FAMILY LAW
Matrimonial or Family litigation usually involves the break up of a family and therefore almost always has an element of tragedy. Common issues are divorce, custody, access, support and division of the couple's assets.
DIVORCE
To obtain a divorce, a Petitioner must show that
a. the spouses have been separated for more than a year; or
b. the other spouse has been cruel, either physically or mentally to him or her ; or
c. the other spouse has committed adultery
Due to the short period of separation required before remarriage can take place, most Divorces now proceed on the separation ground.
DIVISION OF ASSETS
In Ontario, most assets accumulated during the marriage are divided equally upon the dissolution of the marriage.
SPOUSAL SUPPORT
Where one of the spouses is in need at the time of separation, the other spouse may be required to provide support to the other spouse. The likelihood of spousal support being ordered will increase if one spouse sacrificed a career for the sake of the other spouse or the children.
However, the Courts also place a high value on the parties starting afresh.
CHILD SUPPORT
Where there are children of the marriage, the Court will almost certainly order that the non-custodial parent provide payments to the parent having custody of the children.
The basic formula is to take the expenses referrable to the children and then to require each parent to contribute in proportion to their respective incomes. However new guidelines being promulgated by the government may modify this.
The rules for income tax deductibility of support payments will change on May 1, 1997.
CUSTODY AND ACCESS
Custody is awarded to the parent best able to take care of the children. If the parents are able to co-operate, joint custody where they both take care of the children, may be ordered. The test is the best interests of the children.
Access is awarded on the same basis. Access is almost always awarded unless there is very clear evidence that the children will be harmed by the access parent. A typical regime is every other weekend plus some holidays.
FAMILY LITIGATION
This type of litigation has the highest emotional charge to it. Often, each party feels the other is lying and therefore that he or she must lie and cheat to even out the playing field. On the other hand, there is often scope for mediation and settlement as well. Effective counsel must empathize with their clients while at the same time maintaining professional perspective.
Notwithstanding the clarity of the black letter law, many trial judges try to do what they think is fair in all the circumstances and this tendency must be taken into account when trying to predict the outcome of any matrimonial lawsuit.