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There are generally 3 types of custody: Joint Custody, Sole Custody and Shared Custody. Generally, the non-custodial parent is entitled to have access to the child/ren.

 

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The non-custodial parent is required to pay periodic monthly child support in accordance with the Federal Child Support Guidelines tables. The Guidelines tables indicate how much the noncustodial parent is required to pay the custodial parent on account of child support for the child/ren, based on the non-custodial parent's gross annual income and the number of children.

In addition to the basic amount of child support, both parents are required to contribute to the extraordinary expenses of the children in proportion to their incomes. Extraordinary expenses are outlined at section 7 of the Guidelines, and include childcare (required in order for the custodial parent to be employed), and educational expenses of the children.

 

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On January 1st, 2005, the spousal support advisory guidelines were introduced. These guidelines are intended to bring more certainty and predictability to the determination of spousal support. Unlike the child support guidelines, these advisory guidelines do not have binding force of law and are to be applied only to extent that lawyers and judges find them useful. The issue of spousal support continues to be decided on a case by case basis with lawyers and judges referring to case law and parties' financial statements to determine a fair amount of support.

 

Each of the parties must prepare a sworn Financial Statement (discussed below), whereby all assets, and liabilities are listed, as of the date of marriage, the date of separation and the date of the Financial Statement. The lawyer for each party will calculate each party's Net Family Property, meaning net worth, on the Separation Date.

The Separation Date, which is also referred to as the Valuation Date, is important for 2 reasons: you must be separated for a period of at least 1 year in order to be eligible for a Divorce Judgment. Also, the Valuation Date is the date upon which your Net Family Property is calculated. The Net Family Property takes into account the assets and liabilities you had on your date of marriage, and any excluded property such as property received by way of gift or inheritance.

Net Family Property Equalization is a calculation whereby the party with the greater Net Family Property pays the party with the lesser Net Family Property one-half the difference between the two parties' Net Family Properties.

Property Division is the physical division of household furnishings, motor vehicles, real estate, etc. between the parties.

If there are joint assets that are to be kept by one party, the party that seeks to keep the joint asset is generally required to buy the other party's one-half interest in the joint asset at fair market value. Generally, any such buy-outs occur after the Net Family Property Equalization is calculated, and the buy-out amount is added or subtracted from the Net Family Property Equalization amount.

 

A Separation Agreement is a global settlement of all issues. A Separation Agreement is negotiated between the parties through their respective solicitors.

 

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A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage. Breakdown of a marriage is established only if 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. Breakdown of a marriage is also established if the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, committed adultery or 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 important that both parties accurately prepare and exchange Financial Statements at the early stages of the negotiation of the Separation Agreement. Your solicitor requires the full financial disclosure of both you and your spouse in order to properly advise you of your rights and obligations in all respects of the global settlement, and you should not sign a Separation Agreement without the exchange of sworn Financial Statements by both parties.

 

Commencing on July 1st, 2004, the Family Law Rules replaced the Rules of Civil Procedure as the governing rules for family law matters. The Rules of Civil Procedure, however, may be referred to if the Family Law Rules do not adequately deal with a specific procedural issue. The primary objective of these rules is to deal with cases justly. At the core of this principle is the idea that lawyers and judges must ensure that the procedure must be fair to all parties. The rules are designed to have the parties settle matters prior to trial by holding multiple conferences with occur before the judge, for the purposes of identifying the contentious the issues, the evidence, and exploring the possibility of settlement.

Litigation may be necessary to resolve issues between the parties, when the parties are unable to amicably reach a global settlement, or when one party is unreasonable or uncooperative.

The litigation process is commenced with an Application. The Respondent will then have 30 days to file and serve an Answer. The Respondent may make claims against the Applicant, and the Applicant will have 10 days to file a Reply.

Except in the case of an emergency, such as if access to the children is being denied, the first Court appearance is the Case Conference. At the Case Conference, both parties and their solicitors present their positions to the Judge, who is not the same Judge that will hear any part of the Application. The objective of the Case Conference is to encourage the parties to settle all of the issues or at least narrow the issues. All of the documentation and submissions in and for the Case Conference are without prejudice and will not affect any other aspect of the litigation if a settlement is not reached between the parties at a Case Conference.

During the course of an action, there are likely several issues that must be resolved on an interim basis prior to the trial, such as support and custody. These issues are dealt with by way of a Motion. One party initiates a Motion by filing and serving a Notice of Motion, and supporting Affidavit material. The responding party will also file an Affidavit. Motions can be done on fairly short notice, even within a few days.

Once the court documents are filed, the parties may ask the court for an order for questioning, which allows them to question the other party on any relevant issue in the proceeding. This process was formally known as Examination for Discovery under the Rules of Civil Procedure. Although the name is different, the process is the same. The parties' lawyer will arrange for a mutually agreeable location, date and time to question the other party. The questions are asked under oath by the lawyer of the opposite party. Once the questioning is complete, and all undertakings to provide further information and/or documents are complied with, the application can proceed to the pre-trial stage.

Prior to trial being held, the parties must attend a Trial Management Conference. The parties and each of their lawyers appear before a Judge, who will not be the Trial Judge. This Conference is a final effort to encourage the parties to settle the issues or at least narrow the issues as much as possible.

If the application is not settled at the Trial Management Conference, the parties proceed to Trial. Once a trial date is set, the Applicant must then serve the Respondent with a document called a Trial Record at least thirty (30) days prior to trial. This record contains copies of the Application, Answer and Reply (if any), as well as all interim orders, orders relating to the trial and relevant documents such as financial statements and expert reports. At trial, witnesses may be called to present evidence. Various documents which have been made exhibits in the application are presented. Each party has the opportunity to cross-examine all witnesses called by the other party. Transcripts from questioning may also be relied upon. Once all the evidence is presented and the lawyer for each party has made closing arguments, the Judge will make his judgment.

Generally, the winning party in a court proceeding is awarded Costs, and there are different scales of Costs. What this means is that the losing side will pay some or all of the winning side's legal fees and disbursements.