FAQs 2016-12-21T03:29:06+00:00

Do you have questions about Family Law and Fertility Law in Canada? Read our FAQs

Family Law

Divorce and Separation

What is the basis of a ‘divorce’? 2017-02-17T17:28:22+00:00

To get a divorce in Ontario:

  • You need to be separated from your spouse for at least one year; OR
  • You need to prove adultery; OR
  • You need to prove cruelty.
What is the difference between being separated and being divorced? 2017-02-17T17:29:41+00:00
  • Divorce is the legal termination of your marriage. A court order is required for this.
  • You cannot remarry unless you are divorced.
  • Separation means you are living ‘separate and apart’ from your spouse. You can be separated, and not divorced. A court order is not required to be ‘separated’.
Do I need an agreement to be separated? 2017-02-17T17:29:59+00:00

No. However, an agreement, is a very effective way to settle the following issues:

• Child support
• Access/custody
• Spousal support
• Division of property
• Division of debts

Can I be ‘separated’ and still living in the same house as my spouse? 2017-02-17T17:30:14+00:00

Yes, provided that you are not living as a couple.

Children

What is ‘custody’? 2017-02-17T05:05:43+00:00

Custody means who makes decisions for the children.

What is “Joint Custody”? 2017-02-17T05:05:54+00:00

Joint custody means the parents jointly make decisions with respect to the children.

What is residency? 2017-02-17T05:06:00+00:00

Residency is where the children live.

Can I have joint custody if the child doesn’t live with me full-time, or half-time? 2017-02-17T05:06:06+00:00

Yes. As noted above, custody is not where the children live

Does my child have a say in where he/she wants to live? 2017-02-17T05:06:15+00:00

Starting at about 12 or 13 (depending on the maturity of the child), the older a child is, the more input the child will have in determining where he/she will live.

Child Support

Do I need to be married, or living common law, with the other parent, in order for me to be required to pay child support? 2017-02-17T05:09:25+00:00

No

What is the basis for child support? 2017-02-17T05:09:35+00:00

In Canada, there are child support guidelines. What you pay for child support depends on your income and how many children there are.

How long do I have to pay child support for? 2017-02-17T05:09:45+00:00

This can vary, depending on the situation of the parents and the child. Typically, support is paid until the child is finished his/her first post-secondary education degree/diploma. However, there are a number of issues that will impact whether this happens or not.

Spousal Support

Do I pay spousal support just because I was married? 2017-02-17T05:09:57+00:00

No

Is there a potential spousal support obligation in a common law situation? 2017-02-17T05:10:05+00:00

Yes

If I’m not married, how long do I have to be living with someone before I may be required to pay spousal support? 2017-02-17T05:10:12+00:00

A minimum of either three years, or, if you have a child together, a ‘relationship of some permanence’.

Will I have to pay spousal support for the rest of my (or my ex’s) life? 2017-02-17T05:10:19+00:00

That only applies in specific circumstances

If my ex remarries, does that mean I don’t have to pay spousal support to her/him anymore? 2017-02-17T05:10:25+00:00

No. Remarriage of your ex does not automatically terminate a spousal support obligation

Property Division

Do I have to give my ex ½ of everything I own when we separate? 2017-02-17T05:10:44+00:00

Property division depends on values – you do not necessarily give ½ of each asset. The value of all the assets, and debts, of each of you, are totaled as at two time periods: date of marriage and date of separation. It is the increase in each of your total net worth values from the date of marriage to the date of separation that is considered in the property division-with a number of rules, regulations, and exceptions

Do I have to share the value of property I own in another country? 2017-02-17T05:11:00+00:00

Yes; however, it will depend on when you acquired it (i.e., before or after the marriage) and how you acquired it (i.e., purchase, gift or inheritance)

Do I have to share the property I owned before I got married? 2017-02-17T05:11:07+00:00

Generally, no. You only share the increase in value of the property from the date of marriage to the date of separation. However, there are exceptions to this as well. The biggest exception is a house: if you own a house on the date of marriage, and you are living in that same house as a married couple on the day you separate, you may have to share in the whole value of that house, and not just the increase in value from the date of marriage.

Do I share my inheritance with my spouse? 2017-02-17T05:11:13+00:00

Subject again to a variety of exceptions, generally, no. One exception is as follows: if you take inheritance money and ‘co-mingle’ it with your spouse (for example, put it in a joint bank account), you will generally have to share it with your spouse.

My aunt gave me a painting after we got married. Do I have to share that value with my ex? 2017-02-17T05:11:20+00:00

Generally, gifts from third parties acquired after the date of marriage are not shared. This is subject to rules, regulations and exceptions

Debts

Do I have an obligation to pay any of my ex’s debts? 2016-12-10T23:51:24+00:00

With some exceptions, you will generally not have an obligation to pay your ex’s debt. However, the debt situation of each of you will impact each of your net worth values. As a result, it will impact how much one of you may have to pay the other for property division.

Process Options

Collaborative Practice 2016-12-11T00:10:56+00:00

Each spouse has his/her own collaboratively trained lawyer. There is a commitment not to go to court, and to negotiate in good faith. The main premise is to attempt to minimize the destruction separation/divorce can have on the family, and to maximize the opportunity for a creative and enduring agreement.

Arbitration 2016-12-11T00:09:39+00:00

A senior lawyer acts as ‘judge’, and makes a decision. Each spouse has his/her own lawyer. This process does not occur in a courtroom, and many court rules do not apply. However, there is opportunity for a decision to be appealed to a court and the decisions can be binding

Mediation 2016-12-11T00:08:43+00:00

One professional assists the couple to reach a separation agreement. The mediator is not there to give legal advice. Each spouse must have his/her lawyer to provide independent legal advice with respect to the legal issues

Traditional Negotiation 2016-12-11T00:05:57+00:00

The two lawyers attempt to negotiate a settlement, which if successful, is then incorporated into a separation agreement. If not successful, may end up in Court or an Arbitration. When there is motivation to settle out of court, this can be referred to as ‘Settlement Negotiation’

Litigation 2016-12-11T00:05:18+00:00

The spouses proceed to court to have a judge make a decision

‘Prenuptial’ Agreements, Otherwise Known as Marriage Contracts

Can I sign a ‘pre-nup’ after the wedding? 2017-02-17T05:11:53+00:00

Yes. It is a common misconception that these agreements are not valid unless they are signed before the wedding. However, once people marry, the motivation to sign a marriage contract may be considerably reduced.

Do we have to get married to have an agreement about our property? 2017-02-17T05:11:59+00:00

No. If you wish to protect certain property, you can enter into a cohabitation agreement. This is a legally binding agreement; you do not have to be married for such an agreement to be valid.

Can custody of future children be dealt with in these agreements? 2017-02-17T05:12:06+00:00

No

Fertility Law

Reproductive Technology

Surrogacy and Fertility

Are surrogacy, egg donation and sperm donation legal in Canada? 2016-12-11T00:30:16+00:00

Yes. Surrogacy, egg, and sperm donation are legal in Canada. Payment of a fee for these activities, however, is NOT legal.

Is surrogacy legal in the United States? 2016-12-11T00:37:09+00:00

Surrogacy in the US is governed state by state. In some states, surrogacy is legal – however, payment of a fee to a surrogate is not legal. In other states, even unpaid surrogacy is not legal, and in some states, payment of a fee to a surrogate is legal.

What is the difference between a ‘traditional’ surrogate, and a ‘gestational’ surrogate? 2016-12-11T00:38:09+00:00
  • A ‘traditional’ surrogate is a woman who carries a child that is her biological child.
  • A ‘gestational’ surrogate is a woman who carries a child that is not her biological child.
Can I pay anything to a surrogate, or egg/sperm donor, in Canada? 2016-12-11T00:31:12+00:00

Yes. You can pay expenses. So far, the law has not provided a definition of what ‘expenses’ means, however.

Can the surrogate’s loss of work-related income be reimbursed? 2016-12-11T00:31:50+00:00

The Assisted Human Reproduction Act, which is legislation governing surrogacy in Canada, provides a section for reimbursement of loss of work-related income to a surrogate, IF, in the written opinion of the attending doctor, continuing to work poses a risk to the surrogate or the fetus. A receipt must be provided, and the reimbursement must be in accordance with ‘regulations’. However, this section is not yet law

Can the egg/sperm donor’s loss of work-related income be reimbursed? 2016-12-11T00:33:46+00:00

The law currently does not specifically provide for reimbursement of loss of work related income to a sperm or ova donor.

Do I need an agreement to enter into a surrogacy arrangement? 2016-12-11T00:39:41+00:00

Clinics and doctors will generally want a signed agreement for their records before the embryo transfer occurs. The agreement sets out the expectations of all concerned, and is a useful and helpful way of dealing with many issues that may otherwise not be considered and discussed in advance. It is preferable to have such an agreement.

Can the surrogate and intended parents use the same lawyer for the agreement? 2016-12-11T00:41:05+00:00

No. The Intended Parents should have one lawyer. The surrogate should have a different lawyer. This is to ensure all concerned have legal advice that is independent, and without conflict to the other’s interests

Birth Registration

If we use a surrogate, can the child’s birth be registered in both our names even if we are not married? 2016-12-11T00:52:56+00:00

Generally, yes, but it can depend on the province in which the child is born

If we use a surrogate, can the child’s birth be registered in both our names even if one, or both of us, is not the child’s biological parent? 2016-12-11T00:52:24+00:00

Again, this depends on which province the child is born in. In Ontario and British Columbia, the answer is generally, yes

How is the birth of the child registered if we use a surrogate? 2016-12-11T00:47:32+00:00

This depends on which Province the child is born in

Adoption

How is adoption governed? 2016-12-11T00:56:19+00:00

Adoption is governed provincially. Each Province has its own distinct laws

Can I adopt my wife’s child without a social worker report? 2016-12-11T00:55:45+00:00

Yes. Typically, if you are proceeding with a stepparent or relative adoption, a social worker report and government approval is not required

Do we have to adopt the child our surrogate gives birth to? 2016-12-11T00:54:55+00:00

This depends on the province the child is born in. In Ontario and British Columbia, generally, you do not have to

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