Ready to help you with all your legal matters.
At Shankar Law, we have experience in the following types of family cases:
Adoption - Including challenging an adoption
Spousal and child support
Domestic violence and spousal battery
Matrimonial home and property disputes
Unjust enrichment and common law cohabitation
Custody and access to children
Children's Aid cases (CAS)
Restraining and Refraining Order
Cases related to the Hague Convention and cross-border travel of children
Separation, Pre-Nuptial and co-habitation agreements
Urgent/Emergency Motions pertaining to Family Law
Family cases can particularly be difficult and emotional.
I promise that as a team, we will advise and support you through the complexity of the case right through to its entirety. We are solution focused and will do our utmost to reach an acceptable solution without a trial, as trials are very costly. In the event that a trial is needed, we will take you through the trial as efficiently as possible.
I work with the excellent staff at Shankar Law Office to quickly and effectively process your cases - from the initial application to the end through either the Ontario Court of Justice or the Superior Court of Justice.
I will maintain open communication to determine your instructions at every stage; whether it is drafting, finalizing, or submitting documents to the Court. Documents will always be filed in a timely matter. We will provide you various options that you can exercise as the case progresses.
Custody and Access
When two people have a child, they each have an equal right and equal responsibility to raise their child. They have
an equal right to make decisions about their child’s care and upbringing. This is true whether the parents are married
or not. When parents live together, they can make decisions about their child’s care and upbringing together on a
day-to- day basis. As a couple, they work out how they spend time with and share responsibility for their child. When
parents do not live together, they must arrange how they will share their parenting rights and responsibilities.
What types of decisions do parents who do not live together need to make?
Parents who do not live together must make decisions about:
• where their child will live
• how much time each of them will spend with their child
• how they will make decisions about their child’s welfare and upbringing
• what role each of them will play in caring for their child.
These are decisions about what the law calls “custody” and “access”.
What is Custody?
Custody is the right to make the important decisions about the care and upbringing of a child. For example, the child’s religion, school and educational programs and medical treatment. If parents disagree about what is best for the child, it is the parent with custody who gets to make the final decision. In addition to decision-making, custody normally includes the physical care, control, and upbringing of the child. The child usually lives with the parent who has custody.
What is Access?
If one parent has custody of a child, the other parent usually has access. Access is the right to spend time with a child and the child’s right to spend time with that parent. Access also includes the right to ask for and be given information about a child’s health, education, and welfare. The parent with custody has an obligation to keep the parent with access informed about these matters. In addition, other authorities, such as the child’s school, doctor, and daycare providers, must provide any information or reports requested by the parent with access, in the same way that they provide these for the parent with custody. However, the parent with access does not have the right to make decisions about how their child will be raised.
What are the different types of Custody?
In this situation, one parent has sole custody and the other parent has access. The child lives, most of the time, with the parent who has custody, and that parent has the legal right to make all the major decisions about how to raise the child. The child may spend time with the parent who has access, and may even regularly stay at his or her home. However, the main responsibility for raising the child and the right to make important decisions regarding the child belongs to the parent with custody.
Another type of custody arrangement is joint custody. Parents who have joint custody share the rights and responsibilities of custody even though they live apart. Both parents have the right to make decisions about their child. Joint custody is more about who can make decisions concerning the child than it is about the time the child spends with each parent. The child might live half the time with each parent or most of the time with one parent. Either way, both parents have the right to make decisions about important matters concerning their child.
Joint custody needs lots of co-operation and works best when the parents share the same ideas about how to bring up their child. Courts are reluctant to order joint custody if both parents do not agree to work together.
Temporary or “interim” custody. When parents go to court to get a decision about custody and access, or when custody and access are decided in connection with a divorce or other issues, the process can take a long time. If the parents cannot agree about where the child will live in the meantime, either parent or both of them can ask the court for a temporary order. A temporary order sets out what the custody and access arrangements will be until the court hears the case and decides all the issues.
Because the courts consider stability important for a child’s welfare, the parent with temporary custody often has an advantage when the judge is deciding which parent the child should live with permanently. The longer a temporary custody arrangement has been in place, the more important this becomes for the final decision. This is also true if there is no court order and the child is living with one parent, with or without the other parent’s consent. It is important for a parent to act quickly if he or she wants to change existing custody arrangements.
Instead of sole custody or joint custody arrangements, some parents choose to negotiate “parenting plans”. These plans can take many forms and some are more detailed than others. But most include the rules the parents will follow in order to make their co-parenting work best for their child. Often parenting plans include things such as the role and responsibilities of each parent, how the parents will communicate with each other about the child, and how decisions about the child will be made.
Plans usually include the process to be followed to make changes or resolve conflicts. Some plans simply set out these and other rules for co-parenting. Others go into much more detail. They can cover things such as the child’s schedule with each parent, whether or not the child’s surname can be changed, what school and doctor the child will go to if either parent moves, and whether the child will be permitted to play contact sports or watch certain types of television programs.
Parenting plans are agreed to by parents after they have negotiated the terms themselves, through their lawyers, or in mediation. They are normally not ordered by the court. When there is a lot of conflict between the parents, parenting plans may not be a good idea. In that situation, it may be better to have standard custody arrangements that are clear about which parent has authority. They are easier to enforce and easier for schools and other authorities to follow.
Sometimes the term “shared custody” is used in a court’s decision about child support. This term has nothing to do with what is usually meant by “custody”. Usually custody is about who has the right and responsibility to make decisions affecting the child, or whom the child lives with. However, shared custody has to do with the amount of time the child spends with each parent for figuring out how much support should be paid.
Even if one parent has sole custody, when a child spends at least 40% of their time with the parent who has access, the parent with access is said to have “shared custody” for the purpose of figuring out how much support he or she must pay. The 40% can be made up of weekends, overnights, and parts of vacations. If the child spends at least 40% of the time with the parent with access, the parent with custody might receive less child support.
What are the different types of access?
Often, if the parents can agree, access arrangements are left open and flexible. This can be done whether custody and access are decided by an agreement between the parents or by court order. The agreement or order does not specify when or how often the parent with access can spend time with his or her child. Instead, it simply states that one parent is to have custody and the other parent is to have “reasonable access”. This allows the parents to informally work out an arrangement that is the most convenient for them and that can be easily changed if their circumstances change.
Fixed or limited access
Other times, the terms of access are fixed, either by written agreement or by court order. The order or agreement sets out how often the access visits will take place, how long they will last, and may give the exact times for the visits. Some orders also specify where access will take place, or other conditions of access.
Under some circumstances, a judge might order that someone else must be there when the access parent and the child are together. The other person might be a relative, a friend, a worker at a supervised access centre, or a Children’s Aid worker. Supervised access is ordered when the judge has concerns about how the parent with access will behave while he or she is with the child. For example, if the parent with access has a drinking problem or drug problem, has abused the child in the past, or has threatened or tried to take the child away from the parent with custody, the judge might order supervised access.
Special access arrangements might also be made if there is a history of the parent with access abusing the parent with custody. The law says that a parent’s past behaviour should not be considered when deciding custody or access unless that behaviour affects his or her ability to act as a parent. It also says that a child should see each parent as much as is consistent with the child’s best interests. Instead of refusing access to a parent who has abused the other parent, some judges might order that the parent with access cannot pick the child up at the child’s home. The child must be taken to see the parent with access by someone other than the parent with custody.
Refusal of Access
Only in the most extreme cases will a judge deny a parent access. For example, access might be denied when serious child abuse has been proven and the abusing parent refuses treatment. A parent cannot refuse to pay child support because he or she cannot get access or chooses not to visit his or her child. But, access will not be denied because a parent fails to pay child support. There are other ways to get support from a non-paying parent.
Who can get custody and access?
Usually it is a child’s biological or adoptive parent who gets custody. But in some cases other family members, such as a grandparent, step-parent, or an aunt or uncle can get custody. The law allows any person to apply to the court for custody, but it is harder for a non-parent to get custody. Access can also be given to other family members and, occasionally, to non-family members who have a close relationship with the child.
How do you decide who gets custody and who gets access?
Agreement between parents
Parents may be able to agree about custody and access. If they are making a separation agreement, they can include the custody and access terms in that agreement. Alternatively, they can make an agreement dealing only with custody and access. The agreement should be in writing, and signed by both parents in front of a witness who should also sign it. It is best to have the agreement written by a lawyer. However, if the parents write it themselves, they should each have their own lawyer look it over before they sign.
It is possible for parents to have an informal or verbal understanding about custody and access, without making a written agreement. Although this is easier to do, it is safer to have a proper written agreement. Then, if the parents later disagree about what the arrangements are, they can refer to the written agreement. If one of the parents does not do what was agreed to, the other parent can enforce the agreement.
When parents do not agree on custody or access
When parents are having a difficult time agreeing on custody and access terms, they can meet with a mediator. A mediator can help them reach an agreement without going to court and having a judge decide. Mediators are trained to help parents talk about the problems that need to be solved and come up with solutions they can both accept. When an arrangement has been worked out it can be put into a written agreement. Because the parents sometimes have to pay for mediation, it is a good idea to include how that expense will be shared in the written agreement. After parents reach an agreement in mediation, they should show the written agreement to their lawyers before signing it.
Mediators do not act as lawyers or give legal advice. Successful mediation is simply a solution that the two parents agree to. It is not necessarily based on their legal rights. If possible, each parent should see a lawyer before going into mediation. Then they will both know their legal position while they are working out an agreement.
You do not have to agree to go to mediation. Sometimes it can be helpful, but not always. For example, if a parent has been abused or feels intimidated by the other parent, they could be at a disadvantage in mediation. It would be better for that parent to hire a lawyer.
Even if you have started mediation, you can end it at any time if you do not feel comfortable with it. Be careful choosing a mediator. Mediation is not a regulated profession. Try to get a mediator who is recommended by someone you trust. Qualified mediation services are available at many court houses. You can get more information from the Ontario Association for Family Mediation by calling 1-800- 989-3025 or visiting their web site at www.oafm.on.ca.
When parents cannot agree on custody and access, they can go to court and have a judge decide. They can do this on their own, but it is best to get the help of a lawyer. The court process is complicated, and so are many of the things that judges must take into consideration when deciding who should have custody and what the access arrangements should be.
If the question of custody and access goes to court, the court must decide what custody arrangement would be in the best interests of the child. Usually this is done by listening to what the parents and their lawyers have to say. However, sometimes the judge wants independent information about the child’s needs and wishes. The judge can ask a lawyer from the Office of the Children’s Lawyer (OCL) to speak on behalf of the child. This lawyer will present the child’s views and preferences to the court if the child is old enough and knows what he or she wants. Otherwise the lawyer will try to figure out what is in the child’s best interests some other way. The OCL also has social workers. The judge can ask a social worker to give the court a report about the child and the child’s home and family.
Sometimes the judge may also order a custody assessment. This is done by an assessor who does not work for either parent and whose only concern is the best interests of the child. The assessor talks to the child alone, each parent alone, and the child with each parent. Then the assessor gives a report to the court. The judge will consider the report when they make the final decision.
How does the judge make a decision?
Both the Canadian Divorce Act and the Ontario Children’s Law Reform Act say that the judge must decide custody and access based only on what is in the child’s best interests. It is the child’s best interests, and not the interests of either parent, that must be the only consideration.
Some of the things taken into consideration in deciding what custody and access arrangement would be in the child’s best interests are:
The emotional ties between the child and each person seeking custody or access, other family members who livewith the child, and anybody else involved in caring for the child,
The child’s wishes (when the child is mature enough to know and express them),
The stability of the child’s present home environment and how long the child has been in that home,
The ability and willingness of each parent to take care of the physical, emotional, and other needs of the child,
The plans each parent has for the care and upbringing of the child,
The permanence and stability of the family each parent would provide,
The biological or adoptive relationship between the child and each person seeking custody or access (this is usually considered when someone other than a parent, for example, a grandparent or step-parent, is seeking custody or access),
The person who has done most of the parenting until now.
The courts also consider that, in most circumstances, it benefits a child to have a continuing relationship with both parents and to have as much contact with each parent as is consistent with the child’s best interests. Therefore, judges also look at the willingness of each parent to encourage the child’s contact with the other parent.
The past behaviour of a parent is not considered unless it makes them less able to act effectively as a parent. For example, a judge will not take into account which parent was to blame for the break-up of their relationship. However, if a person who wants custody or access has ever been violent or abusive towards their spouse, anyone in their household, a parent of the child, or any child, the judge must consider this behaviour.
Can the custody arrangement be changed?
When custody and access are arranged by an agreement between the parents, the arrangements can be changed without going to court if both parents agree to the changes in writing. They should each have their own lawyer write the changes to the agreement, or at least look them over before they sign. If custody and access are set out in a court order, or if both parents do not agree to a proposed change in an agreement, only the court can make the change.
Stability is usually considered to be in the child’s best interests. Therefore, unless both parents agree, a judge will change an existing order only if there has been some significant change in the child’s needs or circumstances, or in a parent’s ability to meet the child’s needs.
Courts are often asked to change existing custody arrangements when the parent with custody wants to move farther away from the parent with access. If the move would make it more difficult for the parent with access to see their child as often, the court will reopen the question of custody. The judge must be satisfied that the move would be in the best interests of the child, with enough advantages to make up for the reduced contact with the other parent.
Matrimonial and Property Division:
When a marriage ends, the equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment, or an equalization of net family property.
There are some possible exceptions to these rules, which are called excluded property, and may include gifts or inheritances received during the marriage from someone other than a spouse, provided that the gifts or inheritances were not used towards a matrimonial home.
These automatic property sharing provisions only apply to married spouses. If you are in a common law relationship, you are not entitled to an equalization payment, but may be entitled to a payment from your spouse to pay you back for a direct or indirect contribution to property that he or she owns. These claims are referred to as trust claims.
As the division or equalization of a separating couple’s property is governed by provincial legislation, there are different rules about the use and division of matrimonial homes across Canada. It is very important to know what the law is in your own province or territory.
In Ontario, for example, a matrimonial home is defined as “every property in which a person has an interest … that is, or, if the spouses have separated, was at the time of separation, ordinarily occupied by the person and his or her spouse as their family residence.”
A number of complexities arise from this deceptively simple definition, which has been interpreted many times since the definition was introduced into the Ontario Family Law Act in 1986.
First, “every property” means that separating spouses may have more than one matrimonial home. Cottages, ski chalets, Florida condominiums and sailboats with sleeping and eating quarters have all been found by the Courts to be matrimonial homes.
To be a matrimonial home, however, the property must be “ordinarily occupied” at the time of the parties’ separation. These words, too, have been given a broad definition. Even if a cottage is not winterized and a couple separates in January, the cottage may still be a matrimonial home. Constant or continual occupancy is not required.
Generally, as long as the property has been used from time to time as the family’s residence prior to separation, the court will most often find that a vacation property is a matrimonial home. It need not have been used by the spouses when they actually separated, so long as it was used by the parties or members of the family within a reasonable period of time prior to the separation.
Nor does the couple or the family have to use every part of a property. When a couple’s residence at separation is a farm, for example, the matrimonial home is only that part of the property that may reasonably be regarded as ”necessary for the use and enjoyment” of the residence.
Because homes in Ontario can include farm land, a few acres of trees, ponds, barns, granaries, guest houses, and buildings for machinery necessary to maintain the property, it is sometimes difficult to know how much of a property is actually the “matrimonial home.” Judges interpreting this provision have decided that entire farms can be matrimonial homes, if the farm was not a viable economic unit and the entire property was necessary for the enjoyment of a rural residence.
Possession of matrimonial home. The Divorce Act states:
19. (1) Both spouses have an equal right to possession of a matrimonial home.
(2) When only one of the spouses has an interest in a matrimonial home, the other spouse’s right of possession,
(a) is personal as against the first spouse; and
(b) ends when they cease to be spouses, unless a separation agreement or court order provides otherwise.
Therefore, a spouse who does not hold legal title to a matrimonial home may be able to occupy it or get a final or temporary order for exclusive possession pursuant to s. 24(1) of the Act.
Exclusive possession is a very severe order to make against a spouse since an order of this nature will essentially require the spouse to vacate the house and find other living arrangements. Due to the hardship this may impose the Act provides a set of criteria that the court must consider when making a determination regarding exclusive possession. S. 24(3) provides that:
Order for exclusive possession: criteria
(3) In determining whether to make an order for exclusive possession, the court shall consider,
(a) the best interests of the children affected;
(b) any existing orders under Part I (Family Property) and any existing support orders;
(c) the financial position of both spouses;
(d) any written agreement between the parties;
(e) the availability of other suitable and affordable accommodation; and
(f) any violence committed by a spouse against the other spouse or the children.
Best interests of child
(4) In determining the best interests of a child, the court shall consider,
(a) the possible disruptive effects on the child of a move to other accommodation; and
(b) the child’s views and preferences, if they can reasonably be ascertained.
Other final and/or temporary orders that a court may make with regards to possession are listed in s. 24(1):
Order for possession of matrimonial home
24. (1) Regardless of the ownership of a matrimonial home and its contents, and despite section 19 (spouse’s right of possession), the court may on application, by order,
(a) provide for the delivering up, safekeeping and preservation of the matrimonial home and its contents;
(b) direct that one spouse be given exclusive possession of the matrimonial home or part of it for the period that the court directs and release other property that is a matrimonial home from the application of this Part;
(c) direct a spouse to whom exclusive possession of the matrimonial home is given to make periodic payments to the other spouse;
(d) direct that the contents of the matrimonial home, or any part of them,
(i) remain in the home for the use of the spouse given possession, or
(ii) be removed from the home for the use of a spouse or child;
(e) order a spouse to pay for all or part of the repair and maintenance of the matrimonial home and of other liabilities arising in respect of it, or to make periodic payments to the other spouse for those purposes;
(f) authorize the disposition or encumbrance of a spouse’s interest in the matrimonial home, subject to the other spouse’s right of exclusive possession as ordered; and
(g) where a false statement is made under subsection 21 (3), direct,
(i) the person who made the false statement, or
(ii) a person who knew at the time he or she acquired an interest in the property that the statement was false and afterwards conveyed the interest, to substitute other real property for the matrimonial home, or direct the person to set aside money or security to stand in place of it, subject to any conditions that the court considers appropriate.
Common law cohabitation and property rights:
The rules about property division in the Family Law Act do not apply unless you are legally married. If you are in a common law relationship, the property you bring into the relationship, plus any increase in its value, usually continues to belong to you alone. If you and your spouse separate, there is no automatic right to divide it or share in its value.
Anything you buy for yourself with your own money during the relationship and own in your name usually belongs only to you. Things that you and your spouse buy together during the relationship belong to you both jointly. If you separate, the things you own jointly will be divided or their value shared.
It is a good idea to keep receipts, registrations, and other proof of ownership in case there is any disagreement later about who something belongs to.
If you have contributed financially or in some other way to your spouse's property, you might be able to claim a share. For example, you might have done unpaid work at home so your spouse could do paid work, or you might have worked in a family business. A court would look at whether your spouse was "unjustly enriched" at your expense.
If you are awarded a share of your common law spouse's property, the size of the share may be based on the size of your contribution or on how much your contribution increased the value of your spouse's property.
You can divide Canada Pension Plan credits that were earned while you were living with your partner if you lived together for at least one year.
In Ontario, the Family Law Act, RSO 1990, c F3 defines a “spouse” as someone who is legally married. When two legally married spouses separate and there is no reasonable prospect of reconciliation, the spouse who has less “net family property” is entitled to a payment from the other equal to one-half the difference between the net family properties. This is referred to as an “equalization payment”.
A spouse’s “net family property” is calculated by taking the value of all the property (except certain excluded property) the spouse owns on the date of separation, and deducting from this: (a) the spouse’s debts and other liabilities, and (b) the value of the net property the spouse owned on the date of marriage, other than the matrimonial home and debt relating to the matrimonial home. In a nutshell, both spouses calculate how much of their net worth they accumulated during the marriage, and a payment is made by one spouse to the other to equalize this amount.
Unless you are legally married, you are not entitled to an equalization of net family property in Ontario. There are situations where a common law partner can claim an interest in property legally owned by the other partner, but this is a much more complicated argument. Typically the spouse bringing the claim has to prove the other spouse would be “unjustly enriched” if his or her property is not shared. The Supreme Court of Canada in Vanesse v Seguin and Kerr v Baranow recently coined the term “joint family venture” which, if established, can be used to argue unjust enrichment. Whether or not a couple is engaged in a “joint family venture” would depend on many factors, such as whether they made mutual efforts as a couple, worked collaboratively on common goals, integrated their financial affairs, had intentions to share their property, and made decisions with the familial unit in mind.
If you are not legally married but you are cohabiting with someone in a conjugal relationship, it is important that you understand that the rights of common law partners are different than the rights of married spouses and it may be much more difficult for you to claim an interest in your partner’s property.
Under the section of the Family Law Act specifically dealing with spousal support, common law spouses are included in the definition of “spouse”. This means both married spouses and common law partners have the same rights and obligations under the Family Law Act when it comes to spousal support.
You are in a common law relationship according to the Family Law Act if you are not legally married but you have been cohabiting with your partner: (a) continuously for at least three years; or (b) in a relationship of some permanence, if you have a child together. To “cohabit” means to live together in a conjugal relationship, in other words, a romantic or marriage-like relationship.
In Ontario, marriage is more than just a piece of paper. Along with a marriage comes the right to participate in a special regime of property division if your marriage breaks down.
If you are living with someone in a conjugal relationship, you need to understand that the legal rights of common law partners are not the same as a married spouse. If your relationship breaks down, you may be entitled to spousal support but you will not be entitled to an equalization payment from your former common law partner, and it will be much more difficult for you to bring a claim relating to property division.