Need To Know When Separating From Your Spouse


If you have recently separated from your spouse you may be thinking “how can I secure full custody of the kids?” There is no such thing as “full custody”. What you likely mean is “sole custody”. Sole custody generally means that the children will live primarily with you and that you will make all major decisions with respect to your children, including important decisions affecting their education, healthcare, religion, and other matters concerning your children’s well-being.

To obtain an order for sole custody you must prove to the court that you were always the children’s primary caregiver, that your husband had little or no involvement in the raising and care of your children, and that you and your husband are not capable, due to animosity, domestic abuse, etc., to make important decisions with respect to the children together.

Some have assumed that the mother will automatically get custody of the children. There is no presumption that the mother will be granted sole custody of the children. Who gets custody and what type of custody is ordered depends on who was the children’s primary caregiver during your marriage, where the children have been living since you separated, your involvement in the children’s lives and upbringing and how well you and your wife get along.

If you were heavily involved in your children’s lives and you and your wife are separating on reasonably good terms, a Judge might award you joint custody and/or shared custody.

Joint custody means that both you and your wife will have equal decision-making authority with respect to all major decisions affecting your children. It does not matter whether your children live most of the time with your wife as your decision making authority is not dependent on how often the children reside with you.

Shared custody means that the children live with you at least 40% of the time over a course of a full calendar year. An example of shared custody would be the children living with you and your wife on a week-on-week-off basis and the children living with each of you for an equal amount of time during their holidays from school.

In recent years, Judges have been making efforts to avoid using the terminology of “custody” and “access.” Instead, Judges are using words such as “primary residence,” “secondary residence,” and “decision-making authority.”

For a more detailed discussion about the different types of custody and residence arrangements we encourage you to read “Separating from Your Spouse 101” or visit www.myontariodivorce.com.

Our next series of articles will focus on the most important issues you need to consider if you are planning to separate from your spouse in Ontario. Here are the first two:

My wife and I just separated. We were only married for 2 years and do not have any kids, do I have to pay her spousal support?

It depends on a number of different considerations including whether and for how long you lived together prior to getting married, if she earns less money than you and if so how much less, if she requires financial support, if you have the ability to provide her with financial support, if your wife sacrificed her career when you got married and her ability to become self-sufficient in a short period of time, to name a few.

All of these factors will be taken into consideration by the judge in determining whether you should pay your wife some spousal support, and if she so, how much and for how long.

When determining the amount of spousal support to be paid and the duration of support payable, if any, many judges in Ontario now rely on the Spousal Support Advisory Guidelines. The Guidelines will generate a transitional amount of spousal support, with the length of the transition period being proportionate to the length of the parties’ cohabitation/marriage. For short marriages, like your own, the amount of support generated by the Guideline Formula will often be small and for a very short transitional period.

The short transitional period allows spouses time to achieve or approximate the same standard of living that the spouses enjoyed while married, while at the same time encourages a clean break between the spouses.

Unless you lived with your wife for a number of years before you got married, if the judge orders any spousal support, it will likely be for no more than 2 years.

For a more detailed discussion about how to determine whether your wife is entitled to spousal support and if so, how much you would have to pay and for how long, we encourage you to read Lecture 3 of “Separating from Your Souse 101”, pages 37 to 52.

My husband and I just separated and he has agreed that I have custody of the kids, how much child support will I receive?

The amount of child support is set by the Tables to the Federal Child Support Guidelines and will be based on your husband’s income and the number of the children you have. For example, if your husband makes $123,000.00 a year and you have two children, he is required to pay you $1,679.00 per month in support.

In addition to the Table amount of child support, your husband will need to pay his “proportionate share” of your children’s special and extraordinary expenses. These expenses include the following:

1. Daycare/childcare for your children while you are at work or at school;

2. Medical and dental insurance premiums for any private insurance benefits you have for your children;

3. Non-insured medical, dental and health care expenses;

4. Private school tuition or tutoring;

5. Post-secondary education expenses such as tuition fees, books, residence and student fees; and

6. Abnormally high expenses for your children’s extra-curricular activities such as the fees for your son to play rep-hockey or baseball.

How much your husband has to contribute to these additional expenses depends on what your income is. If your annual salary is $60,000.00, than your husband would be required to pay 67% of the cost of these expenses. You would be responsible for paying the balance.

 

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