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Independent Contractor vs. Employee
For many years, the distinction between an employee and independent contractor has been the centre of debate in the employment law field. The distinction comes from the similarities that both statuses have, yet employers have often chosen the standing that best suits them, especially when a business uses a blend of both types of workers.
Family Law Litigation Process - Part 1
Family Status Discrimination
Under the Ontario Human Rights Code, childcare and family obligations are a covered ground for discrimination. This ground is called family status and is defined as being in a parent-child relationship. Within the workplace, this means that a working arrangement or policy may have an unintended effect of discrimination on the employee’s childcare obligations.
Social Media Policies in the Workplace
Over the years, social media has become prominent in almost everyone’s lives. With the popularity of smart phones and access to internet, posting photos and writing status updates online have become second nature. In an employment setting, these social media platforms are often used to reach more customers and drive business. However, the distinction between professional and personal use can become blurry when an employee’s personal social media account does not reflect the employer’s values.
Calculating Equalization
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
If a married couple decides to separate or divorce, both parties are entitled to what is called the equalization of net family property. This means that each spouse is automatically entitled to an equal share of the profits of that marriage. Barring a domestic contract between the spouses, either spouse can apply for equalization of family property under the Ontario Family Law Act (FLA).
Upon the breakdown of the marriage, in order to compensate the spouses fairly for the equal contribution during the marriage, the FLA states that the value of all assets acquired during the marriage will be divided equally. This will require one of the spouses to make an equalization payment to the other, in order to equalize the value of each spouse’s net family property. The purpose of equalization is to recognize that child care, household management and financial input are the joint responsibilities of the spouses and inherent in the marital relationship there is equal contribution.1
The first step in calculating equalization is to determine the valuation date. This date is typically the date of separation and is a fixed date, meaning there is very little discretion for the court to adjust the date. According to section 4(1) of the FLA, the valuation date is the earliest of; date of separation with no prospect of reconciliation, date of divorce granted, date of nullity, date of application for equalization due to improvidence, or day before death. In most cases, the valuation date is the date of separation.
The second step is to determine the net worth at valuation date. Once the valuation date is established, the parties must list all assets they have that would be considered property for purposes of the FLA, including any debts each party has. Some examples that would be considered property include but are not limited to life insurance, severance pay entitlements, partnership interests, future income from a trust and leasehold interests. It is important to note that professional degrees, licenses, and expectation of inheritance are not considered property for the purpose of equalization.
The third step is to determine the net worth at the date of marriage. Any assets owned before marriage are considered a deduction when calculating equalization, excluding the matrimonial home. A rule of thumb suggests that the more money you have coming into the marriage, the higher deductions you will have. The current value of the assets is irrelevant, as deductions are calculated in ‘date of marriage’ dollars.
The forth step is to calculate any exclusions in determining equalization. Any assets acquired during the marriage would be considered an exclusion. This may include property, other than a matrimonial home, that was acquired by gift or inheritance from a third party after the date of marriage. It is important for the spouse to keep their inheritance separate and have the testator (individual leaving the inheritance) specify that any income generated from the inheritance is to be excluded in such circumstances. In addition, a marriage contract entered into by the parties can state that property may be excluded, along with rights to proceeds from life insurance.
The fifth step is to determine the difference between assets on the valuation date and assets on the date of marriage for each party, then divide that number by two. This calculation gives you the net family property, and requires the party with the higher number to pay 50% of the difference to the party with the lower net family property number. The presumption at the end of the calculation is that there will be an equal division of value. However, there are cases where an unequal division of net family property will occur, meaning that there will be a variation from the 50/50 split. For example, if spouse A has calculated a net family property of $100,000, and spouse B has a net family property of $300,000, spouse B will pay $100,000 to spouse A, being 300k-100k=200k/2=100k. The court will only award an unequal payment under section 5(6) of the Family Law Act where the court is of the opinion that an equal split would be unconscionable, having regard to different factors.2 For example, if one spouse was found to be to be recklessly depleting their net family property, the court would intervene and may order an unequal payment in favour of the innocent spouse.
When calculating equalization for the purpose of net family property, it is important to pay attention to specific dates, including the valuation date, the date of marriage, and when items were received, inherited or purchased. It is also important to note section 7(3) of the FLA which sets out limitation periods for when an application can be brought forth by a spouse.3
Upon the breakdown of the marriage, in order to compensate the spouses fairly for the equal contribution during the marriage, the FLA states that the value of all assets acquired during the marriage will be divided equally. This will require one of the spouses to make an equalization payment to the other, in order to equalize the value of each spouse’s net family property. The purpose of equalization is to recognize that child care, household management and financial input are the joint responsibilities of the spouses and inherent in the marital relationship there is equal contribution.1
The first step in calculating equalization is to determine the valuation date. This date is typically the date of separation and is a fixed date, meaning there is very little discretion for the court to adjust the date. According to section 4(1) of the FLA, the valuation date is the earliest of; date of separation with no prospect of reconciliation, date of divorce granted, date of nullity, date of application for equalization due to improvidence, or day before death. In most cases, the valuation date is the date of separation.
The second step is to determine the net worth at valuation date. Once the valuation date is established, the parties must list all assets they have that would be considered property for purposes of the FLA, including any debts each party has. Some examples that would be considered property include but are not limited to life insurance, severance pay entitlements, partnership interests, future income from a trust and leasehold interests. It is important to note that professional degrees, licenses, and expectation of inheritance are not considered property for the purpose of equalization.
The third step is to determine the net worth at the date of marriage. Any assets owned before marriage are considered a deduction when calculating equalization, excluding the matrimonial home. A rule of thumb suggests that the more money you have coming into the marriage, the higher deductions you will have. The current value of the assets is irrelevant, as deductions are calculated in ‘date of marriage’ dollars.
The forth step is to calculate any exclusions in determining equalization. Any assets acquired during the marriage would be considered an exclusion. This may include property, other than a matrimonial home, that was acquired by gift or inheritance from a third party after the date of marriage. It is important for the spouse to keep their inheritance separate and have the testator (individual leaving the inheritance) specify that any income generated from the inheritance is to be excluded in such circumstances. In addition, a marriage contract entered into by the parties can state that property may be excluded, along with rights to proceeds from life insurance.
The fifth step is to determine the difference between assets on the valuation date and assets on the date of marriage for each party, then divide that number by two. This calculation gives you the net family property, and requires the party with the higher number to pay 50% of the difference to the party with the lower net family property number. The presumption at the end of the calculation is that there will be an equal division of value. However, there are cases where an unequal division of net family property will occur, meaning that there will be a variation from the 50/50 split. For example, if spouse A has calculated a net family property of $100,000, and spouse B has a net family property of $300,000, spouse B will pay $100,000 to spouse A, being 300k-100k=200k/2=100k. The court will only award an unequal payment under section 5(6) of the Family Law Act where the court is of the opinion that an equal split would be unconscionable, having regard to different factors.2 For example, if one spouse was found to be to be recklessly depleting their net family property, the court would intervene and may order an unequal payment in favour of the innocent spouse.
When calculating equalization for the purpose of net family property, it is important to pay attention to specific dates, including the valuation date, the date of marriage, and when items were received, inherited or purchased. It is also important to note section 7(3) of the FLA which sets out limitation periods for when an application can be brought forth by a spouse.3
Articles written by Stacey Staios:
Testamentary Capacity Aggravated and Punitive Damages Leaves of Absence in Ontario Co-Parenting In The Age of a Pandemic Corollary Relief Disability Accommodation in the Workplace
Estate Planning: A How To Guide Should You Consider A Cohabitation Agreement? What Is Wrongful Dismissal?
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Family Law Act, s.5(7)2 Family Law Act, s.5(6)
3 Family Law Act, s.7(3)
What Is Frustration Of Contract?
Aggravated and Punitive Damages
In many wrongful dismissal cases, employees may be entitled to what is known as aggravated and punitive damages. Aggravated damages are compensatory in nature and often require the employer to have engaged in bad faith during the employee’s dismissal, and where the employer’s bad faith results in actual harm to the former employee.
Leaves of Absence in Ontario
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In Ontario, employees are afforded certain rights under the Employment Standards Act (ESA), including leaves of absence. A leave of absence is an employee’s right to temporarily stop work and return to their job-protected position within the workplace. Although there are many different types of absences, for the purpose of this article, the most common absences will be discussed, along with an employee’s rights while on such leaves.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
One of the most common leaves includes pregnancy and parental leave. Pregnant employees have the right to take a pregnancy leave of up to 17 weeks, or longer of unpaid time off work. A pregnant employee is entitled to this leave regardless if she is a full-time, part-time, permanent or contract employee, provided that she is employed by an employer that is covered under the ESA, and she started her employment at least 13 weeks before the date her baby is expected to be born.1
Parental leave, on the other hand, is offered to both new parents. Parental leave is available for parents who qualify, offering up to 61 to 63 weeks of unpaid time off work. Similar to pregnancy leave, a new parent is entitled to parental leave regardless if they are full-time, part-time, permanent or contract employees, provided they are employed by an employer who is covered by the ESA and were employed for at least 13 weeks before commencing the parental leave.2 In this event, a ‘parent’ includes a birth parent, an adoptive parent, or a person who is in a relationship of some permanence with a parent of the child and who plans on treating the child as his or her own, including same-sex couples.3
For both pregnancy and parental leave, an employee who takes such leave is entitled to return to the same job the employee had before the leave began, or return to a comparable job if the employee’s old position no longer exists. In addition, employers cannot punish an employee in any way because the employee took a pregnancy or parental leave, plans to take a leave, is eligible to take a leave or will become eligible to take a leave.4 Employers have a responsibility during pregnancy and parental leave to maintain the employment contracts, such as continuing to contribute to benefits.
Sick leave is another type of leave of absence offered to employees. Most employees have the right to take up to three days of unpaid job-protected time off due to personal illness, injury or medical emergency. However, an employment contract may provide a greater right or benefit than the sick leave standards under the ESA. Generally, an employee must inform their employer before starting the leave, and if this is not possible, the employee is required to inform their employer as soon as possible after starting the leave. Further, an employer may require an employee to provide a medical note from a health care professional asking for the duration or expected duration of the absence, the date the employee was seen by the health care practitioner and whether the patient was examined in person by the health care professional issuing the note. Employees who take a sick leave are entitled to the same rights as employees who take pregnancy or parental leave, in such that an employer cannot threaten, fire or penalize in any way an employee who takes or plans to take a sick leave.5
Another leave of absence is the family caregiver leave. Similar to the leaves mentioned above, this is an unpaid, job-protected leave and can last up to eight weeks per calendar year per specified family member.6 The care or support for a family member may include but is not limited to, providing psychological or emotional support, arranging for care by a third-party provider or directly providing for the family member.7
Under the Employment Standards Act, there are many different types of leaves that employees are entitled to take, which are job-protected. This means that employees are permitted to take time off work for personal or health related reasons and return to their same position or one that is comparable, without being penalized by their employer.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Government of Ontario, ‘Pregnancy and Parental Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act/pregnancy-and-parental-leave#:~:text=Pregnant%20employees%20have%20the%20right,of%20unpaid%20time%20off%20work.&text=Birth%20mothers%20who%20took%20pregnancy,to%2063%20weeks'%20parental%20leave.2 Ibid.
3 Ibid.
4 Ibid.
5 Government of Ontario, ‘Sick Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/sick-leave
6 Government of Ontario, ‘Family Caregiver Leave’ https://www.ontario.ca/document/your-guide-employment-standards-act-0/family-caregiver-leave
7 Ibid.
Separation Agreements and the Transfer of Matrimonial Property
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
When a couple decides to separate, one of the primary concerns involve what is to come of the matrimonial home. Several options exist at this point. For one, the parties may elect to have the matrimonial home sold, and to then have the sale proceeds divided according to agreed upon allotments outlined in a separation agreement. Alternatively, one party may elect to purchase the other party’s interest in the property. This process involves transferring the title of the home solely into the name of the party purchasing the interest of the other. Whichever route a separating couple elect to take, it will be outlined in detail in a binding separation agreement.
A separation agreement is a legal document that works to outline the terms of a separation between the parties. More specifically, the agreement will typically outline the couple’s shared assets and debts, and describe how they are to be divided between the parties upon separation. In this context, the separation agreement should also outline what the parties have agreed will happen to the material property. Many of these agreements will provide for a buyout option, where party A will buy party B out of their interest in the matrimonial property. Having a binding separation agreement in place is the first step of this process.
Once a separation agreement has been executed by the parties, both should then look to retain their own real estate lawyers to deal with transferring the title of the matrimonial property. One of the main reasons that each party is required to retain their own independent real estate lawyer is so that each party receives independent legal advice pursuant to their own unique interest in the title transfer. Each party’s lawyer will work to explain to their client the legal consequences of executing the transfer of title. The interest of each respective party depends on which side of the transfer they find themselves on.
The party being bought out of the property will work closely with their lawyer to ensure they receive prompt payment of the buyout amount outlined in the agreement proper to signing over their interest in the matrimonial property.
Conversely, the party who will have the property transferred solely into their name will work with their lawyer to ensure that they properly provide the buyout amount in exchange for sole title to the property, along with other accompanying documentation. This additional documentation will state that the other party has indeed received independent legal advice and fully understands the consequences of executing the agreement at hand.
Regardless of which side of this process you find yourself, it is important to retain the services of an experienced real estate lawyer. Your lawyer will ensure that the agreement is followed meticulously, and advise you of the various ramifications resulting from the execution of the agreement.
Articles written by Warren Gilmore:
Estate Planning for Reconstructed Families
Sale of Canadian Property by a Non-Resident
The Prudent Real Estate Investors Checklist Alternative Approaches To Purchasing A Recreational Property Power of Attorney General Overview Power of Attorney General Overview - Continued Non-Resident Speculation Tax
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Estate Planning for Reconstructed Families
Author: Warren Gilmore - Law Student
Edited By: Ryan Carson
The dynamic of the modern Canadian family continues to change. An increasing number of Canadians find themselves entering into second marriages or common law relationships. In many instances, these subsequent relationships involve individuals coming together with children from prior marriages, or having children within these new relationships. These blended family dynamics tend to complicate matters as far as estate planning goes, making it essential to have a properly constructed plan in place.
For starters, upon entering into a subsequent marriage any preexisting Will you may already have in place will become null and void. Unless of course this Will specifically accounts for such an event. Further, in the instance of divorce, your ex-spouse can no longer legally be deemed a beneficiary or an executor of your Will. However, the remaining provisions of the Will, unrelated to your spouse and the divorce will remain legally valid and intact. Further, if you have any subsequent domestic agreements currently in place, such as a cohabitation agreement, a separation agreement, or a marriage contract, any provisions included in these agreements will trump any conflicting aspects of a previously executed Will, should the documents ever conflict.
When constructing a new estate plan with a blended family it is important to take into consideration the concerns outlined above. Additionally, putting together an effective estate plan for this family dynamic has its own set of unique considerations. First, each partner in the new relationship should take time to consider what individuals would be considered their own individual financial dependents. This would include any children from previous relationships that either partner plans to bring into this newly blended family. Second, it is important to consider the nature of any property you may currently own. Specifically, how is title to property held, jointly, solely? This will determine how any future interests to said properties will be outlined in the Will. Third, will it be your intention to have your Will and its directive be in sync with that of your new partner? Or do you want it to be unique to your own individual wishes? This is something that is often over looked by individuals in this situation. If you wish for your Will to depart from the wishes of your partner it becomes necessary that each of you retain your own independent lawyer. This will ensure that each of your intentions are accurately and legally reflected in your own individual estate plan.
Whichever route you elect to take, it is always prudent to retain the services of an experienced estate lawyer. Their expertise will allow them to make sure that your wishes are documented in a manner that is accurate, and more importantly enforceable. Having this type of an experienced professional in your corner becomes even more critical when dealing with the complexities involved in a reconstructed family.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
Co-Parenting In The Age Of A Pandemic
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
From the advent of the novel Coronavirus, now identified as Covid-19, many changes have been implemented. These include, but are not limited to, cancelled sporting events, transitions to online education, and the closure of jurisdictional borders. In all of this, some things have not changed, including navigating co-parenting for separated and divorced spouses. Although there has been a suspension of regular Superior Court of Justice operations, urgent family law matters are still being dealt with at this time.
Many questions arise regarding the safety of children, especially if one parent has an increased risk of exposure due to the nature of their employment. In the recent case of Ribeiro v Wright, the Ontario Superior Court provided some guiding principles on these issues. It was established that both parents must work together to show flexibility, creativity, and common sense during these times to ensure the physical and emotional well-being of the child.1
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Further, the court in this case recognized that a blanket policy that children should not leave their primary residence is inconsistent with the best interest of the child analysis.2 Parents with existing access orders and schedules are encouraged to find ways to continue such arrangements in a safe manner. Parents were also informed that there will be zero tolerance for those who do not follow the specified pandemic protocols and recklessly expose a child or member of the child’s household to any Covid-19 risk.3
Spousal and child support payment are among some of the issues that have surfaced as a result of the pandemic. According to the Federal Government of Canada, over 18 million people have applied for the Canada Emergency Relief Benefit, a monthly payment to help those who have been laid off or lost their source of income due to Covid-19.4
Under normal conditions, if the payor parent has a change in financial circumstances, they can apply to the court to have them approve the support payment amount. However, as courts are temporarily suspended, a request for a temporary change in support payments may not meet the court’s definition of an urgent matter. Similarly, the courts in this situation have stated that support payments should be maintained in full, and arrangements between both parents should be made in the event the payor parent can longer do so.
This pandemic has brought family law issues into uncharted territories. The courts are faced with making decisions without any precedents to reference, and are endeavouring to ensure the safety and maintenance of the children until normal operations resume. Therefore, it is important for separated parents to work together during these times and come to mutual agreement that is in the best interest of the children.
Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
References
1 Ribeiro v Wright (2020) ONSC 18292 Ibid
3 Ibid
4 Government of Canada CERB Statistics; https://www.canada.ca/en/services/benefits/ei/claims-report.html
An Investment Conversation with Mark Baltazar from Peak Multifamily Investments
Ryan Carson and Mark Baltazar from Peak Multifamily Investments had a productive conversation about multifamily and commercial real estate investments that will be very informative not only for everyone, but especially first time investors!
Some topics included are:
Advice for first time investors
The ideal property type to invest in according to Mark
How has investing in multi residential changed since COVID-19?
With working from home now being more common, how will that affect the real estate market?
Ryan Carson and Mark Baltazar from Peak Multifamily Investments, had a productive conversation about multifamily and commercial real estate investments that ...
Have a question for Mark or want to know more about Peak Multifamily Investments?
Mark Baltazar Peak Multifamily Investments
Instagram: @mark_baltazar Instagram: @peakmultifamily
Facebook: Mark Baltazar Facebook: Apartment Building Investors Network
Corollary Relief
Author: Stacey Staios - Articling Student
Edited By: Ryan Carson
In addition to the equalization payments and division of property, divorcing couples may also bring a claim for corollary relief, which seeks orders from the court relating to financial support, custody and access. For married couples getting a divorce, one of the parties may initiate their spousal support by way of the Divorce Act. However, there must have been a divorce granted in order to seek corollary relief. For unmarried cohabitants, they may initiate their spousal support action by way of Part 3 of the Family Law Act.
Three questions must be addressed when considering spousal support. The first is entitlement, the second is quantum (how much), and the third is duration (how long).
For unmarried couples, entitlement starts with the definition of ‘spouse’ found in section 29 of the Family Law Act and includes either of two persons who are not married to each other and have cohabited continuously for a period of not less than three years, or are in a relationship of some permanence if they have a child together.1 The definition of cohabitation can be broken down into sections, namely, time requirements, aspects of cohabitation and intention, which all contribute to the meaning of cohabitation. The purpose of spousal support for unmarried cohabitants is set out in section 33(8) of the Family Law Act and includes;
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
(a) To recognize the spouse’s contribution to the relationship and the economic consequences of the relationship for the spouse,
(b) To share the economic burden of child support equally,
(c) To assist the spouse in becoming financially independent, and
(d) To relieve financial hardship.2
For married couples seeking a divorce, section 15.2(4) of the Divorce Act sets out the factors taken into consideration when establishing entitlement to spousal support. Specifically, the length of the marriage, the functions performed by each spouse during cohabitation, and any order, agreement or arrangement relating to support of either spouse.3
Once entitlement is established, the next step is to determine quantum and duration. According to the Spousal Support Advisory Guidelines (SSAG) the length of marriage actually refers to the length of cohabitation, which includes periods of premarital cohabitation and ends with separation. Included in the Spousal Support Advisory Guidelines are several formulas that can be used to determine how much spousal support you may be entitled to, depending on whether you have children or not.
The ‘without child’ support formula is used where there are no dependant children. This amount usually yields monetary figures that are lower and shorter, which align with non-compensatory support, which are claims that generally arise from shorter marriages. This formula is based on the gross income difference between the spouses and the length of marriage. In terms of duration, this is simply calculated based upon the length of cohabitation. The general rule suggests that the payee spouse will get from ½ to 1 year for each year that they cohabited with the payor spouse. However, any relationship longer than 20 years suggests that the duration of the spousal support is indefinite, meaning that the range of duration is not specified.
In contrast, ‘with child’ formulas tend to result in higher amounts for a longer period of time, mirroring the compensatory model, which generally arise from longer marriages. As for the range of support the payee is entitled to, this may be based on individual factors in the marriage, such as the length of the relationship, the circumstances regarding the children and how dependant the spouse was. There are two tests to determine the duration of support using the ‘with child’ formula, the Length of Marriage Test, generally used for longer marriages and the Age of Children Test, generally used for shorter marriages. The test to be used will be the option that is most advantageous to the payee.
Support orders are not always indefinite. There are circumstances that may allow for a variation of a spousal support order. For example, spousal support orders can be modified if one party re-marries, the payee or payor gets a new job, or the children are no longer dependant. Such variation orders may apply for both quantum and duration and may be brought by application when there has been a change in circumstances with either party. In comparison, an application may be brought for a review order, which are temporary and are intended to set spousal support at a certain amount and re-visit the quantum and duration at a later date. A review order may be used if you know that dependent children will be finishing high school on a certain date or if you know that the payee spouse will be attending school that will give them access to a good job. The difference between a review order and a variation order is that under the review order, there does not have to be a change in circumstances in order to apply for review.
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Disclaimer
The content on this web site is provided for general information purposes only and does not constitute legal or other professional advice or an opinion of any kind. Users of this web site are advised to seek specific legal advice by contacting members of Carson Law, Carson IP, or their own legal counsel regarding any specific legal issues. Carson Law does not warrant or guarantee the quality, accuracy or completeness of any information on this web site. The articles published on this web site are current as of their original date of publication, but should not be relied upon as accurate, timely or fit for any particular purpose.
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