When a lawful marriage breaks down and the parties wish to end their relationship, either party may apply for a divorce. Divorce actions generally deal with the divorce itself, as well as matters pertaining to child custody and maintenance, access to the children, spousal maintenance and the division of matrimonial property.
A divorce will be granted when a spouse proves one of the four grounds: One Year Separation, Mental Cruelty, Physical Cruelty or Adultery. The One Year Separation is the "no fault" divorce. Neither party has to accuse the other of anything other than living separate and apart for at least one full year. The acrimony of accusation can often be avoided if the parties can manage to live separate and apart from one another for one year. Usually the parties are already separated by the time they start to consider divorce proceedings. Spouses should not move out of the matrimonial home without understanding the potential legal consequences of doing so.
Child custody can be a problem if the parties cannot agree on what living arrangement would be best for their children. Parliament and the courts favor the concept of joint parenting where neither parent has sole custody. Joint parenting can be exactly equal such as one one week with each parent or unequal with the children living with each parent from time to time. Some suggest that the best joint custody arrangement is one where the children simply float back and forth between the parents' homes as they see fit. Joint custody becomes more difficult as parents move away. The essence of the joint custody is that both parents are willing and able to put aside their own differences in order to do what is best for their children. They collaborate on issues such as education, health, child care and religion. They keep one another informed and often help one another deal with the children. At the opposite end of the spectrum is sole custody to one of the parents with limited and specified access to the other. This usually follows from a highly dysfunctional family relationship. In between is sole custody to one one parent with liberal and generous access to the other.
Child maintenance is now simplified by the federal Child Support Guidelines which specify how much the non custodial parent will be required to pay based upon their income. Special rules apply to those who may be self employed. Extraordinary expenses and child care expenses are added to the basic Guideline amount. The courts have been reluctant to limit access in cases where the non custodial parent refuses to pay maintenance. Usually maintenance is directed to be paid through the provincial Maintenance Enforcement Program which undertakes collection proceedings if maintenance is not paid in accordance with a court order.
Spouses who become financially dependent on the other due to the marriage may qualify for spousal support. Spousal support is not intended to be a lifetime pension, rather, an amount paid to the spouse in the weaker financial position to enable them to recover from an economic disadvantage suffered as a result of the marriage.
The general rule for the division of matrimonial property, including debt, is that it be split equally between the parties. In some cases, an unequal division is ordered. There are special rules and exceptions for gifts, an inheritance and other certain property.
For more information, contact Herb Beswick, Q.C., Kelly Christie or Roy Davidson.