Determining the quantum and duration of spousal support can be complicated and unclear. Unlike child support, there are no federal or provincial tables that clearly set out your entitlements. While there are advisory guidelines that the courts have informally adopted, the determination of entitlement, quantum, and duration of support is ultimately at the court’s discretion. All spousal support orders aim to meet the following objectives:

1. To recognize any economic advantage or disadvantage to the spouse arising from the marriage or its breakdown. In arguing this point, it is important to make a connection between the marriage roles. A common example is where one parent quits his or her job to care for the children and now lacks the requisite experience or credentials to re-enter the workforce.
2. To compensate for hidden costs. This is a less common objective because the areas of compensation often overlap with child support. One example of this type of expense is a vehicle suitable for transporting children as a single parent. If you have six children and had previously shared transportation responsibilities with your spouse, you may need to purchase a larger vehicle to cope as a single parent.
3. To relieve any economic hardship of the spouses arising from the breakdown of the marriage. This is one of the more common objectives. “Economic Hardship” encompasses a number of items, such as loss of income stream, increased day care needs, and the cost of one spouse returning to school with a goal to enter or re-enter the workforce.
4. To promote the economic self-sufficiency of each spouse within a reasonable period of time. This point expands on point 3 and specifically recognizes the hidden costs of going back to work. This may include tuition costs, child care costs, and any other cost incurred as a result of re-entering the workforce.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

As you know, at MyOntarioDivorce.com, we aim to provide you with the tools to self-represent and manage your separation or divorce with minimal lawyer involvement.

Our clients contact us at various stages of the process, but some of the most common inquiries our lawyers receive relate to Separation Agreements. Read on to see our answers to some of your Frequently Asked Questions.

Do I need a Separation Agreement?

If you and your spouse have children, property, or a disparity in income, a Separation Agreement is crucial. It will set out how you and your spouse will deal with custody, division of property, support payments and any other issues, ideally before problems arise.

 What needs to go into my Separation Agreement?

The beauty of a Separation Agreement is that it can be whatever you want it to be. There is no official court-approved Separation Agreement template, which is a good thing because it allows you to draft an Agreement that works for your specific situation.  That being said, the key elements a strong Separation Agreement should address are custody, access, support (spousal/child), property division, and equalization payments, if applicable.

How do I draft a Separation Agreement? I can’t afford a lawyer.

We recommend that you make use of our Separation Agreement software at MyOntarioDivorce.com. It is a comprehensive program that will prompt you to answer all of the questions we’d ask you if you were in our office, paying us to draft your Separation Agreement, and- it’s FREE! It will take some time for you to complete it, but the result of your hard work is a cohesive Separation Agreement that you can print from your home computer. While the software may raise issues that you don’t need to address in your Separation Agreement  (for example: you may not have children), it may also remind you of issues you need to address.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

In our first post on the Family Responsibility Office, we gave you a general overview about the FRO and what it can do for you.  This follow-up post is meant to be a cautionary tale of sorts; a reality check for those who might not take their support obligations seriously.

If you are a payor who has failed to meet your support requirements, the FRO may take any of the following enforcement actions against you:

• garnishing your bank accounts
• garnishing money you may be entitled to receive from the Government of Canada (for example: income tax refunds, employment insurance benefits, Canada Pension Plan benefits, and Old Age Security benefits)
• reporting you to the credit bureau
• suspending your driver’s licence
• suspending your Canadian passport or other federal licences (including a pilot’s licence, as well as maritime and navigational licences and certificates)
• placing a lien on your personal property
• issuing a writ of seizure and sale for property you own
• reporting you to your professional or occupational organization(s)
• seizing your lottery winnings, and
• starting a Default Hearing, which could result in up to 180 days of jail time.

Child Support is owed even by payors who have declared backruptcy. It will accrue and the FRO will deal directly with the Trustee in Bankruptcy.

If that’s not enough to convince you, the FRO also has the authority and ability to post information about you online.

If you have not made a support payment in the last six months and the FRO has exhausted all options to find you, they may post personal information about you on goodparentspay.com.

Goodparentspay.com is a section on the FRO website. Its purpose is to ask the public’s help in locating a defaulting payor.

FRO may post the following information about a defaulting payor:

• photograph
• name
• physical description (height, weight, hair, and eye colour)
• approximate age
• last known address
• usual occupation/trades, and
• language(s) spoken.

Before posting information, the FRO obtains consent from the support recipient.

The public can provide tips and information anonymously by e-mail, telephone, or letter.

If you are a payor who has fallen behind in your support payments, it is important to contact the FRO as soon as possible at 416-326-1817 or toll-free at 1-800-267-4330. They will assist you in working out a payment plan. The sooner you address any issues with missed payments, the better.

If you are a support recipient in need of enforcement assistance, The FRO website has a wealth of helpful tips and information to help you obtain your support payments. Visit their website to find out more on how to get started.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

If you’re in the process of separating or divorcing, you may have heard about the Family Responsibility Office, commonly referred to
as “FRO.”  FRO is part of the Ontario Ministry of Community and Social Services.

FRO collects, distributes, and enforces child and spousal support payments. It assists support recipients in Ontario to recover the support payments they are entitled to by enforcing court-ordered support responsibilities. They work to flow payments from the person who pays the support (the payor) to the person who is entitled to it (the recipient).

What does this mean for you?

If a court has ordered that you are to receive child support or spousal support and the payor neglects to pay, the FRO has the legal authority and responsibility to enforce payment of the amount owed.

FRO has enforcement agreements with every Canadian province and territory, as well as 31 countries, including the United States, across the globe. This means that the FRO can help enforce support payments even if the payor lives in a different province/country than the recipient. This is particularly helpful in today’s multicultural society, where some spouses choose to return to their country of origin following a separation or divorce.

Every year, the Family Responsibility Office:

• handles more than 180,000 cases;
• represents nearly 400,000 people; and
• collects about $650 million in support payments.

If you are a payor who has fallen behind in your support payments, it is important to contact the FRO as soon as possible at 416-326-1817 or toll-free at 1-800-267-4330. They will assist you in working out a payment plan. The sooner you address any issues with missed payments, the better.

If you are a support recipient in need of enforcement assistance, The FRO website has a wealth of helpful tips and information to help you obtain your support payments. Visit their website to find out more on how to get started.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

In Canada, most divorces are granted on a no-fault basis. This means that a judge may grant you a divorce without you having to prove that your spouse violated the marriage contract, leading to the breakdown of the marriage.

A no-fault divorce is quicker, easier, and less expensive than a fault-based divorce. This is why the majority of divorces are granted on the grounds of the spouses living separate and apart for 1 year, as opposed to the fault-based grounds of adultery or cruelty. A no-fault divorce system allows you and your spouse to apply together to have the court declare the breakdown of the marriage without having to present evidence (or worse, pay lawyers thousands of dollars to present evidence).

The no-fault system severely limits the ability of a Respondent spouse to challenge the Application. If you’re the Applicant, this is good for you because once you have satisfied the court that you have established grounds for divorce by living apart for 1 year, your spouse cannot stop you from obtaining a divorce. On the other hand, if your spouse is the Applicant and you want to reconcile, there may not be anything you can do to stop the divorce from being granted.

It is always preferable to resolve as many issues as you can with your spouse before resorting to litigation. Work with your spouse to create a comprehensive Separation Agreement that addresses custody, property, and support issues (try our FREE Separation Agreement software at MyOntarioDivorce.com), then apply to obtain a simple divorce. Take advantage of the no-fault system and save yourself a lot of time, money, and frustration.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

The law views marriage as a legal merging of assets, and if it breaks down, one spouse is often left with less than the other. While it is expected that adults in the process of divorce make all efforts to support themselves, it is often the case that the spouse with a higher income or more assets will be responsible for supporting the other spouse.

As you may know, child support amounts are clearly and concisely outlined in the Federal and Provincial Child Support Guidelines. The formula is simple and is calculated based on the paying parent’s income and the number of children. Payment of child support is automatic and non-negotiable.

Spousal support is a completely difference game. Unlike child support, payment of spousal support is not automatic, nor is the amount simply calculated. On the contrary, it is an extremely complex calculation that is difficult even for seasoned lawyers to predict. Several years ago, two University of Toronto professors created the Spousal Support Advisory Guidelines; a formula for calculating the quantum of spousal support to be paid. Considerations include the length of the marriage, how difficult it would be for the spouse to become self-sufficient, the difference in income between the spouses, and any perceived sacrifices the economically disadvantaged spouse may have made for the sake of the marriage. Ultimately, the Advisory Guidelines are just that: Guidelines. Whether or not spousal support will be ordered and the quantum of the support is at the discretion of the judge, taking into consideration all of the specific circumstances of the relationship.

Both common law and married spouses are entitled to make a claim for spousal support. Married spouses are entitled to support under the federal Divorce Act, and common law spouses under the provincial Family Law Act. Entitlement to spousal support applies to both opposite-sex and same-sex couples.

Family lawyers often use a specialized program called “DivorceMate” to produce a spousal support calculation pursuant to the Advisory Guidelines. MyOntarioDivorce.com and Berman Barristers offer this calculation for a flat-rate fee.

For more information on spousal support, DivorceMate calculations, and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

Spousal support consists of a payment or payments made from one spouse to the other following the breakdown of a marriage or other cohabiting relationship. Spousal support is governed by the Divorce Act in instances where the couple was previously married and by the Family Law Act if the couples were cohabiting but not married. The purpose of this support is to ensure that the recipient spouse continues to enjoy the wealth accrued by the other spouse during the duration of the marriage or cohabitation.

Support payments are typically made in the form of monthly payments, but may also be made in any of the following manners:

• A single lump sum payment
• Periodic payments, such as monthly or yearly payments
• Series of lump sum payments

If there are children of the marriage or relationship, child support takes precedence over spousal support, to ensure that the parents continue to provide for their children. Provided that a parent is able to pay both child support and spousal support, the factors to be considered in determining whether spousal support should be paid include:

• Length of cohabitation
• Toronto domestic contracts or other agreements previously entered into by the spouses
• Roles of the spouses during marriage

Marital misconduct is not considered a factor in determining whether a spouse is entitled to support. Unlike child support, spousal support may be deducted on the payor’s income tax return and it is considered taxable income to the recipient spouse.

The Divorce Act currently only provides support to married spouses and does not cover common law marriages where the spouses were cohabiting, but not formally married. The purposes of providing spousal support under the Divorce Act include:

• Recognizing economic disadvantages caused by a marriage or subsequent divorce
• Fairly divide the financial responsibilities associated with raising any marital children
• Relieving any economic hardship that arises as a result of the divorce
• Encourage increased economic self-sufficiency over a period of time

The Department of Justice released federal spousal support guidelines that may be used in determining the amount of spousal support in divorces regulated by the Divorce Act . Unlike the Child Support Guidelines, these guidelines are not mandatory. However, they are often used by courts in determining the amount and duration of spousal support payments. These factors include:

• Length of the marriage
• Each spouse’s income level
• Work history of the spouses
• The number of children

Unlike the Divorce Act, the Family Law Act defines a spouse as one who has been married or who has cohabited continuously for three years or more in a permanent relationship where there is a child involved. The child may either be the natural child of the parents or an adopted child. This definition applies to both heterosexual relationships and same-sex partners. The purpose of spousal support under the Family Law Act is for one partner to provide support to the other partner in accordance with need, if he or she is capable of doing so.

Factors that courts consider in determining the amount and duration of child support under the Family Law Act include:

• Current assets and income of both parties
• Expected future assets and income of both parties
• Age and health of the parties
• Length of cohabitation
• Each spouse’s ability to contribute to his or her own support
• The ability of the supporting partner to provide support to the other spouse
• The standard of living maintained throughout the cohabiting relationship
• Ability of the dependant partner to become self-supporting in the future
• Necessity of the dependant spouse to stay at home to care for the children during the cohabitation
• Effect of the cohabitation on the dependant spouse’s earning capacity due to domestic responsibilities
• Contributions made by one spouse to the other’s education and/or career potential

Spousal support is often modified or terminated following the breakdown of a relationship for various reasons. Support can be modified if there is a change in circumstances following the initial support order. The burden of demonstrating a change in circumstances is on the spouse applying for the modification.

Support can be terminated in any of the following circumstances:

• Spousal support is set to end at a specified date
• The supporting spouse dies
• Reconciliation of the spouses
• Remarriage or cohabitation by the dependant spouse

Spousal support is often set to end at a particular date in order to encourage the dependent spouse to become self-supportive. Courts are prevented from extending spousal support payments past this specified date, unless there has been a change in circumstances that resulted in economic hardship to the dependent spouse.

Not all spousal support arrangements include an end date, however. In instances where the dependent spouse has provided a great deal of child care, domestic services, and other assistance to the other spouse in his or her career, an indefinite spousal support order is often granted.

If the support spouse dies, support payments typically terminate. However, if the support order specifically states that the support is binding on the supporting spouse’s estate, the dependent spouse can receive additional support from the supporting spouse’s estate following death.

In the province of Ontario, if the spouses reconcile, the spousal support order is considered void. If, after the reconciliation, the spouses decide to separate again, they must enter into another spousal separation agreement.

For more information on spousal support and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Our next series of articles will focus on the most important issues you need to consider if you are planning to separate from your spouse in Ontario. Here are the first two:

My wife and I just separated.  We were only married for 2 years and do not have any kids, do I have to pay her spousal support?

It depends on a number of different considerations including whether and for how long you lived together prior to getting married, if she earns less money than you and if so how much less, if she requires financial support, if you have the ability to provide her with financial support, if your wife sacrificed her career when you got married and her ability to become self-sufficient in a short period of time, to name a few.

All of these factors will be taken into consideration by the judge in determining whether you should pay your wife some spousal support, and if she so, how much and for how long.

When determining the amount of spousal support to be paid and the duration of support payable, if any, many judges in Ontario now rely on the Spousal Support Advisory Guidelines.  The Guidelines will generate a transitional amount of spousal support, with the length of the transition period being proportionate to the length of the parties’ cohabitation/marriage.  For short marriages, like your own, the amount of support generated by the Guideline Formula will often be small and for a very short transitional period.

The short transitional period allows spouses time to achieve or approximate the same standard of living that the spouses enjoyed while married, while at the same time encourages a clean break between the spouses.

Unless you lived with your wife for a number of years before you got married, if the judge orders any spousal support, it will likely be for no more than 2 years.

For a more detailed discussion about how to determine whether your wife is entitled to spousal support and if so, how much you would have to pay and for how long, we encourage you to read Lecture 3 of “Separating from Your Souse 101″, pages 37 to 52.

My husband and I just separated and he has agreed that I have custody of the kids, how much child support will I receive?

The amount of child support is set by the Tables to the Federal Child Support Guidelines and will be based on your husband’s income and the number of the children you have.  For example, if your husband makes $123,000.00 a year and you have two children, he is required to pay you $1,679.00 per month in support.

In addition to the Table amount of child support, your husband will need to pay his “proportionate share” of your children’s special and extraordinary expenses.  These expenses include the following:

1.              Daycare/childcare for your children while you are at work or at school;

2.              Medical and dental insurance premiums for any private insurance benefits you have for your children;

3.              Non-insured medical, dental and health care expenses;

4.              Private school tuition or tutoring;

5.              Post-secondary education expenses such as tuition fees, books, residence and student fees; and

6.              Abnormally high expenses for your children’s extra-curricular activities such as the fees for your son to play rep-hockey or baseball.

How much your husband has to contribute to these additional expenses depends on what your income is.  If your annual salary is $60,000.00, than your husband would be required to pay 67% of the cost of these expenses.  You would be responsible for paying the balance.

For a more detailed discussion about how to determine the amount of child support payable and other issues that must be considered when you separate from your spouse,  we encourage you to read “Separating from Your Spouse 101″  available at SeparatingFromYourSpouse.com or visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Separation and divorce are difficult for all parties involved and if you are thinking of initiating that discussion, it can be even more stressful. Chances are if you have reached this point, communications are already strained and your partner may not be open to such a discussion.

The best approach is an informed approach. Research your options. Consult with professionals such as a family lawyer first. Many family law lawyers operate traditional practices where you go to the office, pay for a consultation and retain their services. As an economical alternative, consider seeking advice from a firm that offers lawyer assisted divorce coaching to develop a plan that will protect your interests and approach the subject with your partner in a non-threatening manner.

Just because you are considering a separation or divorce, you don’t have to retain a lawyer that is eager to pursue legal action. Often the only people that benefit from legal aggression are the lawyers. Firms that offer divorce coaching can answer your questions and advise you on how you can navigate this very difficult process without retaining a traditional lawyer. They will also be ready to represent you if the issues cannot be resolved without using the court.

With the right advice, you will be more prepared to approach your spouse with more confidence and have strategies to focus on reaching an amicable agreement. The result could be a mutually beneficial separation or uncontested divorce agreement that saves you, your spouse, your children and your wallet the destruction that accompanies a nasty divorce.

If a resolution cannot be met, you have done your research and you have established a relationship with strong legal counsel that can protect your interests.

For more information about how to approach your spouse about a separation or divorce please visit www.myontariodivorce.com or www.bermanbarristers.com

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

If you are thinking of getting married, you may or may not have started to think about a pre-nuptial agreement. Whether you currently have something to protect or not, a pre-nuptial agreement is always a good idea.

A pre-nuptial agreement enables couples to enter a marriage with a clear understanding of the expectations during the marriage and in the event the marriage ends. It protects both spouses and should be developed together.

Inviting your spouse to participate in the development of an agreement will help them understand your position and you theirs. Consider a situation where one or both spouses have children from past unions who want to protect assets for their children, or a business owner who has responsibilities to employees and investors.

A pre-nuptial agreement can protect those interests. In the long run, if the union ends, you can avoid ill will and emotional disputes over property because your prenuptial agreement will have set out how those matters will be divided.

You should consult a lawyer to make sure that you address all the issues that need to be included in your agreement. You can also use internet services where you can ask a family law lawyer a legal question online. You can also create your pre-nuptial agreement online or with the assistance of a family law lawyer. If you create your pre-nuptial agreement online, make sure you each get independent legal advice before you sign it.

For more information about pre-nuptial agreements please visit www.myontariodivorce.com or www.bermanbarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer