Monday 17 September 2012

Understanding Separation & Divorce

The term “divorce” has a very distinct legal meaning, yet many people fail to understand the difference between separation and divorce. Often the meanings of the two concepts are blurred together.

To illustrate, a conversation around a water cooler somewhere in Ontario might go as follows:

     MAURICE:   Did you hear the news? Moe from marketing and
                         Sylvie from accounting are separating!

     MARTHA:    That’s funny, I heard they got a divorce.

     MAURICE:   What’s the difference, all I know is that
                          she’s getting the house and he’s getting  
                          a lawnmower.

     MARTHA:    I don’t know the difference either…
                         at least it was one of those new cordless
                         mowers…

To alleviate the confusion between the terms ‘separation’ and ‘divorce,’ it is helpful to begin with section 8 of the Divorce Act, which allows either or both spouses to apply to the Court for a divorce when there has been a “breakdown of the marriage.”

Parties must apply to the court if they want to be divorced. So, if Moe and Sylvie are separating but are not applying to court, then it would be appropriate to say they are “separated” but not “divorced.”

To obtain a divorce, the parties must first be “spouses” within the meaning of the Divorce Act. This definition excludes people merely living together and “common law” spouses and means that the two persons must be legally married to one another. The issue of whether two people are legally married is an entirely separate, and sometimes complex, issue that will be canvassed in a future blog.

The Divorce Act also states that to be granted a divorce order, there must be a “breakdown of the marriage.”

According to the Divorce Act, a “breakdown of the marriage” can only be established where:

1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;

or

2. the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

It is not possible to be divorced unless the parties fit into one of the above three categories.

While separation is necessary to establish first ground of marital breakdown, it is not relevant to the less commonly used grounds of adultery or cruelty.

“Separation" under the Divorce Act doesn’t just mean physical separation. The Act states that “spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other…”.

Therefore, in addition to living apart for one year, the Divorce Act adds the additional element that at least one of the parties must have had the intention to live separate and apart from the other.*

Of interest, subsection 8(3)(ii) of the Divorce Act allows spouses to resume living together with the intention of trying to resolve their marital differences without interrupting the 1 year period, so long as it doesn’t last longer than 90 days. This subsection is consistent with other sections of the Divorce Act designed to encourage the spouses to reconcile. For example, the Divorce Act places duties on legal advisors and the courts to advise and assist spouses in reconciliation where appropriate.

The distinction between separation and divorce can also be relevant to the division of family property. In fact, determining the date of separation is often crucial for dividing marital property under the Family Law Act.

“Separation” is given the following meaning by the Family Law Act:

     The date the spouses separate and there is no reasonable prospect
     that they will resume cohabitation.

This definition implies that equalization of family property can occur whether or not the spouses are divorced. Going back to the water cooler conversation, just because Moe and Sylvie seem to have sorted out their property issues doesn’t necessarily mean that they are divorced or that they will ever get divorced in the future. Perhaps the two had settled all of the issues stemming from their separation in a separation agreement and were content not to apply for a divorce.

It is helpful to remember that while the concept of separation is often relevant to obtaining a divorce and to the determination of the valuation date for the purposes of equalization, it is legally distinct from divorce.

Who knows when this distinction might come in handy around the water cooler!

*[While there is an entire body of case law examining what constitutes living separate and apart for the purpose of establishing marital breakdown, a review of such law is outside the ambit of this blog posting. For an extensive review of the factors courts in Ontario use to determine whether parties are living separate and apart, the decision of Greaves v. Greaves [2004] CanLII 25489 (ON SC) provides a helpful starting point.]



[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]





Wednesday 5 September 2012

Child Support for Adult Children



Family law clients often ask “my son/daughter just turned 18, that means I can stop paying child support right?” The family lawyer’s first response is “no, not necessarily” and then the follow-up question is invariably posed: “is your child still in school?”

Typically, if the child has reached 18, but remains in school, then child support will still be payable. However, it would be an error to limit the question to whether the child is still in school. While determining child support for adult children may often seem straightforward on the surface, actually navigating the relevant legislation, the Child Support Guidelines, and the applicable principles in the case law can be confusing.

The following are some of the key questions and considerations you should ask yourself when trying to determine whether child support can be terminated for an adult child, and how to go about actually getting that done.

What is the relevant legislation that applies to my situation?

In the case of spouses who were married, child support is governed by the Divorce Act and the Federal Child Support Guidelines. Where the spouses were common law, the Family Law Act and the Provincial Guidelines will apply. The different requirements of each Act can often lead to confusing results. Under the Family Law Act, a parent has an obligation to support a child who is enrolled in a full-time program of education. Under the Divorce Act, however, a parent must support a “child of the marriage,” which is defined further as a child who is “unable, by reason of illness, disability or other cause, to withdraw from [the parent’s] charge or to obtain the necessaries of life.”

“Child of the Marriage”

Often referred to as the “Farden Factors,” the following considerations may apply when determining whether a child remains a “child of the marriage”:


1. Whether the child is in fact enrolled in a course of studies and whether it is a full time or part time course of studies;


2. Whether or not the child has applied for, or is eligible for, student loans or other financial assistance;


3. The career plans of the child, i.e., whether the child has some reasonable and appropriate plan or is simply going to college because there is nothing better to do;


4. The ability of the child to contribute to his own support through part-time employment;


5. The age of the child;


6. The child's past academic performance, whether the child is demonstrating success in the chosen course of studies;


7. What plans the parents made for the education of their children, particularly where those plans were made during cohabitation; and


8. At least in the case of a mature child who has reached the age of majority, whether or not the child has unilaterally terminated a relationship from the parent from whom support is sought.


Further, while child support under the Family Law Act may immediately terminate when the child completes school, under the Divorce Act, the courts have often permitted a grace period even after the child has completed post-secondary education.


Do you have a separation agreement or court order?

The terms of your child support obligations may also be governed by either a separation agreement or a court order. Often this document will specify the circumstances in which child support will terminate, so after you consult the relevant legislation, be sure to check there next. Have you satisfied all the conditions for termination in the agreement or order? Be cautious of separation agreements that terminate child support, however. People are free to contract for just about anything they please, but child support obligations are one exception to this rule. Even though your separation agreement specifies a terminating event for child support, a court may not uphold that part of the agreement if the court determines that the child would be left in need and unsupported.



Is the child able to contribute to their own support?

The Child Support Guidelines (under both the Divorce Act and Family Law Act) specify that in cases of child support for adult children, the “conditions, means, needs, and other circumstances of the child” may be considered in appropriate circumstances and a child’s budget may be required from the parent, or the child herself, who seeks to continue receiving support. Hence, the ability of the child to support themselves will specifically be considered, but even if support is not terminated, the child’s ability to contribute to their own support may nevertheless justify a reduction in support.



What to do if you think you qualify for a termination or reduction of child support?

The above considerations are not exhaustive and are only some of the more pertinent points. However, if you think you may be entitled to terminate or reduce your child support obligation, then your next steps are again determined by either your court order or separation agreement. Your relationship with your former spouse will also help determine what route to take. If you have a separation agreement and if there is good open dialogue between you and your former spouse, then a written request to the former spouse and simple agreement to terminate support may suffice. Where there is a court order, or the relationship between the former spouses is strained, a motion to change the order may be required and may be, unfortunately, the only means to communicate with your former spouse.


Last but not least, for spouses who have their child support obligations being enforced by the Family Responsibility Office (or “FRO” as it is commonly known), make sure that any agreement or order terminating support goes to FRO’s attention, because FRO will keep enforcing support until they have the proper instructions to cease. FRO can often be slow to process child support orders and agreements, so make sure you begin the process to terminate child support well in advance of the expected termination date. You don’t want to make the mistake, as many do, of thinking that when the child turns 18 or finishes school, support automatically stops.


[The above article is for general informational purposes only and is not legal advice. If you live in the Ottawa area and would like advice about a legal issue please email us or call 613-569-9500 to speak with one of our lawyers or a member of our staff.]