Frequently Asked Questions
HOW MUCH WILL IT COST?
HOW LONG WILL IT TAKE?
WHAT IS CUSTODY AND WHAT IS GUARDIANSHIP?
WHAT WILL PARENTING TIME LOOK LIKE?
HOW MUCH AND HOW LONG WILL CHILD MAINTENANCE AND SPOUSAL MAINTENANCE BE?
WHAT IS INCLUDED IN ASSET DIVISION?
Just like anything else in life, cost depends on what you order or need. If your car needs new brakes the cost will be minimal. If your car needs a brand-new engine, the cost will be high. A Separation Agreement will cost less than $2,000. Mediation will cost a few thousand dollars to $20,000. A full-blown adversarial trial will range between $20,000 and $200,000.
It is important to remember that no one can force your ex to agree. The more agreement there is the less it will cost. The more fighting there is, the more billable hours that are required to fight, and therefore the more it will cost.
Most people would prefer to get along with their ex and enter into a separation agreement without fighting. People pay their lawyer to draft the agreement and sign it with the client, thereafter, if the other party signs it or not, the lawyer gets paid, so it makes sense to speak to one's ex to see if they will sign such an agreement or not before paying your lawyer to draft it.
Mediation usually takes a full day from 8 am to 5 pm with very few breaks. It pays to be knowledgeable in mediation. The more your lawyer knows the better able he/she is to argue a persuasive argument that provides you with a settlement that is in your favor. Paying your lawyer to become familiar with your facts prior to mediation is a good idea.
You and your lawyer (to provide you with on-the-spot legal advice) and your ex and their lawyer (to provide them with on-the-spot legal advice) sit across from each other with a mediator in the middle who is the referee. There are a lot of break out sessions where one party or the other meet outside the room with their lawyer to have secret discussions.
The mediator will join some of those break out sessions from time to time.
The mediator is interested in settlement. It is his role to guide or sometimes push the parties to settlement.
At trial, a judge who does not know you will make decisions as to how things get finalized. In mediation, you are the architect of how things get finalized. That personal attention to detail results in higher rates of satisfaction in mediation than One gets from court.
Trial is the most protracted and most expensive. If one were to ask the court for an immediate court date, usually the 1st available date is 18 months away. Normally a full-blown family file takes 2 or more years to finish due to lengthy court delays.
A separation agreement can be drafted and signed by the client at the same meeting. It then has to be reviewed and signed by the other party on their timeline. In that way the separation agreement is the fastest conclusion.
Mediation has to coordinate the calendars of the parties, their lawyers, and the mediator. For that reason, it usually takes months to schedule. But that is not necessarily a bad thing because those months of waiting are usually used to bring the lawyer up to speed on issues such as who paid for what, who worked on what, and where your strengths and weaknesses are.
Trials take years to do. Court systems are ill-funded and that results in a shortage of court rooms, support staff, and judges. The 1st offered trial dates are years away. The longer the trial takes, the longer the court delay. That is to say a 5-day trial might be offered 12 months away, whereas the 1st offered dates for a 15-day trial will usually be 18 to 24 months down the road.
There are segments in a file. One cannot just arrive on the scene and ask for the first available trial date. The court Rules require the parties to first attend a JCC (Judicial Case Conference[Supreme Court]) or FCM (Family Case Management [Provincial Court]) formerly FCC Family Case Conference) which are essentially mini mediations. There are court delays in obtaining a date for the mandatory mediation. At the mandatory mediations the trial dates are then scheduled.
Most cases do not go to trial, that is the old days. Most cases now are settled at these mandatory mini-mediations or a series of them. The parties tackle and settle issues one at a time at a series of meetings. That is the new reality. Just because you are going to court doesn’t mean that you will end up in trial.
Custody is an old-fashioned term. It remains in the Divorce Act and is available to married people only through the Divorce Act (federal legislation). Common law people fall under the Family Law Act (provincial legislation). Under the Family Law Act, the term “custody” was eliminated under the reasoning that people fight over “custody” so if it is eliminated people won’t have anything to fight over.
Only “guardianship” is allowed now. While “custody is only available to married people, guardianship is available to both married and common law people. If the parties were living together when the child was born, they automatically become “guardians of the child”. One would have to apply to try to remove the other parent from guardianship. One does not have to ask for guardianship if the parties were living together at the time of the birth of the child.
If a person was not living together at the time that a child was born, that person can apply for guardianship. The Provincial Court requires those persons to obtain 3 checks: Ministry of Children and Families (i.e., were children ever taken from that person or does the Ministry have concerns about that person), Criminal Record (i.e., is that person a decent person), and Protection Order (i.e., does that person have a record of beating on a spouse such that Protection Orders had to be issued against them). The Supreme Court does not require those checks.
The bottom line is: is it in the best interests OF THE CHILD to have that person included as a guardian? That is the test the court applies IN EVERY SITUATION AND EVERY ISSUE.
So, what is guardianship? It is essentially “custody”. Instead of parental rights, the guardians have “duties and responsibilities” to make decisions for the child such as religion, education, health and legal matters. S.41 of the Family Law Act sets these out for the parents.
Guardianship has nothing to do with parenting time. The time that a parent has with a child is called “parenting time”. A person can have parenting time with a child while having no guardianship at all.
The courts try to equalize parenting time. That is the new look of things. Rarely do the courts view the father as a “weekend” dad any longer. The new reality is often week on, week off for each parent. That way each parent has to tolerate the working weekdays of getting kids off to school and doing homework as well as the holiday weekend times where they can go on trips or plan events together.
It is important to remember that parenting time has to accommodate work schedules. If one parent works the weekends and the other parent works the weekdays, it is easy to decide who gets the children when.
Often both parents work the weekdays and have the weekends off. A week on, week off schedule allows each parent to experience the highs and lows of parenting children.
It will be up to each parent to make arrangements for daycare while they are at work. Paying for the daycare of each parent is split between the parents according to their incomes so that both parents can make a living and will not require spousal maintenance from the other parent due to child rearing responsibilities.
The court supports the use of grandparents or other family members to fill in when the parties cannot be there. Rarely does the court support canceling parenting time just because a parent has to use a fill in person due to work or other commitments.
Child maintenance is governed by the Federal Child Support Guidelines. There is a graph (available online) that sets out how much is to be paid on an income of the payor parent. If a parent has less than 40% of the parenting time, they will pay child maintenance. Even if there is equal parenting time, child maintenance can be payable. The usual method is to calculate how much each parent would have to pay if the other parent had the majority of parenting time, and then to set them off against each other. For example, if Parent 1 would have to pay $400 to the other parent per month, and Parent 2 would have to pay $300 to the other parent per month, then $400 - $300 + $100 payable by Parent 1 as a “set off”.
The reasoning of the court is that the children should not have to move from a household of riches with one parent, into a household of poverty with the other parent.
Child Maintenance is Basic Child Maintenance and that only covers shelter food and clothing. The Federal Child Support Guidelines must be followed to the letter of the law. There is no room for “agreement” between the parties. This is so much the case that divorce requests can be denied if the parties haven’t followed the Federal Child Support Guidelines in setting child maintenance amounts.
For other costs there is s.7 expenses. These usually include daycare, activity fees such as soccer or swimming, school fees, and other things. (Bus passes and cell phones are not usually considered s.7 extraordinary expenses, but the court allows great latitude to parties who want to make agreements on s.7 expenses.)
Child Maintenance lasts to the age of 19 years old or, if the child is unable to withdraw from the charge of their parents (usually due to post secondary studies or health impediments) child maintenance can go on until that inability ends (i.e., graduation from university or college). In the case of studies, the child has to account to the payor parent in the way of income, education, and resources available to the child (or child maintenance could be cut off by the courts).
With regard to Spousal Maintenance, it usually lasts as long as the relationship was. It is meant to help the spouse with the lesser income to get on their feet and so it can go on much longer. A good general rule is a relationship of a short duration will result in a nominal amount of spousal maintenance. The Federal Spousal Support Advisory Guidelines usually govern how much is payable. It is now a software program that uses ages, incomes, and parenting responsibilities to determine the amount.
That which each party owned prior to commencing the relationship usually belongs to that person at the end of the relationship. It is known as “excluded property”.
Only the increase in value that occurred during the relationship is “family property” and up for division. The valuation date of property is at the date of trial, not the separation date, barring any unusual facts.
Decreases in value during a relationship are not shared by the parties. The party who suffered the decrease usually gets stuck with it.
Generally, that which is put into the property by a spouse, or a parent of a spouse is returned to that person prior to division, but proof is required and has to be believed.
Assets can include such things as pension credits acquired during the relationship only (i.e., CPP) and is divided by the pension at the source at the time the pension kicks in and starts to pay out.
Debts can also be divided by the parties. The amounts have to be proven and believed. They must have been incurred for a family purpose.
Negligent dissipation of assets can affect the division of assets too (i.e., one party gambles the assets away).