Welcome to our Learning Centre.

At Kassa Law Firm we understand that going through a separation or divorce, particularly when there are children involved, can be overwhelming. From new terms, to court forms, to court hearings the learning curve is steep. This is, of course, on top of the stress inherent in any divorce or separation.


To ease that burden we have added what we call the Learning Centre to the website where visitors can obtain information on family law matters. This Learning Centre consists of frequently asked questions, articles and news, and self-help videos.


Please note, the Learning Centre is not intended to replace a lawyer’s legal advice. For that, you are invited to schedule a free consultation with us today.

Videos

Section 7 Expenses in Ontario

Frequently asked questions

Spousal Support

Why do I have to pay spousal support?


The rationale behind spousal support to compensate a lower income earning spouse for the direct or indirect contributions that he or she made to the other spouse’s career.

There are three bases for spousal support: (1) there is a marriage contract or prenup, (2) one spouse is unable to be self-sufficient, and (3) where the parties are so intertwined in terms of finances and career advancements that it would be unfair to allow a higher income earning spouse to leave the relationship with a higher income than the other.




What is spousal support?


Spousal support is money paid by one former spouse or partner to the other. It may be paid for different reasons but is often paid to alleviate economic hardship that may be experienced by the lower income earning spouse upon the breakdown of the marriage or common law relationship.




Do I have to pay spousal support?


There are many different factors that a court will consider before determining whether spousal support is payable. These include:

  1. The length of the marriage or relationship,
  2. Any economic advantages or disadvantages to each spouse which arose from the marriage,
  3. Whether one spouse remained at home to care for children or the household, while the other went to work and advanced their career,
  4. Whether one spouse is unable to maintain the lifestyle he or she became accustomed to during the marriage,
  5. The physical or mental disability of each spouse,
  6. The age of the spouses,
  7. Whether each spouse will gain economic self-sufficiency within a reasonable time, and
  8. Whether there is a separation agreement or a marriage contract.

The idea is that the more financially intertwined a separating couple are, the more likely the higher income earner will need to contribute to the other’s expenses.




How much is spousal support?


Determining the amount of spousal support payable is not as straight forward as is determining the amount of child support payable.

When there is a marriage contract or prenup, that document will spell out whether spousal support is payable, if so how much, and how long it is payable.

If the amount and duration of spousal support is not defined in a marriage contract or prenup then you can refer to the Spousal Support Advisory Guidelines (SSAG). The SSAG can help you determine how much support you might get if you are entitled to it, and for how long.

It is important to note that the SSAG is not law. That is, unlike the Child Support Guidelines, you cannot obtain a definitive answer with respect to the amount of spousal support and its duration. The SSAG should be viewed as a helpful tool only. The SSAG will only provide a range of the amount and duration of spousal support.

Where entitlement to spousal support is grounded on an inability to attain self-sufficiency then spousal support is payable until the spouse in need has had a reasonable chance to obtain self-sufficiency.

If spousal support is based on the third ground, the amount and duration of spousal support depends on how strong the entitlement is. That in turn depends on the following:

  1. The length of the marriage or relationship,
  2. Any economic advantages or disadvantages to each spouse which arose from the marriage,
  3. Whether one spouse remained at home to care for children or the household, while the other went to work and advanced their career,
  4. Whether one spouse is unable to maintain the lifestyle he or she became accustomed to during the marriage,
  5. The physical or mental disability of each spouse, and
  6. The age of the spouses,




Can I get spousal support if I wasn’t married?


Maybe. In Ontario, you may apply for spousal support after a common law relationship but only if you are unable to attain self sufficiency. Spousal support will be payable for a reasonable amount of time.




What are the Spousal Support Advisory Guidelines?


The SSAGs were developed to make spousal support payments more predictable and consistent. The SSAGs suggest appropriate ranges of support rather than a specific number. The specific number is to be negotiated or determined by the court.

The SSAGs do not indicate whether a spouse is entitled to support because entitlement to support depends on the circumstances surrounding the spouses. Although the SSAGs are not law, judges often base their decisions about spousal support on them.

There are two formulas included in the SSAGs to help determine which range is applicable. One formula is used when there are dependent children and one is used when there are no dependent children. The reason for the two formulas is to consider any child support that is being paid.




When do I stop paying spousal support?


The answer depends on your situation.

If you have a separation agreement and you and your spouse agree to an end date, then that date can be incorporated in the separation agreement.

If spousal support was ordered by the courts then the order might include an end date or state that the spousal support is to be reviewed after a specified time. Some orders are worded in such a way that the support can be stopped or changed under specific circumstances. If the court order is silent on how long spousal support is payable, then there must be a material change in circumstances before it is reduced or eliminated.





General Family Questions

How much does a divorce cost?


This is an often-asked question and an important one at that. The answer is “it depends”. The cost of a divorce is primarily, if not only, dependant on the level of hostility between the parties and their ability to come to an agreement.

If the parties are unable to negotiate a mutually agreeable settlement, they will need to got to trial. In those cases, it is very difficult to estimate the cost of a divorce at the outset. Fortunately, the number of divorces which result in trial is very low; about 2%. This is in large part due to the court process, which promotes settlement.




How long do I need to wait before I can get a Divorce?


There are three grounds for a divorce: separation for one year, infidelity, and abuse. With infidelity and abuse a divorce can be obtained immediately. However, most spouses will use the first ground, separation for one year, to obtain a divorce. The reason for this is it is much simpler as infidelity and abuse must be proven. That said, you do not need to wait one year to deal with other matrimonial issues, such as spousal support, child support, and division of property.




How do I get a divorce?


To obtain a divorce certificate you will need to file an Application for Divorce. The Application can either be for a simple divorce (no property, child support, spousal support or custody disputes) or a divorce involving property, spousal support, child support or custody disputes.

A simple divorce will require an application for divorce together with the original marriage certificate and proof of service (i.e. you gave a copy of the application for divorce to your spouse). Next, you will need to wait 30 days from the date you provided your spouse with the divorce application. This is to allow your spouse to respond to the divorce application. Then depending on the ground for divorce it may take one year before you obtain a divorce certificate.

A divorce involving a property, child support, spousal support or custody dispute is a more involved process. In addition to the application for divorce, both you and your spouse must complete a financial statement. If the dispute can be negotiated amicably then you and your spouse will likely enter into a separation agreement which is generally converted into a court order. That is, the agreement will be provided to a judge and, if the judge is okay with the terms of the agreement, he or she will endorse it and make it a court order. On the other hand, if the dispute cannot be negotiated amicably you will need to engage the court process which can be expensive and time consuming.




What happens in divorce court?


The court process involved in a divorce consists of the following steps:

  1. Serve and file an application for divorce;
  2. Wait 30 days from the date of service of the application on your spouse to give him or her a chance to respond;
  3. Arrange for a case conference date,
  4. Attend the case conference,
  5. Attend a settlement conference,
  6. Attend a pre-trial settlement conference, and
  7. Attend at trial.




What is a Case Conference?


A case conference is a meeting between the parties, their lawyers, and a judge. A case conference allows the parties and their lawyers to identify the issues and receive a judge’s opinion on the case at an early stage, before money is spent on motions and other steps.

If some or all of the issues cannot be resolved at the case conference then the conversation turns to procedural matters such as: ensuring financial disclosure is made, setting a date for the next step in the case, and preparing a specific timetable.




What is a Settlement Conference?


A settlement conference can be thought of as round two of the Case Conference. The idea is that the passage of time may help the parties resolve any issues which are still in dispute. If not, then the next step is a trial.

Also, the parties should have exchanged financial and other documents prior to the Settlement Conference. This gives the parties and the judge a better idea of the case, and your likelihood of either party being successful at trial.




What is a Motion?


A Motion is a court appearance where one side asks the court to make an order on an issue in dispute, such as an order for spousal support, parenting, and child support. The Order may be temporary or final. A temporary Order will last from the date it is made until a future court date such as trial or another Motion.




What is the Family Responsibility Office?


The Family Responsibility Office (FRO) is an agency that administers and enforces child support and spousal support payments. You can think of the FRO as a “middle-man”. If the parties decide to use FRO then all support payments must be made to the Family Responsibility Office who then submits the payments to the recipient.

The Family Responsibility Office cannot change a support order or negotiate a reduction.

To contact the Family Responsibility Office, go to www.thefro.ca




What is a separation agreement?


A separation agreement is a written contract created between spouses who want to live apart on certain terms and conditions. It is made at the time of or after the parties separate without a reasonable chance of reconciliation.

The separation agreement will set out each party’s rights on issues such as: child custody, child support, child access, division of property, spousal support, and debts.




What is a cohabitation agreement?


A cohabitation agreement is a written contract created between a couple who have chosen to live together. It is made prior to or shortly after the couple commence cohabitation. A cohabitation agreement is similar to a prenuptial agreement accept it applies to couples who are not planning on marrying.

A cohabitation agreement typically lays out terms for division of assets and spousal support that will take effect if the couple decides to live apart.




What is a marriage contract?


A marriage contract (aka prenuptial agreement, premarital agreement or prenup) is a common step taken before marriage. A marriage contract is a written legal contract between two people who intend on marrying. It establishes each party’s right to spousal support, parenting and support of any children, property and other financial matters in the event of a divorce.

The benefit of entering into a marriage contract is in reducing conflict in the event the couple decide to separate. This in turn translates into reduced stress during what is likely already a stressful event, not to mention saving possibly several thousands of dollars in litigation costs.





Child Support

How do I get child support?


You may receive child support if you are the primary parent of your child, and any one of the following:

  1. your child is not16 or older and independent
  2. 18 years of age or older and is in full time education, or
  3. 18 years of age or older and has a disability which prevents him or her from being independent.

When a court makes an order for child support, that order is filed with the Family Responsibility Office (FRO) who then begins collecting support payments and administers the payments to the recipient. You and your spouse may agree to opt out of having FRO collect and administer the child support payments.




How much is child support?


Determining the amount of child support your child(ren) is entitled to is relatively straight forward. In general, child support is calculated by using the gross income of the paying spouse and the number of children. Those two figures are matched in the Child Support Guideline table to determine the monthly amount payable.

Click here for an easy to use child support calculator

However, there are circumstances where the court will not strictly adhere to the table amounts listed in the Child Support Guidelines, these are:

  1. undue hardship,
  2. when the child is over the age of majority or is at least 16 years of age and independent,
  3. where the payor has an income over $150,000.00,
  4. whether the parent against whom support is sought is a step-parent,
  5. special or extraordinary expenses,
  6. split or shared custody arrangements, and
  7. arrangements made by the parents for the support of the child that are reasonable and adequate.




Can I refuse access if child support is not paid?


No, you have no right to limit or deny your child’s parent from visiting with the child on the basis that child support is not paid.




Is child support taxable?


No, you do not need to report child support in your taxes. Also, your spouse cannot claim a deduction for child support in his/her taxes.




Do I still need to pay child support if my ex-spouse and child live with a new partner?


As a parent you have a financial obligation to support your children until they are no longer entitled to child support.

The right to child support belongs to your child, not your spouse. Therefore, your ex-spouse’s decision to live with a new partner does not necessarily mean you can stop paying or reduce your child support payments.

However, your financial obligations towards your children may change if your ex-spouse’s new partner decides to adopt the children or stands in loco parentis. The term in loco parentis refers to a non-parent who engages in parental activities with your child. Some examples of this are when the non-parent,

  1. provides discipline,
  2. provides care and guidance,
  3. attends parent-teacher meetings,
  4. attends extracurricular activities,

You can think of the term in loco parentis as standing the shoes of a parent.

Only a court can determine if your spouse’s new partner stands in loco parentis. If he or she is found to be so, then it may reduce or eliminate your child support obligation.




I can’t afford child support anymore? What do I do?


As a parent you are legally obligated to financially support your children. The amount of child support depends on your income and the number of children you have.

If you cannot afford to meet your child support obligation, then you may reach an agreement with your former spouse to reduce child support. This can be done in two ways:

  1. if child support is being paid following a court order, then you and your spouse may draw up Minutes of Settlement which is a document. A Minutes of Settlement document outlines the clause of the original court order and states how much and why the child support payment is to be varied.

  2. If child support is being paid pursuant to a separation agreement then you can amend the separation agreement. The amendment to the separation agreement should then be filed with the court.

If an agreement cannot be reached, then you may petition the court to reduce or eliminate child support based on undue hardship. Undue hardship refers to a situation that occurs when support payments cause serious financial difficulties to the paying parent. These circumstances include:

  1. unusually high debts acquired before separation

  2. unusually high costs associated with access

  3. a legal obligation to support another person

  4. a legal obligation to support a child outside of the marriage

You can also obtain a child support reduction outside of court, but only if you and your spouse are on good terms and or can agree that you are suffering undue hardship as a result of the child support payments.




My ex-spouse is making more money than I, do I still need to pay child support?


Yes. Child support belongs to your child and is not dependant on your ex-spouse’s income




What will happen if I refuse to pay child support?


If you fail to pay child support then, the Family Responsibility Office has the authority to do the following:

  1. garnish wages,
  2. suspend passports and driver’s licenses,
  3. seize income tax returns and GST/HST rebates,
  4. garnish employment insurance, CPP, OAS, and other federal periodic payments,
  5. reporting to credit bureaus, or
  6. file a contempt order which can result in either a fine or imprisonment.




What should I do if I am behind on child support?


If your child support obligation is in arrears then you may ask the court for a refraining order. However, this request must be made within 3 months of receiving notice from FRO that it will be taking enforcement measures.




Is child support automatic?


No, child support is not automatic. You or your spouse need to apply for a court order or agree to pay child support.





Civil Litigation

How do I sue someone?


You begin by preparing statement of claim. A statement of claim is a document that spells out what you are seeking, from who and what happened. Once completed, the statement of claim will need to be issued at the courthouse prior to providing a copy to the person you are suing. The defendant then has 30 days to respond with a statement of defence failing which a default judgment may be granted.

If the amount of money or value of property in dispute is $25,000.00 or less, you must proceed through the Small Claims Court. If the claim is for more than $25,000.00 you may proceed to the Superior Court of Justice.

For certain claims however you must proceed through the Superior Court of Justice regardless of the amount claimed. The legal term for these claims is declaratory relief. That is, part or all of the claim is to have the court declare something to the public.




What can I sue for?


If you have suffered a loss or your rights have been interfered with, you may sue the person or entity who caused the loss or interfered with your rights.

That said, it is not wise to start lawsuits for trivial disputes or out of spite. If you do, you may be subject to costs sanctions. The court can force you to pay part or all of the defendant’s legal fees. If the court concludes you are a repeat vexatious litigant , then you may be barred from filing any further law suits without the court’s permission.

You should speak with a lawyer who can advise you on the viability of your claim(s).




How long does it take to get to trial?


The length of time it takes to get to trial depends on the complexity of your case. The complexity of a case in turn depends on the amount of the claim, the volume of documents, witnesses to be questioned, and the likelihood of settlement all play a role.




Are there other ways to resolve my claim?


Claims may be resolved by alternative dispute resolution. These include: arbitration, mediation and negotiation. These avenues are preferable to going to court. They are less expensive and shorter than the court process. Moreover, they allow the parties to customize the resolution procedure.




What are pleadings?


Pleadings are the initial documents in a lawsuit. Pleadings comprise of two categories of documents: claims and defences.

Claims

A lawsuit starts with a Statement of Claim. This document starts the law suit by setting out what is being claimed and the facts which support those claims. The rest of the pleadings are made in response to the Statement of Claim.

A defendant may, in response to the Statement of Claim, make claims against the plaintiff. To do so, the defendant must prepare a Counterclaim against the plaintiff.

Another document called a Crossclaim is made when there are two or more defendants. One of those defendants will make claims against the another defendant.

The Third Party Claim allows one or more of the defendants to make a claim against someone who is not already listed as a party in the Statement of Claim.

Defences

These documents deny the claims and or facts which are alleged to support those claims. A defence can come in several forms. When a defence is being made to a counterclaim it is called a Defence to Counterclaim. When it is made in response to a Crossclaim, it is called a Defence to Counterclaim. A defence to a third party claim is called a defence to third party claim.

Reply

This document responds to facts or allegations which are made in a defence and are not addressed in the claims. Replies follow the same nomenclature as defences. When a reply is being made in response to a counterclaim it is called a Reply to Counterclaim. When it is made in response to a Crossclaim, it is called a Reply to Counterclaim. If a reply is made in response to a Third Party Claim is called a Reply to Third Party Claim.




What are the Rules of Civil Procedure?


The Rules of Civil Procedure are rules established by the Courts for the conduct of civil litigation. They govern every step of the litigation. They are available online at www.ontario.ca/laws/regulation/900194.




Can I get the other side to pay my legal expenses?


The general rule is that the losing party pays a portion of the winning party’s legal expenses called costs. However, the court has considerable discretion in how, if, and to whom a costs award will favour. The way the party’s conducted themselves during the proceeding tends to guide the court’s decisions relating to costs. For example, if the winning side acted unreasonably during the proceeding by causing substantial delays, taking unnecessary steps, refusing reasonable offers to settle, not making any offers to settle, and generally impeding the flow of the court process, then the losing party may be entitled to costs. If the losing party displays said conduct, then he or she may be subject to an increased costs award.

There are three kinds of costs awards: partial indemnity, substantial indemnity and full indemnity. All else equal, a winning party can expect costs on a partial indemnity scale which is 50% - 65% of his or her legal expenses.

If the losing party acted unreasonably the costs award may be calculated on a substantial indemnity basis. An award on a substantial indemnity scale is an amount that is 1.5 times what would have been awarded on a partial indemnity basis.

The full indemnity scale is reserved for bad faith conduct. If a party acts in bad faith i.e. solely to inflict harm on the other party, he or she may be subject to paying costs on a full indemnity basis. That is, 100% of the other party’s legal costs.

Offers to settle are also very important when determining a costs award. Each party is encouraged to serve an Offer to Settle on the other party. If the offer to settle meets or beats the award granted by the court “beats” the amount in the Offer to Settle the other side will usually have to pay a greater portion of that person’s legal bill.

The date on which an Offer to Settle is made will determine the scale of costs awarded if that Offer to Settle meets or beats what was awarded at court. Any legal fees incurred prior to the Offer to Settle will be calculated on a partial indemnity basis. Legal fees incurred after the Offer to Settle will be calculated on a substantial indemnity basis.





How much does a divorce cost in Ontario?

Let's Talk.

21 King Street West (5th floor)
Hamilton, ON, L8P 4W7

T: (289) 768-1175

F: (289) 768-1176

E: anteneh@kassalaw.ca

Please note that the contents of this website are intended to be legal information only, and are not intended as legal advice. Please contact us for advice regarding your case.

Contact Us

© 2019 Kassa Law. Proudly designed by Greater Toronto Marketing.