Kain & Ball Family Law

By: Kain Family Law  09-12-2011
Keywords: Family Law, Child Support

Practice Areas

Family law is multi-dimensional and our experience and resources allow us to work with confidence in these areas:

The best interests of your children is the principle that governs which parent will be awarded custody, and what visitation arrangements are appropriate. While the ideal resolution of such issues involves both parents working together towards a comprehensive parenting plan, sometimes the ideal approach is just not possible. The parties require our professional assistance and the support of other trained professionals to negotiate a resolution. When resolution cannot be reached, it may be necessary to go to court to obtain an order for custody or access. Regardless of the circumstances, Kain & Ball is prepared to offer you the best legal advice and professional support to ensure fairness in child custody and access.

The basic amount of child support payable is set out in the tables of the Child Support Guidelines and is based on the income of the payor parent. The income of the recipient parent is not taken into account in setting basic child support payments. In addition to the basic amount, an additional amount may be payable for special or extraordinary expenses of the children.

Although it may seem straightforward to determine child support by simple application of the Guidelines, various issues may arise which can have serious consequences for both the payor and recipient.

Determination of a parent's income can be an issue, because income for child support purposes is not necessarily declared on a tax return. Bonuses, stock options, expense accounts, and benefits may, in some cases be included in the calculation of the payor's income. In the case of self-employed persons, the ability to personally benefit from expenses paid by the company also may be taken into account.

Adjustments may be made in the basic support payable where there are shared parenting arrangements and the child resides with a parent for more than 40% of the time.

Child support payments are tax free in the hands of the recipient and non deductible from income for the purposes of income tax by the payor.

We understand the child support Guidelines and have extensive experience in dealing with all of the issues outlined above. At Kain & Ball, we can represent you proficiently in this important area.

Married spouses, and in some cases common law spouses have the obligation to support each other. In the case of common law spouses, the parties have to be in a relationship for more than three years, or there has to be a child born of a stable relationship of less than three years.

Although over the last few years a method of calculation has been put forward in an effort to quantify spousal support similar to the way child support is quantified, the Spousal Support Advisory Guidelines are not the law.

The amount of spousal support to be paid, and how long it is to be paid, for both married and unmarried spouses, is discretionary, and is based on general principles – such as the needs of the recipient, and the ability to pay of the payor spouse – and takes into account various circumstances of the relationship which may impact a spouse's ability to generate an income from his or her own resources. Kain & Ball has negotiated many spousal support agreements over the years and we're ready to share our knowledge with you.

Upon separation, married spouses are entitled to an equalization of their net family property. This means that they are entitled not to the division of the property itself, but to the value of the property. The process involves the application of a specific calculation which is set out in detail in the Family Law Act .

This calculation results in one spouse (the one with the greater net family property) owing the other spouse a debt (equalization payment). It's important to note that an equalization payment may amount to more or less than half of the other spouse's assets.

When calculating net family property, the value of all types of ‘property' is included in the calculation: land, buildings, bank accounts, businesses, stock, stock options, pensions' accounts receivable etc.

Application of the principles governing equalization of net family property can be complex, and subject to many variables which can have a significant impact on the bottom line. When it comes to property division, it pays to consult a lawyer and Kain & Ball is the logical choice based on our experience.

Unmarried spouses do not have the same rights to equalization of net family property under the Family Law Act as married spouses.

The extent to which persons who are not married may assert a claim against each other with respect to property varies widely depending on the circumstances relating to their relationship and the property in question. At Kain & Ball, we understand the variables because we've negotiated property rights settlements for unmarried spouses for many years.

The matrimonial home is the property that the spouses ordinarily occupy as their family residence at the time of separation. There may be more than one matrimonial home for a family (for example a cottage or other vacation property in addition to the house). Regardless of the registered owner, either spouse may be entitled to possession of the home to the exclusion of the other spouse in certain circumstances.

In certain circumstances, if you are a registered owner of the matrimonial home, you may be entitled to force a sale of the property before all issues are finalized.

There is one ground for divorce in Canada: marriage breakdown. Marriage breakdown can be evidenced by the spouses' separation for at least one year, by cruelty, or by adultery. Most divorces are granted on the basis of the one year separation. The separation can begin to run as soon as the spouses no longer reside together. It's not necessary to have a separation agreement or “legal separation” for a year prior to commencing a divorce.

In some cases, separation can occur while the spouses remain under the same roof, but live separate and apart, provided that they (or at least one of them) has formed the clear intention not to live together. For basic or complex divorce proceedings, Kain & Ball has the experience you need.

Domestic contracts include Marriage Contracts, both before marriage (pre-nuptial agreements) and after marriage if circumstances arise which require a couple to define, expand or limit the rights and obligations afforded to them under family law legislation. In addition, for unmarried spouses, cohabitation agreements can address obligations for support and avoid potential property claims which may arise during a couple's common law relationship.

Negotiated agreements are the best way to resolve issues. Separation Agreements can be in settlement of all claims arising out of the separation of parties. In negotiating settlement, in all cases, full financial disclosure is required from both parties. Where there are issues of support and property division, the requirement for exchange of information can be extensive, depending on the circumstances of the parties and the complexity of the financial issues. We understand this and can help you to achieve the best separation agreement possible for your situation.

Depending on the nature of the issues to be resolved, mediation may be helpful in resolving certain disputes. Our experience shows it can be especially useful in solving issues relating to children. At Kain & Ball we have lawyers who have formal training and extensive experience in both acting as mediators, as well as representing clients in mediations.

In cases where negotiations prove unsuccessful, and mediation or other forms of alternate dispute resolution are not appropriate, you may have to look to the courts for assistance. Kain & Ball is ready to help with seasoned trial lawyers. Subject to your circumstances, it may be necessary to commence legal proceedings against the other party to assert claims for and/or obtain immediate relief on an interim (temporary) basis concerning issues of: custody/ access, child support, spousal support, possession of the matrimonial home, equalization, dissipation of property, restraining orders etc.

Most cases begin with negotiation. If no agreement can be reached, cases usually proceed as follows:

    •  An Application is issued
    •  Case Conference,
    •  Interim Proceedings: Motions for Interim Support, Interim Custody, Interim Exclusive Possession of the matrimonial home etc.
    •  Questioning on financial matters and other issues
    •  Settlement Conference
    •  Pre-Trial Conference
    •  Trial Management Conference
    •  Trial

Even if a legal proceeding is commenced, at all steps throughout the process, we will make all reasonable efforts on your behalf to try to reach a fair settlement and minimize the costs and uncertainty of going to court.

  • If you are served with a court process, then Kain & Ball will take all the necessary steps to effectively defend you and assert your claims in the process

Keywords: Child Support, Family Law