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FAMILY LAW

Introduction

The breakdown of a marriage or a relationship is an emotionally and financially taxing time for all concerned. The parties are generally under extreme stress during a period in which important legal decisions must be made. For this reason, it is essential that the services of a professional be retained to assist in the resolution of the legal tensions between the respective parties.

Family Claims in General

The following are the usual issues surrounding matrimonial disputes which require legal assistance:

  1. child custody
  2. child support
  3. spousal support
  4. division of family property
  5. child access and restrictions on the child's movement
  6. life insurance on each spouse
  7. extended health care benefits
  8. cost of living clauses
  9. future child educational expenses
  10. who should pay the debts
  11. possession of the home
  12. changes to your will/estate planning
  13. restraining orders
  14. divorce

Before dealing with these issues, it is essential that you provide your lawyer with full and accurate information as part of a thorough discussion involving all aspects of your marriage/cohabitation, separation, and the possibility of reconciliation. If an agreement can be reached between the parties on these issues, they are normally formalized into a document referred to as a Domestic Contract.

Domestic Contracts

Ontario law now provides for a Cohabitation Agreement in the event that you intend to live together without benefit of marriage; and for a Marriage Contract, in the event that you are married. One contract can be prepared for both purposes. In addition, Ontario law also allows for Separation Agreements to be made following marital separation. In all three cases, almost any issue can be covered. However, in a Marriage Contract/Cohabitation Agreement, any provision dealing in advance with the questions of custody, child support, and the right to occupy the marital home following separation are, by law, void. All other terms will be enforceable if the agreement is properly negotiated, documented, signed and witnessed. It is not recommended that these agreements be entered into without the benefit of independent legal advice and without having been reviewed with your lawyer.

In the event that matters cannot be resolved between the parties, then the matter normally proceeds to Court where a Judge resolves disputes based on the evidence placed before him or her.

Last Will and Testament

In Ontario when a person has a Last Will and Testament and gets married, their Last Will and Testament is automatically revoked by law unless their Last Will and Testament was made in contemplation of marriage. It is important for newly weds to consult with their lawyer to ensure that their estate planning needs are up to date.

In the case of a separation and especially divorce, it is important to know that a person's Last Will and Testament is not automatically revoked, but remains in full force and effect. All parties to a separation or a divorce should consult with their lawyer to ensure that their estate planning reflects their present testamentary wishes taking into consideration the divorce or separation.

Court Proceedings

Court proceedings are time-consuming, expensive and stressful for all. Prior to proceeding to Court on a matrimonial matter, it is always wise to consider that the funds spent by both parties in the proceeding are coming out of their respective pool of resources to be divided once matters are eventually decided. Usually finances are already strained and the cost of operating two households will virtually always be higher than the cost of operating one.

It is, however, sometimes necessary for one party to enforce rights against the other where agreement cannot be reached. When Court proceedings are necessary, more formalized documents required by the special rules for these proceedings in the Province of Ontario, must be prepared and more exacting financial information (once again in the form required by law) must be filed. While it may seem simple or obvious to the parties that certain information is true, it must always be remembered that judges see hundreds of cases a year and they have no knowledge of the parties or their backgrounds and are simply working on the documents before them and the advice of counsel. It is therefore very important at the early stages of a case that you provide your lawyer with all information available, since these documents are the basic tools he will require in order to construct an effective case on your behalf. Clear communication on the legal issues between the lawyer and client in Court matters assists in obtaining the most desirable result at the least cost to the client.

Divorce Proceedings

So far, we have discussed procedures and issues dealing with the separation of parties and the issues surrounding it but as most people know, a marriage is not technically terminated until a divorce is obtained.

In Canada, divorces are currently granted on one of the three following grounds:

a) marriage breakdown - living separate and apart for one year;

b) adultery - sexual relations with a person other than your spouse;

c) physical or mental cruelty - of such a kind as to render intolerable the continued cohabitation of the spouses.

Either spouse can apply for a divorce. However, one spouse or the other must have been a resident in the Province of Ontario for at least one year prior to commencing the divorce. If marriage breakdown is the ground utilized, you need not wait the year to commence the application but a full year must have transpired before the application is actually put in front of the Judge for signing.

If the application is uncontested by the other spouse, the Court will make a Divorce Judgment which becomes effective one month after it is made. In certain circumstances, the one-month waiting period may be waived. In uncontested divorce situations, it is not necessary for the parties to actually testify before a Judge as this can be done by affidavits in your lawyer's office.

In many situations, parties who are divorcing have previously obtained either a Court Order or a Separation Agreement dealing with all the disputed issues, and the issues are said to "survive" divorce. That is they are not dealt with anew but it is simply recognized that they have already been settled and do not need to be brought up for discussion again.

Generally

Any matter involving a domestic dispute, separation or divorce is of serious, personal and financial importance and requires serious thought, discussion with your spouse, and planning.

We trust this information will be of value to you. If you are in the Midland, Penetanguishene, or Georgian Bay area, we would be pleased to discuss further with you, your friends, or any member of your family any issue involving marital issues upon your arranging for an appointment at a mutually convenient time.

 

The foregoing articles are meant for informational purposes only and are not to be taken as legal advice. In the case of any questions, issues or needs arising from the above please contact us at Admin@deacontaws.com, Phone: (705)526-3791 or Fax: (705)526-2688

 

 

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