The Who, What, Where and When of Family Separation

ring on table

When parties separate, there can be countless details that need to be worked out, particularly after a lengthy relationship, and where there are children involved. Shared property also complicates matters (interestingly, family pets are still considered property for the purpose of the law, although there is support for the argument that a relational approach to pet ownership following separation is preferable).

Contentious issues that existed prior to the breakdown of a relationship can become magnified when the parties stop talking and no longer have the shared goal of working things out to sustain the relationship. The importance of recognizing the major sources of conflict between parties, and preparing for them with a comprehensive, fair, and future-focused separation agreement, cannot be overstated.

Separating families have the same “hot button” issues as everyone else. How they resolve their conflicts will have life-altering implications for the parties to a family law dispute, and their children. Taking a who, what, where and when approach to planning for the care of the children of a relationship going forward is key in drafting any separation agreement or participating in any mediation, negotiation or court proceeding.

WHO HAS CUSTODY AND WHO HAS ACCESS?

The concept of one parent retaining custody, and one parent having access, has been a part of family law as long as many adults will remember. In 2021, changes to the Children’s Law Reform Act did away with the use of the terms “custody” and “access”, with the goal of encouraging parents to work together in the best interests of their children rather than seeking to battle over parental rights. Now, instead, parties are encouraged to negotiate and find common ground, failing which courts are called upon to determine who has “decision-making responsibility” and who will exercise “parenting time” in relation to the parties’ children (Children’s Law Reform Act, s. 18(1)).

It is interesting to note that in 2016, Ontario made changes to the Children’s Law Reform Act to provide grandparents standing to argue for time with their grandchildren in family litigation. Subsections 21(2) and 21(3) of that statute list grandparents specifically, when stating that people other than the parents of a child can apply to the court for decision-making responsibility and/or contact with a child. This standing, notably, does not extend to foster parents, as they are subject to the non-interference regime of the Child and Family Services Act and cannot use section 21 of the Children’s Law Reform Act to seek time or decision-making responsibility for a child that has been in their care.

WHAT WILL WE DO? WHAT WILL WE LEARN?

Education outside of the public school system, and extracurricular activities, may result in costs upon which the parties will have to come to an agreement. A comprehensive review of the financial situation of both parties, as well as the way the family spent money prior to the relationship breakdown, will be key to establishing whether school, sports, arts and other educational programs need to be covered by the parties’ respective incomes (including support) or they are “special or extraordinary expenses” under section 7 of the Federal Child Support Guidelines. If they are determined to fall into this category, expenses for things like private school, tutoring, athletic training or team sports fees, music lessons or any number of other activities children may engage in will have to be shared. Courts usually order parties to pay their proportionate share by looking at their respective incomes. There are cases where special or extraordinary expenses are not subject to sharing, if the parties do not agree upon such expenditures ahead of time, or if the activities they will cover are not necessary for the best interests of the children.

WHERE WILL WE LIVE? WHERE CAN WE GO?

When a married or cohabiting couple with children separates, in the usual course, one parent relocates, and one remains in the home. Whether or not the children remain in the home, primarily, with time in a new location, or share their time equally between parents, is something the parties will have to consider based on what is in the best interests of the child. If they cannot decide, the “best interests” analysis is the overriding principle that a court will use to make this determination (and all determinations with respect to the parenting of minors). Justice Canada provides a useful guide to what factors parties should take into account in determining what order a court would make regarding where and how children will live after their parents separate. 

There are many circumstances that might require parties to relocate following a separation – whether it relates to work, further education, or returning to one’s former home. Whether a parent will be permitted by a court to relocate with a child is determined by the federal Divorce Act using, unsurprisingly, a best interests analysis (some relevant sections of the Divorce Act can be found here). Changes to the Children’s Law Reform Act in 2021 gave rise to a requirement of written notice by the parent seeking to relocate, as well as an acknowledgement that the reasons for a proposed move are relevant considerations in all cases, not just special ones. 

One key point to remember is that the person who wants to relocate with a child shoulders the burden of demonstrating that the relocation is in the best interests of the child. Whether or not a move makes it more complicated and expensive for the other parent to have time with the child is something that may give rise to a requirement that parties share yet another expense.

WHEN WILL WE SEE EACH OTHER?

One of the most important parts of any separation agreement and the post-separation relationship between co-parents is a clear, understandable schedule, and a way to communicate without conflict when last-minute changes are needed. Given the importance of stability to children’s development, long-term, parties will want to make sure their children have all the age-appropriate information they need about when they will see each parent following a separation, and do their best to stick with the schedule they make. 

Once children reach their teens, or even before, they may have strong opinions about how much time they want to spend with either parent. As they mature, children will have their wishes considered, and given increasing weight, in a court’s determination of the time and location of their contact with their parents. It may not be for them to decide, but when and where children want to interact with their parents is a matter that separating parents will want to keep in mind in making schedules and plans for the future.

CONTACT VAUGHAN FAMILY LAWYERS FOR ADVICE ON SEPARATIONS

When a family breaks down, there will be many questions, and important matters to consider. Let us assist you in “how” the future will look for you and your children. At what is likely one of the most stressful times of your life, Bortolussi Family Lawyers are ready to answer your questions. Our lawyers are knowledgeable and experienced in all aspects of family law. Call 416-987-3300 today to be matched with a legal professional who will help guide you in making decisions that make sense for your family’s future. 

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