E M P A T H Y D E D I C A T I O N E M P O W E R M E N T
Answers to Frequently Asked Questions
There are so many areas to family law, and so many questions you might have. This page includes some of the questions we get on a daily basis. For specifics, please contact us by phone or email.
I've been served with divorce papers. What should I do?
The first thing you should do is immediately contact a family law lawyer. There are deadlines for filing court documents and if you do not take proper steps you could lose your legal rights.
Do I need to be separated for a certain length of time before I can apply for a divorce?
Usually you must be living physically separate for at least a year. You can start the proceedings before the year is up, but it can’t be completed until the year has passed. If you are seeking a divorce for abuse or adultery, you can apply for a divorce sooner than the one year period, but you should speak to a lawyer first to assist you with the details and court filings needed.
I am considering remarrying and we both have kids. Should I be talking to a lawyer first?
People who are remarrying usually have more complicated circumstances than people who are marrying for the first time. They are also aware of what can go wrong, so they recognize the need to think clearly about the assets they are bringing into the marriage. A well drafted domestic contract can bring a sense of security to the new marriage. Family law is constantly changing, so it is important to choose a lawyer who practises family law. They deal with these situations regularly and have the experience to handle your matters.
If I have lived common-law with someone, do I need to apply for a divorce after I separate?
No, divorces only apply to those officially married. However, other issues such as child custody and separation of assets (such as the matrimonial home), may be involved, in which case you would want to consult us for more information and guidance.
How does a judge decide on who gets child custody?
Ultimately, the court is looking out for the long-term best interests of the child. This involves the ties each parent has with the child, and the ability of either parent or guardian to properly care for that child. Sometimes the wishes of the child are also taken into account. The judge must also take into account any incidences of violence or abuse. If you are unsure ask a family lawyer for more information.
What happens to my pension if we separate?
Pensions are property to be valued and included in your net family property calculation. Pensions are notoriously difficult to value and may require the assistance of an actuary; however, as of January 1, 2012, there are changes to the law that should make it easier to value and divide pension assets. Be sure to collect as much information about your pension as you can and share this information with your family law lawyer.
I have a great job opportunity in another province. I'm afraid my ex won't let me take the children with me. What should I do?
While the Charter of Rights and Freedoms gives you, as an adult, the right to move, the courts have the right to determine what is in the best interests of the children. This may or may not be to permit the children to move. The issue of mobility often triggers a review of custody agreements. Mobility is an issue for both custodial and non-custodial parents; the cost implications for the parent who must travel to visit the children or have the children come to visit them must be examined. It's a good idea to see your lawyer before accepting the job, so that you understand the consequences of the move and get advice of the likelihood, in the circumstances, of the children moving with you if the other parent resists.
I think our marriage is over. Should I move out?
Not until you've seen a good family lawyer! This is a very serious question that family lawyers wish more clients would ask before they do anything. Anyone whose marriage is coming to an end needs a fast education in legal rights and obligations. Moving out can make a huge difference to the outcome of your case, like who gets custody of the children. If safety is a concern, leaving the home and seeking court-ordered protection may be the first thing to do after seeing a family lawyer. But all circumstances are different; you need to understand exactly what's right for you. Your consultation with a family lawyer will help you determine what is in your best interests over the long term.
How is my inheritance affected by a divorce or a separation?
The value of gifts or bequests you receive during your relationship from someone other than your spouse, which still exist as of separation, are generally excluded from equalization. However, if you do not keep the money separate and traceable, you may lose part or all of the exclusion. If you have received an inheritance or if you anticipate that a loved one has provided for you in their will, it is important for you to consult with a family law lawyer to discuss how to protect your inheritance from the equalization process if your relationship breaks down. The ability to exclude an inheritance can be lost by decisions made prior to separation should you fail to receive appropriate and timely legal advice.
Now that my spouse and I have separated, what should I do about my will?
Wills should be reviewed regularly and updated as your life circumstances change. The issue of breakdown and separation is a time to promptly revisit your will, or consider the need to make a will. Make an appointment to see your family lawyer to discuss the implications of separation on your will.
We have separated and I don't know anything about our bank accounts or our insurance. What should I do?
Since these situations can be very complicated, it's important that you get good legal advice as soon as possible. The law provides that when a marriage breaks down, there must be full financial disclosure on both sides so that informed decisions can be made in reaching an agreement about separation issues. We can tell you what information is required and help you to get access to documents in your spouse's possession.
Our son and his wife are separated and we're worried that we will not see our grandchildren again. What can we do? It is usually considered in a child’s best interests to sustain relationships with extended family members, and there are legal remedies available for this purpose. There are things that can be done, and a consultation with a family lawyer will help you to determine how best to protect your relationship with your grandchildren.