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Family Law

Divorce

We are sensitive to the fact that the breakdown of a relationship is very difficult and are supportive in representing clients through to a fair and reasonable settlement. Upon the breakdown of a marriage, critical issues surrounding your children, property rights or finances may arise. It is often difficult for all those involved in the divorce and separation, owing to the onerous and emotional experience associated with the breakdown of a relationship. At Nzemeke Law, we keep your best interests at the forefront of our negotiations while ensuring the process runs as smoothly as possible.

Grounds for Divorce:

separation and divorceIn Canada, S. 8 of the Divorce Act speaks of only one ground for divorce, that being a breakdown of the marriage. However, a marriage breakdown could be established in three ways, including a no-fault ground and fault grounds. Either spouse may initiate a divorce action at any time after separation provided the parties must have lived separately and apart for at least one year at such time that the matter is before a judge. A person petitioning their spouse for divorce involving an allegation of fault against that spouse may do so based on either adultery and/or cruelty (physical or mental).

Types of Divorce:

Divorces may be contested or uncontested. In a contested divorce, spouses do not agree on the reasons and/or terms for the divorce and must file separate divorce applications. In an uncontested divorce, both partners agree to the reasons and terms of the divorce and need only one application.


Custody and Access

Child Custody laws in Canada govern things like:

• Parental responsibility and right to make decisions affecting the child.
• Who a child will live with (with one parent or both parents).
• Who a child will have contact with and the extent of such contact.

At the time of separation, the parents must make a decision about the custody of the children. If the parties are unable to agree on the issue of custody, then the courts must decide. “The best interests if the child” is a major factor, relied upon by the courts in determining custody cases in Canada. This factor includes;

• the child’s physical well-being,

• the child’s financial needs;

• the child’s wishes (this factor increases in importance with the child’s age),

• the child’s religious and ethical upbringing,

• the parent’s understanding of the child’s needs,

• a child’s emotional well-being and security

• the applicant’s plan for the child’s education and maintenance,

• the child’s religious and ethical upbringing,

• the parent’s understanding of the child’s needs,

• the bonding between a child and his caregivers, and,

• the benefit of keeping siblings together

Who May Apply for Custody?
In Canada, an application for custody may be made by not only biological and adoptive parents but also a stepparent, grandparent, or other third party may wish to seek an order for custody of or access to a child.


SPOUSAL SUPPORT

Who is entitled to claim support?

Parties entitled to assert a claim for support include married and common-law spouses. The fact that a spouse has entered into a new relationship does not disentitle him or her to support.

Spousal support could be contractual (by express or Implied agreement between spouses), compensatory (where a spouse who has suffered economic disadvantages or has contributed to the economic advantage of the other spouse is compensated) or non-compensatory/needs based (a claim for spousal support based on need, means and other circumstances of the recipient spouse).

The factors that determine the entitlement to support and the amount of support between married and common law spouses are similar. The court takes into consideration, the condition, means, needs and the circumstances of each spouse, which includes;

• the length of time the spouses lived together,

• the role played by each spouse while married,

• pre-existing orders or agreements with respect to support between the parties,

The goal of asserting a claim for support is essentially to;

• recognize economic advantages or disadvantages to a spouse arising from the marriage or its breakdown,

• to divide and allocate the financial consequences arising from child care between the spouses,

• to ease the burden of economic hardship resulting from the marriage breakdown and to promote self sufficiency of the spouses.

Contact us today for a one hour FREE consultation, if you need to determine; whether you are entitled to spousal support, the duration or the amount of support payable whether an existing support order may be varied owing to a significant change in circumstances.


Married/Formally Married Spouses:

Married or formerly married spouses (including legally married same-sex couples) have a right to seek a division (equalization of net family property) in accordance with the Family Law Act. The Act lays down a formula which calculates the growth of each spouse’s net worth from the date of the marriage to the date that they separate and equalize the difference between them. the right to seek an equalization arises when;

• a divorce is granted

• a marriage is declared a nullity

• the spouses are separated and there is no reasonable prospect to resume cohabitation

• one of the spouses dies, or

• a serious danger arises during cohabitation that one spouse may improvidently deplete his or her net family property.

Unmarried Couples

Generally, an unmarried party’s entitlement to property is purely determined by ownership in that property. However, if the unmarried party without ownership of property paid or contributed money or work towards the acquisition, preservation or maintenance of the property, such a party may have a right based on the common law principles of property ownership and equitable principles of trust. It is highly recommended that you discuss your property rights with a family law lawyer upon the breakdown of your relationship.

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