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Family Law and Divorce

Legal conflicts involving family relationships and children can be complex and emotionally charged. That’s why you need representation from a lawyer you can trust. MacQuarrie Whyte will handle your case with the utmost compassion and professionalism while working to protect your best interests.


We offer experienced, professional assistance to help you with the matters of separation and divorce, spousal support, and child support in Ottawa. We provide a free initial consultation during which time we can often complete a very general review of your circumstances and provide you with an indication of your options and the significance of each choice.



The Interview Process

The process of navigating through the legal system can be overwhelming and frustrating.

We offer a free, over the phone, initial consultation during which time we can often complete a very general review of your circumstances and provide you with an indication of your options and the significance of each choice.

In reviewing your particular circumstances, our first consideration will be to identify exactly what your concerns are. Once we have identified the difficulties, we will then explain to you the significance of the matter in terms of the law and how it affects you. We then lay out for you the most effective approach to the resolution you seek.

Once retained, while representing your interests we believe that it is important that every reasonable effort is made in order to resolve matters in an effective manner, protecting your interests and seeking to resolve matters by agreement if that is possible.

We make an effort to keep you involved in the process at every step, so that you can see how your matter is progressing, and you can participate as much as you wish.
 
Many times, with our help, these matters can be resolved out of court, saving you time and money. Contact MacQuarrie Whyte today to schedule a consultation with one of our lawyers.


Contracts

A carefully written Contract or Agreement can save you time, money, and stress, associated with a separation. We will ensure that you are well informed of your rights and fully understand the contents of your Contract / Agreement.

Marriage Contracts
Married couples will choose to draft a Marriage Contract with the help of their lawyers as an effective way for making decisions in the event of a separation.

Cohabitation Agreements
Couples who live together but are not married and wish to make plans regarding their financial relationship may choose to draft a Cohabitation Agreement in the event of a separation.

Parenting Agreements
Couples can negotiate a written Parenting Plan which is a comprehensive written arrangement the parties have made for the care of their child, and in which various responsibilities can be assigned to one parent, the other, or both.

Separation Agreements
Issues that arise from the breakdown of a relationship can be resolved through negotiating a Separation Agreement. The support terms of the agreement can be enforced by The Family Responsibility Office.

Independent Legal Advice
If a contract or Agreement is prepared by your partner’s lawyer it is important that you seek legal advice before you sign anything. We will guide you through review it and provide legal advice.


Married Vs. Common Law

Both married persons, and persons who live together in a common law relationship, may have rights to seek support from the other.

Generally speaking, only married persons have a right to share their property at the end of their relationship.

Married persons do not need to divorce in order to address the issues of support, custody, access and their property, but they do need a divorce in order to re-marry. Parties who live together but who are not married to each other will not need a divorce to end their relationship.


Divorce

Divorce in Canada is a federal responsibility and the basic law is found in the Divorce Act. Although there are several possible grounds for obtaining a divorce set out in the Act, most people rely on the grounds of having been separated from their spouse for a period of at least 12 months prior to the date the divorce is to be granted.

The Divorce Act also contains provisions dealing with child custody and access, child support, spousal support, as well as making changes or variations to existing terms of a divorce judgment or order.
 
The Province of Ontario has jurisdiction over the property issues associated with marriage breakdown, and the basic law is found in the Family Law Act.

A person could bring a court application for child custody and access, child support, and spousal support without bringing a divorce action.


Child Custody & Access

The law requires that child custody and child access matters be determined upon what is considered to be in the best interests of the child. Generally the court is concerned with the established ties the child has with the person that is claiming custody or access, the existing arrangements, the child's wishes, and the plans for the child.

To help decide custody and access cases, the court will sometimes appoint a lawyer to represent the child's views. In other instances, a court may order an assessment of the child and the parties by special trained professionals who then provide a report to the parties and the court. The report is not binding on the court although it is often very persuasive.

Some couples can negotiate a written Parenting Plan which is a comprehensive written arrangement the parties have made for the care of their child, and in which various responsibilities can be assigned to one parent, the other, or both.

If the parties have joint custody of the child, both of them together will make the decisions relating to the child's health, education and life in general. If one party has sole custody and the other party has access, the custodial parent has the sole right to make the important decisions concerning the child. The access parent still has a right to be informed of the decisions. Whether the parties have joint or sole custody arrangement, the child may reside primarily with the custodial parent, or the child's residence could be also be shared.
 
Perhaps the most typical form of access for a non-custodial parent consists of a visit every second weekend from Friday evening to Sunday evening, as well as a share of holidays and other special occasions.


Child Support

The Government of Canada has produced The Child Support Guidelines, a series of tables and rules for determining the amount of child support to be paid to the parent having care of the child. The guidelines have also been adopted by the Government of Ontario, and they often make the determination of the basic level of child support very easy to calculate. The guidelines also recognize that it is intended that certain special expenses for a child such as childcare, are to be shared between the parties in proportion to their incomes, in addition to the amount calculated from the tables.
 
Generally speaking, child support continues until a child is at least 18 years of age and is no longer in need of financial support. Child support will also carry on if the child continues to be in school, if he or she has attained the age of 23 years, or has attained a first post-secondary degree or diploma.


Spousal Support

The area of spousal support is a very complex one. Unlike child support, there are no hard rules for determining spousal support. Some general spousal support guidelines have been formulated by the Government of Canada, which can assist in determining the appropriate amount of spousal support. In addition, some reported court decisions have attempted to set out general principles for the determination of spousal support, including the entitlement, amount, and duration of any spousal support obligation. There are many cases, however, and it can be difficult to draw clear rules from a review of these decisions.


Division of Property

Generally, under the laws of the Province of Ontario, when parties separate they have a right to an equal share of the wealth they each acquired during the marriage. This process is called the equalization of net family property.

The determination of the net family properties to be equalized is a process that requires the careful determination of values for the assets and debts of each party at the date of the marriage of the parties, and at the date of separation.

In some unusual situations, the court may make an adjustment to the final property calculation to take into account extraordinary circumstances that existed during the marriage.


Variation of Court Orders or Agreements

Matters of child custody, access, and child support can be varied or changed when there has been a material change in the circumstances of the parties or the child. Not every change is a material change, but if it is material, (meaning significant) then a change can be made, based upon the new circumstances as they exist. A court can always vary a court order or agreement regarding child matters if there has been a material change, even if the parties intended that there be no changes permitted.

Spousal support orders or agreements may also be changed if there has been a material change of circumstances and the parties clearly intended that changes be possible. Occasionally a court will even vary an agreement or order where the parties clearly stated that there was to be no change, if the court believes that it in the circumstances it would be very unfair not to change it.


Will I have to go to court?

There are often options other than the court for the resolution of conflict. Some matters can be negotiated by lawyers to a successful conclusion without the use of court at all. Sometimes a meeting of the parties with their lawyers can result in an agreement which everyone finds is fair and just. Other matters can be referred to a mediator or arbitrator for the resolution of specific issues in a timely manner. Even after a court action has been commenced, often there are opportunities for the parties to make use of alternative dispute resolution so as to reduce the level of conflict and move to a resolution in which the parties have participated in as well.


Relative Adoption

There are four types of adoption in Ontario.

Step-parent Adoption (including Relative Adoption): when a child is adopted by a step-parent or relative of close relation, such as a grandparent, aunt, uncle, great-aunt or great-uncle of the child. An adoption order will only be made with the written consent of each parent, the child, if seven years or older, and the spouse of the person applying. The law allows a person who has previously given consent to withdraw it within 21 days, a period that may be extended if the court finds it to be in the child’s best interests.

Our firm can assist you with the Court process if you consider adopting a child who is related to you.  

We will not handle other types of adoptions but we will gladly refer you to other professionals.

Private Adoption: when birth parents or expectant parents are connected with an adoptive family through the help of an adoption professional / agency.

Public Adoption
: when children living in foster care as a Crown Ward are connected with adoptive families through the help of the Children’s Aid Society.

International Adoption
: when a family from the province of Ontario adopts a child from another country.


Mediation

For many couples, the best reason for choosing mediation will be the cost. Mediation is focused on both parties working together, and doing so can dramatically decrease your legal fees.

James D. S. Whyte is a trained mediator that can help couples reach an agreement on support payments, the division of property, custody of and access to the children, any other family-related issues.