Division of Family Property and Spousal Support

Family Law (Civil Law)

Grounds for Divorce

In Canada, there are only three grounds for legal divorce.

1. A minimum of one year legal separation.

2. Adultery

3. Cruelty

Dividing Family Property

Provincial and Territorial statues deal with the division of property following divorce.

Statutes recognize marriage as an economic partnership to which spouses contribute equally.

The Family Law Act, 1986

In Ontario, legally married spouses are now entitled to share the value of everything acquired during a marriage.

Common-law partners do not have the same automatic division of property rights.

Calculating Family Property and Equalization Payments

Legislation doesn’t divide property; only the value of that property.

Complicated process, and usually requires couples to seek legal advice.

Steps in Calculating Payments

1. List and calculate the value of your assets on the date of separation.

2. Subtract value of inheritances, gifts, personal injury awards, and life-insurance proceeds.

3. Subtract your total debts on date of separation to provide a total property value on that date.

Steps in Calculating Payments cont’d

4. List and calculate the value of your assets, less debts, on the date of marriage.

After the couple totals their individual property values, the spouse with the greater value of property gives the other spouse an equalization payment.

The Matrimonial Home

Generally the most valuable asset.

Only applies to married couples.

Must be located in the province.

On separation, one spouse may be granted exclusive possession for a certain period.

The Matrimonial Home cont’d

This option is used most often when one spouse has custody of the children and wants to remain in the home until they have finished the school year.

At the end of the exclusive occupancy order, the home must be divided. i.e. sold, or one spouse may buy out the other spouse.

Exemption from Equal Division Rule

Situations when equal division is unfair include:

1. Length of Marriage – not married long and one spouse brought a lot more into the marriage than the other.

2. Length of Separation – long separation and both parties have now bought items for separate dwellings; so it is unfair to divide those items.

Exemption from Equal Division Rule cont’d

3. Date when an Asset was acquired – one spouse bought an expensive item the day before the separation and they wish to keep the asset.

4. Gifts and Inheritances – If one spouse receives inheritance during marriage, it could be excluded from equal division.

Spousal Support

Money paid by one spouse to another after the divorce is to compensate one spouse for any financial losses suffered as a result of marriage breakdown until the spouse can gain self-sufficiency.

Factors Affecting Support Assets and financial status of each

spouse including past and present earnings.

Ability of each spouse to be self-supporting.

Ability of each spouse to provide support to the other spouse.

Age, physical and mental health

Factors Affecting Support cont’d Length of time married

Length of time required by the spouse in order to upgrade skills

Length of time one spouse spent at home raising the family instead of contributing financially by working outside the home.

Factors Affecting Support cont’d

Either party can order increased, decreased, or stopped support if circumstances change (i.e. Change in salary, remarriage, and unemployment)

When a second marriage results in a blended family, obligations to the first family have some priority over obligations to the second marriage.

Enforcement of Support Orders

Enforcement of support orders start as goodwill.

This can be escalated to provincial enforcement;

And, if need be, it can be escalated to federal enforcement.

Provincial Enforcement

Legislation passed to make it easier to collect payments from defaulting spouses.

Designed to reduce child poverty and need for social assistance.

Ontario Family Responsibility Officer (FRO)

(1992) first automatic wage deduction program

Wages deducted and forwarded to FRO and deposited into recipient spouse’s bank account

If support is not being paid, FRO acts legally to collect money that is owed.

Ontario Family Responsibility Officer (FRO)

The FRO now has a website of “deadbeat parents”

Federal Enforcement Allows federal government to assist in

enforcement process by:

(1) Tracking down people who have defaulted.

(2) Deduction of certain federal monies payable to debtors

(3) Refusing to issue important documents (i.e. Passports, income-tax refunds, Canada Pension Plan payments)

HomeworkRead pg. 416-427

Answer Questions 1, 3-8, 10 & 11 on pg. 427-428