children’s Lawyer Report.

I was married for a short period of time. Do I still have to pay spousal support? If so, for how long?

Unlike child support, spousal support is not mandatory and there is no presumption in favour of spousal support. However, the state of the law post-Bracklow does arguably create a low threshold for entitlement.

The basis of entitlement for spousal support can either be compensatory, non-compensatory, contractual, or a combination of the two. The Spousal Support Advisory Guidelines do not provide advice as to whether a spouse is entitled to support. The purpose of the SSAGs is to provide a range of different scenarios for spousal support for spouses once the threshold issue of entitlement has been determined. Only after the issue of entitlement has been decided can the analysis then turn to the more granular aspects of spousal support such as the amount, whether it is to be paid in lump sum or periodic sum, and the length of time over which it is to be paid.

The two authorities that are often relied upon to determine entitlement to spousal support are Moge and Bracklow. Moge created a broad basis for compensatory claims for spousal support on the grounds that one spouse suffered an economic disadvantage while the other spouse was conferred with an economic advantage due to the roles played during the marriage. The oft-cited example is the traditional marriage in which the wife stayed at home to raise the children while the husband maintained full-time employment and was able to advance his career.

If a spouse is not able to make the argument that he or she incurred an economic disadvantage related to the marriage, Bracklow provided for the possibility of a non-compensatory claim based on need or hardship created by the loss of the marital standard of living. Accordingly, if one spouse earned significantly more than the other spouse during the marriage then the disparity in their respective incomes will create an entitlement to some support. As such, even if a marriage was relatively short, say only two years, the resulting decline in the standard of living for one spouse may arguably present an entitlement to some time-limited support for a transitional period. After that, the spouse will likely be expected to become self-sufficient.

Can I obtain a divorce in Canada if I was married in a foreign country?

In highly contentious family matters involving children, either party or a judge may decide that it would in the children’s best interests that they have their own lawyer to represent them during the court process. In that case, the court may make an order pursuant to s. 89 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to represent the child’s views and preferences in dealing with issues concerning parenting time, decision-making responsibility or contact cases. If there are specific clinical concerns to be addressed then the OCL may also assign a clinician to assist. The clinician is a social worker with a Masters in Social Work. The clinician and the lawyer will work together and the clinician will prepare an affidavit about the child’s views and preferences.

In other cases, the Office of the Children’s Lawyer may assign a clinician to conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). They will meet with the children, the parents, and the children’s collaterals (i.e., teachers, pediatricians, etc.) to determine the children’s views and preferences. They may be asked to write a voice of the child report or a more detailed Children’s Lawyer Report.

I just got a new job that pays more and would require me to move ten hours away from my ex. My ex and I are separated but the children live with me full-time. My ex refuses to allow me to move with the children and is applying for an order to restrain me from moving. Will the court prevent me from moving?

The law regarding mobility cases was settled in the seminal case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, a Supreme Court of Canada decision which summarized the law as follows:

      The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

      If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child's needs and the ability of the respective parents to satisfy them.

      This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

      The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent's views are entitled to great respect.

      Each case turns on its own unique circumstances.  The only issue is the best interest of the child in the particular circumstances of the case.

      The focus is on the best interests of the child, not the interests and rights of the parents.

      More particularly the judge should consider, inter alia:  

(a)  the existing custody arrangement and relationship between the child and the custodial parent;

(b)  the existing access arrangement and the relationship between the child and the access parent;

(c)   the desirability of maximizing contact between the child and both parents;

(d)  the views of the child;

(e)  the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f)   disruption to the child of a change in custody;

(g)  disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

With respect to point #4, Gordon v. Goertz reviewed previous jurisprudence, including Carter v. Brooks, 1990 CanLII 2623 (ON CA). The Court of Appeal in Carter v. Brooks determined that a custodial parent has no presumptive “right” to remove a child from his or her habitual jurisdiction by virtue of having the status of the custodial parent. Rather, the court held that while a “reasonable measure of respect” should be accorded to the views of the custodial parent, these views are only relevant to the extent that they affect the best interests of the child – which is the paramount and only concern. The principle that emerged from this mobility case is that the courts are not obliged to defer to the custodial parent as a matter of law and there is no “right to remove” a child. Accordingly, if the court determines that it would not be in the child’s best interests to permit the move, then an order preventing a change in the jurisdiction will likely be granted. However, each case is determined on its merits so it is best to speak to a lawyer who can properly advise you.

 

I cannot afford to pay the table amount of child support under the Child Support Guidelines. Can I apply for an order for child support that is different from the table amount?

The Child Support Guidelines is federal legislation which prescribes how much child support is payable according to the gross annual income of the payor parent. It provides uniformity, predictability, and fairness to family law proceedings. There is a strong presumption in favour of the table amount because these amounts are proportionate to the payor’s gross income and predicated upon average family circumstances. However, this is a rebuttable presumption that can be challenged in certain circumstances. Sometimes, a parent cannot afford to pay the table amount of support prescribed by either Sections 3 to 5, 8 or 9 of the Guidelines because of special circumstances. This may be because of the following reasons:

The spouse has an unusually high level of debt incurred to support the other spouse and their children prior to the separation;
The spouse has unusually high expenses in relation to exercising parenting time to a child;
The spouse has a legal duty under a judgment, order, or written separation agreement to support any person;
The spouse has a legal duty to support a child, other than a child of the marriage, who is:
under the age of majority, or
the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
The spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

If any of the foregoing circumstances apply, a parent can apply to the court to make an order for an amount of child support that is different from the table amount, otherwise known as making a claim for “undue hardship” under Section 10 of the Child Support Guidelines.

However, even if a spouse meets test for undue hardship, a court can deny an application for a different table amount if that spouse would ultimately have a higher standard of living than the other spouse. Generally, in order to compare each spouse’s standard of living to make the determination if a spouse qualifies, the court will use the comparison of household standards of living test set out in Schedule II of the Child Support Guidelines.

If you believe that you are eligible to make a claim for undue hardship because one of the enumerated special circumstances applies in your situation, then it is best to speak to a lawyer who can advise you on whether you are likely entitled and how to best make that claim.

My partner and I are common-law and have cohabited for over 10 years. I am not on title on the property where we live although I made contributions towards its maintenance and improvement. Am I entitled to any share of it if we were to separate?

In Ontario, common-law couples do not have the same rights as married spouses. Unlike their married counter-parts, there is no legislation which governs the division of property for unmarried spouses. For example, common-law couples are not entitled to an equalization of the net family properties as set out in Part One of the Family Law Act. However, because many common-law couples accumulate property during the relationship and because their relationship may reflect similarities to that of a marriage-like union, the law has developed to remedy any possible unjust result which may occur when one spouse receives the benefit of the other spouse’s financial and labour contributions.

There are two legal tests which may be applied to determine whether a common-law spouse is eligible for an interest in property held by the other spouse upon separation: the test for “unjust enrichment” and 2) whether the common-law relationship meets the test for a “joint family venture.”

The principle of unjust enrichment emerged from the courts of equity. It is not a family law concept although it has been applied to family law in many instances. Its provenance comes from the Roman legal phrase “no one should be benefitted at another’s expense.”

In order to meet the test for unjust enrichment, a party must prove the following elements:

An enrichment;
A corresponding deprivation; and
The absence of a juristic reason for the entitlement.

If you meet the test for unjust enrichment then the court must then decide what the appropriate remedy would be under the circumstances. The court will either award a monetary award, commonly referred to as a quantum meruit remedy, or, if there is a sufficient causal link between the spouse’s contributions and the accretion in the wealth of a specific property, then the court may decide to grant a spouse a proprietary interest in the property – or what is normally referred to as a constructive trust.

In order for a common-law relationship to be considered a “joint family venture” the court will look to see if the following four elements exist:

the mutual effort exerted by the parties
the economic integration of the couple;
the actual intent of the spouses; and
the priority of the family within the relationship.

How long do I have to be considered living with my boyfriend/girlfriend to be considered common-law?

In Ontario, you are considered to be living in a common law relationship if either of the two criteria apply to you:

you have cohabitated (lived together in a romantic relationship) with another person (their gender does not matter) for a period of at least three years.

OR you are cohabitating with another person in a relationship of some permanence and you and your partner are the natural or adoptive parent of a child.  (If you have a child, the length of time you live together does not matter.)

It is key to point out that this definition of “common law” for the purposes of governing all aspects of family law such as child support and domestic contracts, etc., is totally distinct from the definition of common law for tax purposes. According to the Income Tax Act, you only have to be living with your common-law partner for 12 consecutive months, or have a child with them (by birth, adoption, or similar) to be considered common-law for tax purposes.

My ex-spouse is not paying any child support for our children who live with me. He does not earn any income because he went back to school. Is there a point in applying to the courts to request child support?

Section 31 of the Family Law Act states that every parent has an obligation to provide support, to the extent, that the parent is capable of doing so, for his or her child who is under the age of majority, is enrolled in a full-time program of education, or is unable to withdraw from the charge of his or her parents due to illness, disability, or other cause.

In situations where a parent is evading his or her child support obligations by being intentionally under-employed or unemployed, the court may impute an amount of income to a spouse it considers appropriate pursuant to s. 19(1)(a) of the Federal Child Support Guidelines. This is to give effect to the policy objectives underpinning the Guidelines which is to ensure that spouses honour their “joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.” The party who is requesting the court to impute income bears the onus of establishing the basis for that request.

There is an exception where the under-employment or unemployment is required by the needs of the child, such as in the case of a disabled child, or by the reasonable educational or health needs of the spouse. It is not necessary for the court to make a finding of bad faith or an attempt to frustrate support obligations pursuant to s. 19(1)(a). All that the court needs to find in order to meet the definition contemplated by s. 19(1)(a) is that the parent is earning less than what he or she in capable of earning. For example, courts may impute income to a spouse who earns income which tends to be variable, such as a self-employed business owner, who suddenly experiences a precipitous decline in income as soon as court proceedings commence. The courts may also decide to impute income to a spouse who decides to go back to school if their career aspirations are unrealistic or would likely be unproductive. Accordingly, if the spouse went back to school to pursue a degree in a niche industry where jobs are scarce or where there are poor prospects for remuneration, the court will likely find that he has behaved unreasonably and will not excuse him from his child support obligations.  

Once the court decides to impute income, it must then turn the analysis to what amount of income would be reasonable in the circumstances, taking into account the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.

The matrimonial home is treated differently from other types of property in family law, so much so that it has its very own section in the Family Law Act. Unlike other types of property in which only the growth in value of the property from the date of marriage is divided, the entire value of the home is divided equally between two spouses as of the date of separation (“valuation date”). What this means is that the spouse who comes into the marriage with a home that is also the matrimonial home at the valuation date will not be permitted to deduct any debts or liabilities attached to the home as of the date of marriage.  The result of the application of this rule is that the spouse who owned the home prior to the marriage does not receive a credit for the value that existed as of the date of the marriage.

In highly contentious family matters involving children, either party or a judge may decide that it would in the children’s best interests that they have their own lawyer to represent them during the court process. In that case, the court may make an order pursuant to s. 89 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”) to represent the child’s views and preferences in dealing with issues concerning parenting time, decision-making responsibility or contact cases. If there are specific clinical concerns to be addressed then the OCL may also assign a clinician to assist. The clinician is a social worker with a Masters in Social Work. The clinician and the lawyer will work together and the clinician will prepare an affidavit about the child’s views and preferences.

In other cases, the Office of the Children’s Lawyer may assign a clinician to conduct an investigation and prepare a report pursuant to s. 112 of the Courts of Justice Act, R.S.O. 1990, c. C.43 (“CJA”). They will meet with the children, the parents, and the children’s collaterals (i.e., teachers, pediatricians, etc.) to determine the children’s views and preferences. They may be asked to write a voice of the child report or a more detailed Children’s Lawyer Report.

The jurisdiction where the marriage took place does not determine where you can apply for divorce. According to section 3(1) of Canada’s Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), a court in any province has jurisdiction to hear and determine a divorce if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding. This means that even if your spouse has not been ordinarily resident in Ontario for at least one year prior to filing an application you can still apply for a divorce if you meet that criteria.

Unlike child support, spousal support is not mandatory and there is no presumption in favour of spousal support. However, the state of the law post-Bracklow does arguably create a low threshold for entitlement.

The basis of entitlement for spousal support can either be compensatory, non-compensatory, contractual, or a combination of the two. The Spousal Support Advisory Guidelines do not provide advice as to whether a spouse is entitled to support. The purpose of the SSAGs is to provide a range of different scenarios for spousal support for spouses once the threshold issue of entitlement has been determined. Only after the issue of entitlement has been decided can the analysis then turn to the more granular aspects of spousal support such as the amount, whether it is to be paid in lump sum or periodic sum, and the length of time over which it is to be paid.

The two authorities that are often relied upon to determine entitlement to spousal support are Moge and Bracklow. Moge created a broad basis for compensatory claims for spousal support on the grounds that one spouse suffered an economic disadvantage while the other spouse was conferred with an economic advantage due to the roles played during the marriage. The oft-cited example is the traditional marriage in which the wife stayed at home to raise the children while the husband maintained full-time employment and was able to advance his career.

If a spouse is not able to make the argument that he or she incurred an economic disadvantage related to the marriage, Bracklow provided for the possibility of a non-compensatory claim based on need or hardship created by the loss of the marital standard of living. Accordingly, if one spouse earned significantly more than the other spouse during the marriage then the disparity in their respective incomes will create an entitlement to some support. As such, even if a marriage was relatively short, say only two years, the resulting decline in the standard of living for one spouse may arguably present an entitlement to some time-limited support for a transitional period. After that, the spouse will likely be expected to become self-sufficient.

The law regarding mobility cases was settled in the seminal case of Gordon v. Goertz, 1996 CanLII 191 (SCC), [1996] 2 SCR 27, a Supreme Court of Canada decision which summarized the law as follows:

      The parent applying for a change in the custody or access order must meet the threshold requirement of demonstrating a material change in the circumstances affecting the child.

      If the threshold is met, the judge on the application must embark on a fresh inquiry into what is in the best interests of the child, having regard to all the relevant circumstances relating to the child’s needs and the ability of the respective parents to satisfy them.

      This inquiry is based on the findings of the judge who made the previous order and evidence of the new circumstances.

      The inquiry does not begin with a legal presumption in favour of the custodial parent, although the custodial parent’s views are entitled to great respect.

      Each case turns on its own unique circumstances.  The only issue is the best interest of the child in the particular circumstances of the case.

      The focus is on the best interests of the child, not the interests and rights of the parents.

      More particularly the judge should consider, inter alia:  

(a)  the existing custody arrangement and relationship between the child and the custodial parent;

(b)  the existing access arrangement and the relationship between the child and the access parent;

(c)   the desirability of maximizing contact between the child and both parents;

(d)  the views of the child;

(e)  the custodial parent’s reason for moving, only in the exceptional case where it is relevant to that parent’s ability to meet the needs of the child;

(f)   disruption to the child of a change in custody;

(g)  disruption to the child consequent on removal from family, schools, and the community he or she has come to know.

With respect to point #4, Gordon v. Goertz reviewed previous jurisprudence, including Carter v. Brooks, 1990 CanLII 2623 (ON CA). The Court of Appeal in Carter v. Brooks determined that a custodial parent has no presumptive “right” to remove a child from his or her habitual jurisdiction by virtue of having the status of the custodial parent. Rather, the court held that while a “reasonable measure of respect” should be accorded to the views of the custodial parent, these views are only relevant to the extent that they affect the best interests of the child – which is the paramount and only concern. The principle that emerged from this mobility case is that the courts are not obliged to defer to the custodial parent as a matter of law and there is no “right to remove” a child. Accordingly, if the court determines that it would not be in the child’s best interests to permit the move, then an order preventing a change in the jurisdiction will likely be granted. However, each case is determined on its merits so it is best to speak to a lawyer who can properly advise you.

In Ontario, common-law couples do not have the same rights as married spouses. Unlike their married counter-parts, there is no legislation which governs the division of property for unmarried spouses. For example, common-law couples are not entitled to an equalization of the net family properties as set out in Part One of the Family Law Act. However, because many common-law couples accumulate property during the relationship and because their relationship may reflect similarities to that of a marriage-like union, the law has developed to remedy any possible unjust result which may occur when one spouse receives the benefit of the other spouse’s financial and labour contributions.

There are two legal tests which may be applied to determine whether a common-law spouse is eligible for an interest in property held by the other spouse upon separation: the test for “unjust enrichment” and 2) whether the common-law relationship meets the test for a “joint family venture.”

The principle of unjust enrichment emerged from the courts of equity. It is not a family law concept although it has been applied to family law in many instances. Its provenance comes from the Roman legal phrase “no one should be benefitted at another’s expense.”

In order to meet the test for unjust enrichment, a party must prove the following elements:

An enrichment;
A corresponding deprivation; and 
The absence of a juristic reason for the entitlement.

If you meet the test for unjust enrichment then the court must then decide what the appropriate remedy would be under the circumstances. The court will either award a monetary award, commonly referred to as a quantum meruit remedy, or, if there is a sufficient causal link between the spouse’s contributions and the accretion in the wealth of a specific property, then the court may decide to grant a spouse a proprietary interest in the property – or what is normally referred to as a constructive trust.

In order for a common-law relationship to be considered a “joint family venture” the court will look to see if the following four elements exist:

the mutual effort exerted by the parties
the economic integration of the couple;
the actual intent of the spouses; and
the priority of the family within the relationship.

The Child Support Guidelines is federal legislation which prescribes how much child support is payable according to the gross annual income of the payor parent. It provides uniformity, predictability, and fairness to family law proceedings. There is a strong presumption in favour of the table amount because these amounts are proportionate to the payor’s gross income and predicated upon average family circumstances. However, this is a rebuttable presumption that can be challenged in certain circumstances. Sometimes, a parent cannot afford to pay the table amount of support prescribed by either Sections 3 to 5, 8 or 9 of the Guidelines because of special circumstances. This may be because of the following reasons:

The spouse has an unusually high level of debt incurred to support the other spouse and their children prior to the separation;
The spouse has unusually high expenses in relation to exercising parenting time to a child;
The spouse has a legal duty under a judgment, order, or written separation agreement to support any person;
The spouse has a legal duty to support a child, other than a child of the marriage, who is:
under the age of majority, or
the age of majority or over but is unable, by reason of illness, disability or other cause, to obtain the necessaries of life; and
The spouse has a legal duty to support any person who is unable to obtain the necessaries of life due to an illness or disability.

If any of the foregoing circumstances apply, a parent can apply to the court to make an order for an amount of child support that is different from the table amount, otherwise known as making a claim for “undue hardship” under Section 10 of the Child Support Guidelines.

However, even if a spouse meets test for undue hardship, a court can deny an application for a different table amount if that spouse would ultimately have a higher standard of living than the other spouse. Generally, in order to compare each spouse’s standard of living to make the determination if a spouse qualifies, the court will use the comparison of household standards of living test set out in Schedule II of the Child Support Guidelines.

If you believe that you are eligible to make a claim for undue hardship because one of the enumerated special circumstances applies in your situation, then it is best to speak to a lawyer who can advise you on whether you are likely entitled and how to best make that claim.

In Ontario, common-law couples do not have the same rights as married spouses. Unlike their married counter-parts, there is no legislation which governs the division of property for unmarried spouses. For example, common-law couples are not entitled to an equalization of the net family properties as set out in Part One of the Family Law Act. However, because many common-law couples accumulate property during the relationship and because their relationship may reflect similarities to that of a marriage-like union, the law has developed to remedy any possible unjust result which may occur when one spouse receives the benefit of the other spouse’s financial and labour contributions.

There are two legal tests which may be applied to determine whether a common-law spouse is eligible for an interest in property held by the other spouse upon separation: the test for “unjust enrichment” and 2) whether the common-law relationship meets the test for a “joint family venture.”

The principle of unjust enrichment emerged from the courts of equity. It is not a family law concept although it has been applied to family law in many instances. Its provenance comes from the Roman legal phrase “no one should be benefitted at another’s expense.”

In order to meet the test for unjust enrichment, a party must prove the following elements:

An enrichment;
A corresponding deprivation; and 
The absence of a juristic reason for the entitlement.

If you meet the test for unjust enrichment then the court must then decide what the appropriate remedy would be under the circumstances. The court will either award a monetary award, commonly referred to as a quantum meruit remedy, or, if there is a sufficient causal link between the spouse’s contributions and the accretion in the wealth of a specific property, then the court may decide to grant a spouse a proprietary interest in the property – or what is normally referred to as a constructive trust.

In order for a common-law relationship to be considered a “joint family venture” the court will look to see if the following four elements exist:

the mutual effort exerted by the parties
the economic integration of the couple;
the actual intent of the spouses; and
the priority of the family within the relationship.

In Ontario, you are considered to be living in a common law relationship if either of the two criteria apply to you:

you have cohabitated (lived together in a romantic relationship) with another person (their gender does not matter) for a period of at least three years.

OR you are cohabitating with another person in a relationship of some permanence and you and your partner are the natural or adoptive parent of a child.  (If you have a child, the length of time you live together does not matter.)

It is key to point out that this definition of “common law” for the purposes of governing all aspects of family law such as child support and domestic contracts, etc., is totally distinct from the definition of common law for tax purposes. According to the Income Tax Act, you only have to be living with your common-law partner for 12 consecutive months, or have a child with them (by birth, adoption, or similar) to be considered common-law for tax purposes.

Section 31 of the Family Law Act states that every parent has an obligation to provide support, to the extent, that the parent is capable of doing so, for his or her child who is under the age of majority, is enrolled in a full-time program of education, or is unable to withdraw from the charge of his or her parents due to illness, disability, or other cause.

In situations where a parent is evading his or her child support obligations by being intentionally under-employed or unemployed, the court may impute an amount of income to a spouse it considers appropriate pursuant to s. 19(1)(a) of the Federal Child Support Guidelines. This is to give effect to the policy objectives underpinning the Guidelines which is to ensure that spouses honour their “joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.” The party who is requesting the court to impute income bears the onus of establishing the basis for that request.

There is an exception where the under-employment or unemployment is required by the needs of the child, such as in the case of a disabled child, or by the reasonable educational or health needs of the spouse. It is not necessary for the court to make a finding of bad faith or an attempt to frustrate support obligations pursuant to s. 19(1)(a). All that the court needs to find in order to meet the definition contemplated by s. 19(1)(a) is that the parent is earning less than what he or she in capable of earning. For example, courts may impute income to a spouse who earns income which tends to be variable, such as a self-employed business owner, who suddenly experiences a precipitous decline in income as soon as court proceedings commence. The courts may also decide to impute income to a spouse who decides to go back to school if their career aspirations are unrealistic or would likely be unproductive. Accordingly, if the spouse went back to school to pursue a degree in a niche industry where jobs are scarce or where there are poor prospects for remuneration, the court will likely find that he has behaved unreasonably and will not excuse him from his child support obligations.  

Once the court decides to impute income, it must then turn the analysis to what amount of income would be reasonable in the circumstances, taking into account the age, education, experience, skills and health of the party, the party’s past earning history and the amount of income that the party could reasonably earn if they worked to capacity.

Reach us

Address

1460 The Queensway (DYMON Building) Etobicoke, Ontario M8Z 1S4

Phone

(647) 978-4402

Email

ana@anaklegal.com