The Family Law Act can be confusing for most people. In Canada, family law encompasses several areas. This might include marriage, cohabitation, separation, or divorce.
Also, it could be property division, parenting, or adoption. Lastly, many people need legal help with custody, domestic violence, spousal support, child support, and enforcing support.
Keep in mind that both British Columbia and Ontario have their own Family Law Act. Then there is also the Divorce Act, which is federal. The legal system encourages working with your partner to come to an agreement whenever possible. You might also work with family justice services, an agency that can help you resolve issues outside of court.
The Divorce Act and the Family Law Act
These laws vary by province across Canada, so contact a lawyer in your province to determine how the laws apply to you. Family property is important, so protect it with a cohabitation agreement or a marriage agreement.
The Divorce Act is very complicated, so get a lawyer to help you. It often involves the division of property and excluded property, and the rulings in the courts change all the time.
If you need legal aid, we have a lawyer we can refer you to. We don’t have legal aid lawyers. Do you want to increase contact with the child? Our top lawyers can help you with this by creating a custody agreement. The lawyers can also help you negotiate.
Three separate courts in Ontario address family law: Family Court, the Superior Court of Justice and the Ontario Court of Justice.
The Family Court handles all family law matters. The Superior Court of Justice oversees divorces, custody, and property division. The Ontario Court of Justice handles adoption, child custody, access to a child, child support, and protection of the child.
The law states that you and your spouse are equal partners when you marry. If the union ends, any property acquired while married and any increase in value to property acquired before the marriage will be equally divided between the two of you. However, some exceptions to the law can impact property division.
A marriage contract can address some aspects of the marriage but cannot include issues related to custody or negate equal access to the family home.
If you cohabitate and the relationship ends, you do not have the same rights to property that married couples enjoy. Instead, each party takes the property that they brought to the marriage. If you contributed to the value of property owned by your spouse, you might be entitled to compensation.
You might have the right to support if you have lived together for at least three years or if you have a biological or adopted child together. Your right to stay in the home will depend on a decision from the judge. You can protect yourself through a cohabitation agreement, which is similar to a marriage contract.
You also have the right to child support whether you were married or cohabiting if you have a child in common. The government has specific guidelines and tools to help you determine the correct amount of spousal support or child support when appropriate.
As a couple, you can address the terms of separation through the following:
- An informal agreement, either in writing or verbal
- By creating a separation agreement. This is written and signed by both of you and signed by a witness.
- An arbitrator or a mediator
- By getting a court order
It’s best to resolve these matters between yourselves unless your partner is violent.
A mediator is a professional, such as a lawyer, social worker, or psychologist. They, however, cannot give legal advice. They listen to you and help you determine what is best for your situation.
Seek legal counsel before talking to a mediator. An arbitrator is a lawyer, former judge, or psychologist who helps make decisions for both parties. These individuals do have the power to make binding decisions.
You can get a divorce once your marriage has legally ended if:
- If you have lived apart for more than 12 months
- When your spouse was involved sexually with another person or
- If your spouse was mentally or physically cruel.
A lawyer will provide you with relevant counsel on taxes, pension, support matters, and related issues.
Family Law Act and Contact With The Child
Custody – Custody determines who the children live with and who makes decisions about their welfare.
Joint custody – Both parents share equal custody and decision-making powers.
Access – Except in rare cases, you can spend time with your children even if you do not have custody.
Supervised access – You might have supervised visits with your children if the courts determine that safety is an issue.
The courts will enforce access and custody if needed.
Excluded Property Under the Divorce Act
The Family Law Act is the provincial act. Ontario and British Columbia each have their own Family Law Act.
The Divorce Act is the federal rule.
Both parents have a legal obligation to support the children financially. Child Support Guidelines of the Family Law Act set starting points to determine these amounts.
If the child is biologically yours, you will be held responsible for the child even if you never lived together. In some cases, stepparents also need to pay child support for non-biological children.
Spousal support means that the partner with more money might have to support the other person. However, the courts expect adults to take care of themselves as much as possible. The law takes many factors into account, including:
- Employment opportunities
- Contributions made to the household and family
- Contributions made to the other person’s career and
- Several other factors.
In some cases, common-law spouses have the right to support as well.
Domestic Violence and the Family Law Act
Domestic violence against your spouse is a serious crime in Canada. The law specifically prohibits physical and sexual abuse, but mental, emotional, financial and psychological abuse is also considered domestic violence. According to the Family Law Act, victims have the right to seek help for themselves and their children.
If your spouse faces criminal charges, you can receive notifications about the progress of the case. The Victim/Witness Assistance Program will also work with you. You might be assigned a family court support worker to help you through the court process.
Specific details regarding all family law matters can affect what you receive in a separation.
Do you want to know about the Family Law Act and the best interest of the child? Are you having a custody and access dispute? The test for determining the appropriate parenting arrangement can be hard.
As a guideline, it is always what is in the “best interests” of the child. Firstly, to determine the best interests of the child, the courts and legislation have formulated a test.
Secondly, this test contains factors a court should consider and make decisions on. Most often, the factors are considered and applied by affidavit or oral evidence from the parents.
The parents will outline their experiences to provide the best evidence they can. Further, they will try to show that their proposal for custody or access is in the best interest of the child.
Interests Of The Child And Family Law Act
However, evidence from the parents will always be missing a piece of information. It is missing information from the child regarding their thoughts, opinions, and feelings.
The Family Law Act is something clients come to discuss with us. The client wants to know what is in the best interests of the child in the eyes of the judge.
Therefore, this often leads to the question, will the court ever hear evidence directly from the child?
Divorce Act Lawyer Locations
- Oakville Family Lawyer
- Hamilton Family Lawyer
- Scarborough Family Lawyer
- Kingston Family Lawyer
- Burlington Family Lawyer
- Edmonton Family Lawyer
- Mississauga Family Lawyer
- London Family Lawyer
- Toronto Family Lawyer
Family Law Act and The Best Interests of Child
There are three ways that the court can obtain evidence directly from the child regarding custody and access.
First, if the child is old enough, they can be a witness or provide affidavit evidence. Second, if they are not old enough, the court can order an assessment of the child.
This can be done by a psychologist, psychiatrist, or social worker. Third, in Ontario, the court can order that the Office of the Children’s Lawyer should be involved in the matter.
They might have a lawyer appointed to represent the child’s wishes. Finally, the lawyer might also complete an investigation into the child’s wishes.
Physical Psychological And Emotional Safety
A parent may have a child swear an affidavit to put before the court setting out their wishes or have them appear to give oral evidence in court.
It is rare that the court will allow for children to give directly give evidence in this manner as it may cause the child harm. It will often only be allowed if the child is older and usually not until the child is a teenager.
A court can order that an assessment be completed by a psychiatrist, psychologist, or social worker. This might be done to provide insight into the best interests of the child.
They will also be looking into the needs of the child and the ability of the parents to meet the needs of the child. Typically, an assessment will only be ordered if there are clinical issues.
This might be concerned with the child’s mental health. Parties can also agree to have an assessment completed. One drawback of assessments is that they can be costly to obtain.
Office of the Children’s Lawyer
The Office of the Children’s Lawyer (OCL) is the most common method of ascertaining the children’s wishes in a custody and access dispute.
A court can order that a lawyer be appointed from the OCL to represent the child. The OCL would then have the responsibility of representing the child’s views and providing the court with context for those views.
A court can also order that instead of individual representation for the child that the OCL performs an investigation. They might prepare a report and make recommendations to the court on the child’s needs.
Further, the OCL has in-house social workers to complete such an investigation.
This organization is a government-run law firm. Their main focus is to protect children under the age of 18. Keep in mind children become adults in Ontario at age 18. In BC, it’s 19 years old.
The OCL helps children make decisions about their rights, most often during a divorce or separation of their parents. OCL has lawyers and psychologists that work for them.
The lawyers handle the legal side of the issue, and the psychologist provides expert reports. The psychologist normally provides the OCL lawyer a report that can be brought to family court.
When a family law judge reviews a report by the Office of the Children’s Lawyer, they do not have to accept it. If you do not agree with the report, you can hire a lawyer to argue why the report is incorrect.
Also, you can point out all the false assumptions that lead to the investigator reaching their decision. Therefore, it’s important to have a lawyer so you can present your evidence to the courts properly.
Determining The Child’s Best Interests
Often there will be a cross-examination of the expert in the courts. Both the lawyer for OCL and your family lawyer will be able to ask hard questions.
If you agree with the report, you want to make sure the expert looks credible. If you don’t agree with the report, you want to point out why the expert was wrong.
The OCL takes on around 11K cases per year. So it’s possible that they make many mistakes. Almost all of them are about parents fighting over the custody and access of the children.
These are very complicated matters. In order to be considered an expert and work at OCL, you need to have a master’s degree. They are not all psychologists with PHDs.
Have questions about the best interests of the child in Canada? Make sure to speak to one of the family law lawyers. The lawyers have experience assisting clients with custody and access matters.
Also, speak to us about self-represented coaching if you cannot afford a lawyer full-time.
Domestic Violence Family Dispute
You can also use the live chat in the bottom right of the screen to speak to us about your legal issue. Further, you can book a 15-minute consultation on our main page.
In conclusion, reach out to us if you have questions about the Family Law Act and the best interests of the child. Click here to watch videos about family law.
Author: Alistair Vigier is the CEO of ClearWay Law