The Basics
Some of the most common questions we are asked when we meet with new clients are, “When should I retain you?” and “How does all of this work?” A lot can be said about how and when a family lawyer can help, which will be covered in other posts. For now, here is a very high level description of some of the most common situations where family lawyers are retained.
Marriage or Cohabitation
If you are considering living together with a partner or getting married, you should consider a cohabitation agreement or marriage contract.1
Each party should retain their own lawyer.2 We’ve found that the parties can often talk through difficult issues with the assistance of their lawyers in these cases. It is possible to use a mediator3 if there are sticking points that can’t be resolved. The process usually starts with the exchange of financial disclosure, and each party seeks independent legal advice. Each person is expected to fully disclose income, assets and debts. This process could be extensive depending on the complexity of the assets or issues.
After each lawyer receives financial disclosure from the other party, they will speak with their client about future rights and obligations. They’ll explain how the usual property division rules apply to married couples and/or the law relating to potential claims, such as unjust enrichment, for common law spouses. They will also explain the law with respect to child and spousal support.
Some of the most common terms of marriage or cohabitation agreements are to protect a spouse who brings the matrimonial home or cottage into marriage, or to protect a family trust, business interest or future expected inheritance.4
Note that parenting time and decision making for future children cannot be pre-determined5. Any term of a contract relating to children may be varied based on the best interests of the child.
Armed with the necessary legal advice, the parties negotiate either directly or through their lawyers to come up with a contract which works for both of them. The process ends when the parties:
- enter into a contract,
- fail to reach agreement and proceed with the relationship without a contract, knowing the risks; or
- fail to reach an agreement and end the relationship
The last scenario is rare, but it does unfortunately happen if one party insists on having the protections of a contract and the other does not agree.
Separation and Divorce
If you are separating, you should consider a separation agreement and/or a divorce. The separation process generally starts the same way6 as marriage or cohabitation contracts – there is a discussion of rights and obligations with your lawyer and there is an exchange of financial disclosure to start. Even if there are only parenting issues to resolve, there may be child support claims which will require financial disclosure.
Financial disclosure can be a tedious process but an important one. We’ll explain more in a separate post about why financial disclosure is so important, but what you need to know is that “process” is just as important as substance for domestic contracts. If a person doesn’t fully disclose assets, income or debts, the contract they’ve entered into is at risk of being “set aside” or voided. The last thing anyone wants is to spend time and money negotiating a contract which, in the end, is never going to be upheld. For this reason, family lawyers focus on process as well as substance.
Separation type issues are resolved through direct negotiations (between clients and/or lawyers), mediation/arbitration, a collaborative process or through the use of a court process (litigation). Much can be said on each of these topics but for now, it’s useful to know there are options, and each case may require not just one but a combination of these processes. The end result is a separation agreement, court order or arbitral award.7
Parenting Disputes
Even in situations where parents have never lived together, family lawyers can assist in resolving disputes about parenting time and decision making. Negotiation, Mediation/Arbitration, or litigation can all be used in these types of cases. Ideally, the parties reach agreement on terms which are set out in a parenting plan. If they cannot agree, a court or arbitrator will make a decision.
Note that grandparents or other family members do not have the same rights as parents but we are nevertheless retained to help in some cases.
Child Protection Cases
Child protection agencies, such as the Children’s Aid Society, the Catholic Children’s Aid Society and the Jewish Family and Child Service will become involved if a parent, school, friend, therapist, judge, police officer or anyone else contacts them to warn that a child is in need of protection.8 Family lawyers can help where a parent, grandparent or anyone who stands in the place of a parent needs advice if there is agency involvement or to provide representation in court.
Child protection agencies don’t always start with a court application. Sometimes they begin an intake process which involves interviewing the people involved and possibly the child. If they are satisfied that the concerns are addressed, they will close their file. If the concerns are not addressed or in more urgent situations, there will be a court process for a range of possible outcomes, the most extreme being that a child is removed from their home and placed into care.
The involvement of child protection agencies, at least to a limited extent, is fairly common in high conflict family matters. It shouldn’t be assumed that in receiving a call from one of these agencies, that they are going to remove children from their homes immediately. It is possible that after the initial intake, the file may be closed if there are no concerns or if the concerns are being addressed.
Estate Planning
Parents who are planning to leave assets to their children often work with estates lawyers but may also need to consult with a family lawyer regarding domestic contracts for their children. If there is a family trust, for example, it’s useful to be specific in marriage or cohabitation agreements about the exclusion of trust income and/or assets and how they will be dealt with in the event of separation. Under s. 4(2) of the Ontario Family Law Act, for example, third party gifts or inheritances after marriage may be excluded from division of property in the event of separation, but there are exceptions to this rule.9 Income produced from these assets will not be excluded unless this is expressly stated by the donor.
Shareholder Agreements and Disputes
Family lawyers are consulted during the drafting of a shareholders agreement when shareholders want to specify what will happen if one of them separates from their spouse. If a shareholder separates, for example, it’s possible for that person’s spouse to seek disclosure and even a share of the other spouse’s interest in the company. It’s useful for shareholders to discuss these issues in advance and to plan for them in their shareholders agreements.
Finally, it’s common in many family law disputes for separating spouses to also be shareholders in a joint business. If they separate, the usual property division and support laws may be applied but they also have the ability to make claims under the Oppression Remedy of the Ontario Business Corporations Act.10 It’s useful for spouses to understand what their rights and obligations are post separation and so they may seek relief from the Court or defend a claim brought under s. 248 of the OBCA.
- To make sure there is enough time to negotiate a contract without either person feeling as though they are under too much pressure, these contracts should be negotiated very early. The process should start at least 6-12 months in advance and ideally earlier. If there isn’t enough time and the contract is last minute, the contract may later be voided. Even if you aren’t within the 6-12 months we recommend as a minimum, there may be options such as a “stand-still agreements” which you should discuss with your lawyer. ↩︎
- It is possible to negotiate an agreement even if one party refuses to retain a lawyer but there is a process for this. You should speak with your lawyer to ensure the appropriate process is followed so as to protect the validity of the contract. ↩︎
- It’s also possible to use a therapist to talk through difficult issues but you should seek legal advice before and during the process. It’s never advisable to enter into any agreement without legal advice which is independent from your partner. If you are entering into a ‘kitchen table deal,’ without advice your contract may not be upheld. ↩︎
- See below under estate planning and shareholder agreements or disputes. ↩︎
- See s. 56(1) of the Family Law Act, R. S.O., 1990, c. F.3 ↩︎
- There are urgent situations that may requires the start of a court proceeding as a first step. These may include one parent withholding a child or financial support. ↩︎
- Arbitral awards have the same force as a court order as they may be converted to an order. ↩︎
- Professionals have a duty to warn and to call a child protection agency if there is a child who needs protection. This can and will happen even if neither parent does not want the agency to become involved. ↩︎
- Pursuant to s. 4(2)(1) of the FLA, you cannot exclude a matrimonial home unless there is a domestic contract which expressly provides for this. ↩︎
- R.S.O., 1990, c. B.16, s. 248 ↩︎
