Family law deals with family relationship issues such as separation, divorce, child support, spousal support, adoption, guardianship, or property division. These issues can be daunting because of the emotions and tensions involved, and the uncertainty especially where the court is the decision maker. It is therefore important to understand the dynamics in family law so that the right decision is made with the help of a family lawyer.
The underlisted are relevant questions you can ask a family lawyer.
What should I do to get a divorce from my spouse?
First, you must have attempted reconciliation with your spouse. It is important to have a discussion
with your spouse to settle your differences. This could be done through family dispute resolution process. Section 7.7 of the Divorce Act R.S.C., 1985, c. 3 (2nd Supp.) also places a duty on your lawyer to discuss with you the possibility of reconciling with your spouse unless it is inappropriate to do so. If reconciliation fails, you may proceed to file a statement of claim for divorce. If you and your spouse agree on getting a divorce, you can file a joint statement of claim for divorce. However, the court will only grant divorce where there is a parenting and child support order if children are involved.
Can I separate from my spouse before filing a divorce?
Yes, you and your spouse can have a comprehensive separation agreement with relevant provisions such as property division and debts, spousal support and where children are involved parenting arrangements, and child support.
Can my child/children be involved in the proceeding?
No. You have a duty to protect your child/children from all conflicts arising from the divorce proceeding. Whatever decision you take must be in the best interest of the child/children because the involvement of children in conflicts is likely to affect their mental health, emotional stability, psychological and entire well being.
Can my child/children live with me or my spouse?
You and your spouse can develop a parenting plan which could be primary parenting, shared parenting, or split parenting. Primary parenting is where the child resides with one parent a majority of their time and the parent has majority responsibility to care for the child while shared parenting is where the child spends more than 40% of parenting time with each parent. Split parenting is where the parents have primary care of one of the children. To grant a parenting order, the court evaluates the best interest of the children by considering the child’s needs, child’s relationship with the parent, history of care of the child, the parent’s willingness to care for the child, cultural heritage as well as family violence.
I have a child/children. What is my spouse’s duty towards the child/children?
You and your spouse have a financial duty towards the children for their care or upkeep. The payment of spousal support by your spouse is determined by using the parenting arrangement, number of children, the annual guideline income of the paying spouse. The amount payable is determined using the Child Support Guidelines, but the court has the discretion to depart from the guidelines on the consent of both parties or where reasonable arrangements have been made for the support of the child/ children.
Am I entitled to any support from my spouse or partner?
Spousal support is not guaranteed as the court must first determine if you are entitled to support. Once entitlement to support is determined, quantum and duration for the support is determined. Section 15.2 of the Divorce Act requires the court to consider factors such as the length of time the spouses cohabited, functions performed by each spouse during cohabitation, and any order relating to support for either spouse. It is, however, important to note that where children are involved, your spouse’s duty is to first pay for child support before spousal support is determined. If you were common law partners, you can apply for support pursuant to the Family Law Act SA 2003, c F-4.5.
How should our family property be divided?
The presumption is that any property acquired during marriage or relationship of interdependence is divided equally under the Family Property Act, RSA 2000, c M-8 (“FPA”). Where equal division of the property would amount to unfairness, the court would exercise its discretion by considering factors such as contribution made as a parent or spouse, financial contribution, duration of the relationship. Where the property was acquired by gift, inheritance or acquired before marriage, or the interdependence relationship began, it is exempted.
An application for the division of the family property must be filed within two years of separation. However, where you or your spouse file an action for divorce, or judicial separation, the limitation period expires two years after the judgment.
How long will it take for my divorce to be finalised?
There is no definite time within which your divorce can be finalised as the divorce process depends on the cooperation between you and your spouse, as well as the court system and timelines. However, your divorce can be expedited in exceptional circumstances such as an upcoming marriage or pregnancy subject to a determination by a justice.
Is the court process the only means by which issues such as child support, parenting, spousal support can be dealt with?
No. You and your spouse can resolve these issues amicably through alternative dispute resolution (ADR) such as mediation, settlement meetings. At these meetings, you collaborate with your spouse to explore options that works for you both rather than leaving it for the court to decide. Whatever you agree on can be entered as a consent order and filed with the court.
What if I do not want to attempt ADR to resolve the issues?
You are mandated to participate in ADR as it is one of the four mandatory requirements that must be completed before filing a family action at the Court of Justice or Court of Kings Bench. Read more Family Law Mandatory Requirements
What is the outcome of my case if the court must decide?
There is no definite answer as this decision depends on your case, the evidence available, your spouse’s evidence, availability of witnesses, as well as the applicable legal authorities.
What are my legal fees?
There is no exact amount for legal fees as the fees is determined by factors such as amount of time involved on your file and the reasonableness of you and your spouse.
Contact the team at Watchmaker Law for a free consultation regarding your family law
issues.
