Facts About Family Law
When you have decided to end your relationship with your spouse, there are a number of legal matters which must be considered. Your lawyer can make a request to the Court to grant you one or all of the following orders:
- Spousal support/maintenance
- Access (visitation)
- Restraining order
- Child support/maintenance
- Exclusive possession of the matrimonial home and household goods
- Division of the matrimonial home and matrimonial property
How It Works
In order to claim one or all of the above, your lawyer must first complete paperwork known as a ‘Petition’, which you will sign and will be filed in Court. The Petition will eventually be delivered to your partner personally and he will have to respond. To complete this Petition, your lawyer will need your original marriage certificate.
NOTE: Because the Petition is served on your partner in person, you should advise your lawyer if there are any safety issues. You may want to ensure that you know when this will be done so you can arrange for you and your children to be in a safe place.
There are a number of things which have to take place before a final settlement or an order is made. If you and your partner, together with your lawyers, cannot agree on a settlement, then a trial will have to be held. Because all of this takes time, you can ask a Court to decide what will happen in the meantime (ie. who will get custody, who can live in the house and how much support should be paid to you and your children by your partner prior to a final settlement). Generally, each person will tell the Court their side of the story using written documents known as Affidavits and Financial Statements which set out your financial circumstances. Your lawyer will prepare these documents using information you provide her/him with. A Judge in Court will read all of these written documents and listen to oral arguments given by your lawyer on your behalf and then make a decision (you do not have to go to Court at this point if you do not want to). The Judge’s decision is called an interim order – it sets out what will happen until a final order is made or until you and your spouse reach a legal agreement.
Until a final order or settlement is made, the interim order will stay in effect. However, if at any time there is a significant change in circumstances of either you, your spouse or your children, any order or agreement may be changed.
It is the duty of every lawyer to advise their client, in appropriate circumstances, that the Divorce Act promotes reconciliation if at all possible. If reconciliation is a possibility, your lawyer can advise you of counselling facilities that may be of assistance. It is also the lawyer’s duty to advise the client about the possibility of mediation, that is, where a third uninterested party will attempt to negotiate a settlement through discussions with both parties. Mediation may not be an option in some circumstances, for example, where one partner clearly has control over the other.
You may start an action for divorce (with a petition) if you:
a. Are living separate and apart from your spouse,
b. You or your spouse commits adultery,
c. Your spouse has subjected you to intolerable physical or mental cruelty.
To actually obtain a divorce judgment, you must file additional documents which ask for a judgment.
If you have separated and want a divorce, you do not have to wait one year before you see a lawyer and start the claim. The claim may be made at any time as long as you are currently separated. Once you have been separated for a year, you may apply for the divorce judgment.
A husband and wife are separated when they have a settled intention not to live together as such. When you are no longer living together as husband and wife, you are legally separated. You do not have to obtain an order or paper of any kind to say that you are separated (ie. there is no such thing as a ‘legal separation’ which requires more than an intention to live separate and apart).
A husband and wife may attempt to reconcile their differences by living together again after they separate. As long as such reconciliation efforts do not add up to more than 90 days of living together, they will not interfere with the one year separation period nor will such reconciliation efforts necessarily mean that any acts of adultery or cruelty have been forgiven.
Custody and Access
A Court will generally grant:
1. Custody of the children to one parent (sole custody) and access (visitation) to the other parent
2. Custody of the children to both parents (joint custody) with the principal residence to be with one of the parents.
The parent with custody generally has the right to make all of the day-to-day decisions regarding the child’s care and upbringing and has the responsibility to see that the child’s needs are met. Usually the custodial parent may also make all of the major decisions with respect to health, education, religion, etc., however, this will often depend on the agreement that is made between the parents.
The parent with access has the right to request and receive information regarding the child’s health, education and welfare unless otherwise ordered. Very rarely will a Court deny a parent access completely. If there are safety issues, access may be restricted and/or supervised. In making decisions that involve children, the Court’s main concern is always what is in the child(ren)’s best interests.
A Court may order your husband to pay support for yourself (spousal support) and/or for your children (child support). At the beginning, the Court’s main considerations in making an order will be your need for support and his ability to pay support. The amount will vary accordingly. It does not matter who left the relationship or why the relationship ended (for example, you will not be ‘punished’ because you left him, you saw someone else, etc. and vice versa).
With respect to child support, the Federal Government has implemented guidelines which include tables, setting out approximately how much support a father should pay per child per month based on his annual gross income. This is a guideline only and there are other factors which may cause a Court to increase or decrease the award.
With respect to spousal support, when a final order or agreement is to be made, the amount of support you may receive and the length of time which your former partner will be obligated to pay you support will depend on a number of factors including:
- Your need;
- Your ability to become self-sufficient;
- Whether you were economically disadvantaged as a result of the marriage (ie. you were out of the work force for a number of years because of child-rearing responsibilities);
- His ability to pay.
If your former partner does not make his support payments regularly or at all, you may register your order or agreement with the Maintenance Enforcement Office (MEO). The MEO can garnish his wages, unemployment payments, etc. to ensure you receive your payments. There is no cost to you.
Exclusive Possession of Property
You may ask the Court to grant you exclusive possession of the matrimonial (family) home and household goods (ie. furniture, cars, etc.) which allows you to live un-harassed in the family home. This order is generally made on an interim basis (ie. for now, until the parties can agree otherwise) or until all of the children grow up and leave the home. Depending on your financial situation, the order may stipulate that your former partner pay the rent or the mortgage for the matrimonial home.
Division of Property
The Court assumes that all of the property owned by either or both of the parties at the time that legal proceedings start shall be divided equally between the parties. The law assumes that in a marriage there is a joint contribution, whether financial or otherwise, by the spouses and each spouse is therefore entitled to an equal distribution of the property, except in certain circumstances.
Generally, the value of property acquired before the marriage will not be divided, however, any increases in value is shareable. For example, if the husband owned a quarter of land prior to the marriage, the value of the land at the time of marriage (ex. $15,000.00) will not be divided. However, when you divorce 15 years later and the land is now worth $35,000.00, the increase of $20,000.00 will be equally divided between the spouses.
The matrimonial home and household goods however, will almost always be divided equally even if brought into the marriage by one of the spouses. If you are concerned that your husband will sell or waste the matrimonial property before you can receive your share, you may ask for an order which limits him in dealing with the property.
Your lawyer can also apply for an order which restrains a person from molesting, annoying, harassing, communicating with or otherwise interfering with you or a child in your custody. A Court will not make this order merely because it is requested. The Court must be convinced that such an order is necessary.
If the circumstances warrant, it is often quicker and easier to obtain a restraining order through the police, either through an Emergency Intervention Order or criminal charges.
In Saskatchewan a ‘common-law’ relationship for the purpose of spousal support is legally defined as a man and a woman who:
a. Have lived together for 2 years; or
b. Have lived together in a relationship of some permanence and are parents of a child.
A common-law may be ordered to pay you spousal support and in making that determination the Court will look at considerations similar to those with a married couple as set out above.
You are allowed to leave with all of the property that you took into and acquired while in the relationship. However, either person may make a claim for a share in the property acquired by the other person during the relationship. In a marriage it is assumed that the property will be shared when the relationship ends. However, in a common-law relationship, the person must prove that they are entitled to receive a share. For example, if it has been a relatively long relationship where the woman raised their children and took care of the house while the man worked, she would likely be entitled to a share of the property acquired during the relationship.
No legal process is required to end a common-law marriage. It ends when the two parties stop living together.
Where a child is born as a result of a common-law relationship, the parents are joint legal custodians unless a court order is made that one of the parents has sole custody or the parties enter into an agreement changing custody. However, where unmarried parents have never lived together after the birth of the child, the parent with whom the child lives is the sole legal custodian unless otherwise ordered or agreed. A father is always obligated to support a child, regardless of the marital status of the parents.
What Should You Take When You Leave a Relationship
When you leave a relationship, it is a good idea to take the following items:
- Your personal belongings;
- Your marriage certificate;
- Passports, birth certificates, etc. for you and your children;
- A copy of the Certificate of Title to your house, if available;
- Bank records.
Any matrimonial property which you take will eventually be dealt with in the division of property. Either person who is named on a joint bank account may withdraw any amount. Again, this money is property which you may eventually have to account for, therefore you should keep a record of what it was used for. For example: daily living expenses; child care; bill payment.