Types of Child Visitation and Access
As a divorcee with children, you have certain legal rights and obligations when it comes to your minor children. In many cases, the court will have outlined child custody, visitation, access, and support order. Depending upon the circumstances of the divorce and your existing relationship with your children, the court can decide to order different types of access and visitation.
1) Reasonable Visitation and Access
This type of visitation and access is where both parents are on amicable terms and the court feels the parents are responsible and reasonable enough to arrange child visitation and access on their own. As a result both parents are given full control over access and visitation schedules and the flexibility to modify them, without having to get permission from the court.
2) Set Visitation and Access Schedule
For less amicable divorces, the court can establish a set visitation and access schedule. This is where the parents are given a specific time when they will have their children, like every weekend from 5 pm on Fridays until dropping them off at school on Mondays. The schedule also stipulates which parent will have the children during school breaks, holidays, and other times of the year.
3) Supervised Visitation and Access
This type of access to your minor children is commonly prescribed in situations where the court is concerned about certain behaviors the other parent has exhibited in the past, but believes the parent should be allowed access to their children. For instance, the parent has had addiction problems in the past and the court wants to ensure the safety of the children while visiting with their parent. Supervision can be carried out by a responsible friend or relative or a court appointed designee.
4) Rights as a Parent
If you are not happy with the initial visitation and access orders, there are steps you can take, with help from your Toronto family law lawyer to seek modifications to the court’s original orders. However, even while the litigation is pending, you must still comply with the existing orders until a modification is granted by the court. Failure to do so could actually hurt your case.
In some situations, one parent may begin to be less accommodating towards the other, refuses to be flexible, or creates difficulties that make access and visitation to the minor children difficult. Further, as your children get older, they might decide they would prefer to live with you, rather than the parent.
Whenever you encounter these types of situations, it is best to work with your Toronto divorce lawyer and work towards resolution using various legal methods and the courts. Courts will grant modifications to the original visitation and access orders, as long as they feel it is in the child’s best interests.
Please remember, the content presented here is for informational purposes only, and by no means should be viewed as actual legal advice. To obtain legal advice about child access and visitation matters or modifications, contact the experienced family law lawyers at Kain & Ball by calling 647-499-4888 now to arrange a consultation appointment.
Do Cohabiting Couples Have the Same Rights as Divorcing Married Couples?
Rather than getting legally married, you and your partner decided to cohabitate in the same residence for an extended period of time. Eventually, you and your partner decided to start a family and have children, but still chose to not legally get married. Then, the unfortunate happens and you or your partner decides to terminate the relationship and separate.
At this point, there can be all sorts of feelings and emotions you may experience, ranging from hurt to anger. You may have questions in regards to your future, the future of your children, where you will live, and how property you acquired together as a couple is to be divided. Your ex-partner will most likely have their own ideas about their future, which you do not fully agree with, like whoever paid for the property gets the property.
While cohabiting can have its benefits when couples first start out together, it can also have its drawbacks when things do not work out after being together for a long period of time. In many cases, if there are not any minor children involved, you may have limited options. However, it is worth your time to discuss your situation with a qualified and experienced Toronto divorce lawyer first, before making any decisions.
In recent years, courts have considered the division of property of cohabiting couples in specific instances, like if the couple has a cohabitation agreement in place. Further, if you were together for most of your lives, you may have certain legal rights that would determine how property is to be divided, such as you jointly purchased a home together.
In regards to minor children and cohabiting couples, the courts tend to adhere to similar practices like a divorcing, legally married couple. There are specific guidelines used to establish child support payments, visitation schedules, and access to and custody of the minor children.
Just because you and your partner have decided to call it quits does not excuse your from your parental responsibilities. The family court’s primary concern is what will be in the best interest of the minor children and provide them the most stability now that their parents have decided to end their relationship. Further, both parents are expected to contribute equally towards the rearing and financial support of their minor children.
At Kain & Ball, our Toronto family lawyers understand the pain and difficulties that can come with the end of long-term cohabiting living arrangement. We are here to help answer your questions in regards to division of property and issues concerning your minor children.
Please remember the above content is for informational purposes only and should not be construed as actual legal advice. For actual legal advice for separating cohabiting couples and to find out your legal rights, call 647-499-4888 today to arrange a consultation appointment with Kain & Ball Family Law Lawyers in Toronto.
Debt & Divorce
Ever wonder what role debt has in your divorce? What are the implications of debt on the division of assets or support payable? Can debt work in your favor? This post will provide some insight on how debt factors into essential aspects of your divorce such as the division of property.
In Ontario property is divided by equalizing the net worth acquired during marriage. This is referred to as equalization of the net family property. The net family property is calculated by subtracting the value of property at the time of marriage from the value of property at the time of separation. The spouse with the higher total must pay the spouse with the lower total half of the difference of their net family properties. So how does debt come into play? In calculating the net family property you are entitled to deduct any debts or liabilities existing at the time of separation from the total value of your property. In order to be allowed such a deduction, the court must be satisfied that an alleged debt is real.
Alternatively, it is possible for a negative deduction to be made (an addition) when calculating pre-marital property if one spouse has only debts at the time of marriage. If someone enters a marriage with a $200K debt, pays it off throughout the marriage, and on the date of separation has $200K in assets, how much wealth did they accumulate? In such a scenario, the $200K debt that was paid off is actually considered an accumulation of wealth, making their final net family property $400K. In other words, if you pay off your debt which existed at date of marriage by the date of separation, the amount paid off must be added to your asset pile. The formula for equalization is essentially determining how much wealth was accumulated during the marriage.
It is important to note that there are some instances in which a court may award a spouse more or less than half of the difference between the net family properties if doing otherwise would be unfair. One of such instances is when a spouse fails to disclose to the other their debts or liabilities existing at the date of marriage. Failing to disclose material debt can also be a basis on which a court may set aside a domestic contract which provides particular arrangements for the division of property. Another circumstance in which a court may award unequal division is when debts claimed in reduction of a spouse’s net family property were incurred recklessly or in bad faith. In such instances the courts will not allow intentional, reckless or bad faith conduct to reduce a spouse’s equalization entitlement. Yet another scenario is when one spouse has incurred a disproportionally larger amount of debt than the other in order to support the family. In these cases the courts may recognize the disproportionate contributions made between two spouses.
Debts may also play a role when it comes to determining support payments. A spouse who has an unusually high level of debts that were reasonably incurred to support their spouse and children prior to separation, or to earn a living, may be permitted to pay less than the standard amount of spousal support required for their income level as it would cause undue hardship.
It is clear that debt has significant implications on the division of property. At the end of the day, debt may work for or against you when it comes to equalization or support payments. The important thing to remember is that although debt can reduce an amount payable, the courts have the power to vary an equalization share or support amount and will do so when a party acts in bad faith.
The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 647-499-4888 or email us at firstname.lastname@example.org to book a free 30 minute consultation with one of our experienced family law lawyers.
Prenuptial Agreements: What You Should Know
So you’re thinking about drafting a prenuptial agreement, or a ‘marriage contract’. Perhaps you’re wondering what sorts of issues the contract can address, and what will not be enforced by the courts. This blog post seeks to tell you a few things you should know.
How do you make a Prenuptial Agreement or Marriage Contract?
First things first – making the contract. Section 55(1) of the Family Law Act is exceptionally clear about creating a marriage contract. “A domestic contract and an agreement to amend or rescind a domestic contract are unenforceable unless made in writing, signed by the parties and witnessed.” If you and your spouse are discussing an agreement and shake on it, it will not be enforced by courts. If you and your spouse write an agreement but do not sign it, it will not be enforced by the courts. And finally, unless your written and signed agreement is witnessed by a third party, it will not be enforced by the courts.
When can a Prenuptial Agreement or Marriage Contract be set aside?
There are also grounds under which the courts will set aside properly made domestic contracts. The court has the authority to set aside either an entire contract or any section within one. Section 56(4) of the Family Law Act addresses the grounds upon which courts will do so. For instance, if you do not disclose all of your assets, debts, and liabilities to your spouse when the agreement is made, it can be set aside. To avoid this, it is important to make full and accurate financial disclosure; ideally by completing a Financial Statement which includes the estimated value of your assets.
If you or your spouse do not understand the nature or consequences of the marriage contract, it can be set aside. Most people do not fully understand all of their rights and obligations under family law. It is therefore common for spouses to misunderstand the nature or consequences of a marriage contract. If you intend to create an enforceable contract, it is extremely important that both you and your spouse retain family law lawyers to provide you with independent legal advice and to fully explain all of the consequences of signing a marriage contract.
If the marriage contract in any other way violates a rule of contract law, it can be set aside. You cannot be coerced into signing a contract. Unless you commit yourself to the contract consensually and free from coercion, it will not be enforced by the courts. Coercion or duress violate contract law and are therefore grounds for setting aside a marriage contract.
What can you put in a Prenuptial Agreement or Marriage Contract?
What sort of issues can a marriage contract deal with? Section 52(1) of the Family Law Act addresses the content of marriage contracts. In general terms, a marriage contract can address anything to settle the affairs of separated spouses – but this general clause has limits. More specifically, a marriage contract can outline how property will be divided or owned after separation or divorce. A marriage contract can address what the support obligations will be post-separation. It must be remembered that when it comes to children, courts make decisions based on the best interests of the child. Therefore, as Section 56(1) of the Family Law Act states, the court can ignore any provision of a marriage contract if doing so is in the best interests of the child.
There are several aspects of separation that a marriage contract cannot address. For example, any provisions in a marriage contract outlining the rights to custody of or access to children is unenforceable. Any provision in a marriage contract which limits a spouse’s possessory rights to the matrimonial home is similarly unenforceable.
Finally, as mentioned earlier, a marriage contract can address what the support obligations will be post-separation. Does this mean spousal support or child support? It can be both. However, as Section 56(1.1) of the Family Law Act states, the courts can ignore any provisions of a marriage contract which deals with child support if “the provisions is unreasonable having regard to the child support guidelines.” In other words, if you make one million dollars a year, and you and your spouse agree that child support should be $50 per month, the courts will likely ignore that provision because it flies in the face of what the child support guidelines demand.
Hopefully this post has shed some light on the nature of marriage contracts. They can be very useful, but they must be extremely clear, and both you and your spouse must completely understand what you are getting yourselves into.
The above information is not legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at email@example.com to book a free 30 minute consultation with one of our experienced family law lawyers.