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family law
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Family law encompasses issues related to separation, divorce, child support, and spousal support, to name a few. Although the effects of separation wreak emotional havoc upon family members, the breakdown of a relationship between spouses often leaves no other alternative.
Pursuant to amendments to the Divorce Act in 1986, added to cruelty and adultery as grounds for divorce, is that a divorce can be granted where spouses live "separate and apart" for at least one year prior to the granting of a divorce judgment. With the addition of this new "no fault" ground for divorce, most divorce applications are no longer contested.
In general terms, divorce actions are typically commenced with an application for divorce by the party requesting the court to declare that there has been a "breakdown in the marriage". After the application for divorce is issued by the Court Registrar, the respondent is served with the document, and he or she has twenty (20) days to respond with a document known as an Answer if residing in Ontario. If the respondent fails to respond within the required time period, the petitioner may note the respondent in default and seek a divorce judgment. If the two parties have remained friendly towards one another, a divorce may be sought by issuing a joint application for divorce.
In addition to a divorce, the applicant may seek "corollary reliefs” such as child or spousal support, custody of the children, access to the children, etc. A divorce judgment may be granted by the court prior to the determination of any of the corollary reliefs.
If you have an existing child support order or agreement, or wish to initiate such a claim, you should consider the effects of changes in the taxation rules for child support. Pursuant to new tax rules, child support is paid and received on a tax-free basis. However, according to new Federal Child Support Guidelines, the new rules only apply to:
- Court orders made after April 30, 1997;
- Written agreements made after April 30, 1997;
- Written agreements or court orders made prior to May 1, 1997, which specifically provide that the new tax rules will apply as of a date after April 30, 1997 to their existing orders or agreements, without having changed the amount set out in the order or agreement; cases where there is an existing written agreement or order prior to May 1997 and that agreement is varied after April 1997 to change the amount of child support, the new tax rules apply as of the date of the payment changes.
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