The divorce rate in Canada is over 50%, which means that many families are deciding that they would be happier living separately than together.
When a couple decides to separate there are decisions that need to be made so that the family can move on in the best possible way financially and emotionally. Here are the main areas where decisions need to be made when a couple decides to separate:
Children: Parents need to decide where children will live, how the children will share their time between the parents, and how parenting decisions will be made. If the parents cannot agree the court will decide for them based on what is in the best interests of the child. Many factors play in this decision, and families are unique, so the best arrangement for one child might not be the best for another. Here is an example.
Let’s pretend that Marg and Homer Simpson live in Springfield, Nova Scotia. Marg Simpson discovers Homer in the arms of her sister, Selma, and finally realizes that she is way too good for Homer. Marg’s first concern is for her 3 children, Bart, Lisa and Maggie. Marg feels it would be best if the children stayed with her in the house and visited Homer in his new apartment in the evenings and on the weekend. Homer is angry with Marg for kicking him out and argues that he wants the children to live with him. A court would consider many factors in deciding where the children should live. Marg has been a stay- at- home Mom with her children while Homer worked, so the extra time she has spent with the children might work in her favour. Marg wants to continue to stay at home at least until Maggie is in school, so it is unlikely that a court would order the children to live with Homer and go to daycare after school rather than have their Mother care for them.
What the court will not consider as part of this decision is the fact that the marriage ended due to Homer’s infidelity. Divorce is no fault. So unless Marg can prove that the children spending time with Homer is not in their best interest, Homer will get to spend time with his children. Rarely will the court decide that it is not in a child’s best interest to spend time with both parents.
Let’s assume that Marg and Homer agree the children will live with Marg. The next factor to consider is how and when the children will spend time with their father. Unless it is not in the best interests of the child, the court will want to maximize the time the children spend with Homer.
Marg and Homer will also have to decide how decisions will be made about the children. Typically it makes sense that the parent whom the child is with will make decisions about their day- to- day care. So when Homer has the children on Saturday he will decide what the children will eat and how much time they can spend on their Ipad. Other decisions, such as where the children will go to school or whether the children require counselling services are decisions that should be made by Marg and Homer together.
Division of Matrimonial Assets/ Debts: The law states that when a legally married couple separates all assets are presumed to be split 50/50, regardless of who owns the asset. There are a few exceptions to this rule, such as business assets.
A couple can negotiate around each individual asset. For Homer and Marg, for example, if Marg wants to stay in the home she may wish to trade off her share of other assets with Homer for his interest in the home. Because Marg has managed the family finances so well the couple has substantial savings. Perhaps Marg uses her half share of these savings to buy Homer’s interest in the home. Or maybe the house is the bulk of what Homer and Marg own. Homer and Marg might agree that Marg can stay in the home with the children until the children grow and leave the home, and then the home will be sold and the proceeds divided. This is called exclusive possession.
Support: The family that has been living as a unit now needs to redistribute their income between two households. To do this sometimes the highest income earner must pay support.
There are two types of support, child support and spousal support. Child support is the easiest to calculate. If the children live primarily with one parent that parent is entitled to receive child support from the other parent. In Marg and Homer’s situation, Homer makes $100,000 per year and the children will be living with Marg the majority of the time. To determine the correct amount of support, the court will apply the child support guideline tables. Marg and Homer simply need to look up the table amount which can be found online. The amount of child support payable is based upon Homer’s gross annual income and the number of children he has and the province where he resides.
The court can also make an order regarding extraordinary expenses, or costs that are not considered to be covered by child support. The most common extraordinary expenses are childcare and uninsured medical expenses. So if Marg returns to work and childcare is required for Maggie, the net cost of child care would typically be apportioned between Marg and Homer based on their incomes. For example, if Homer makes $100,000 per year and Marg makes $50,000, Homer would pay 2/3 of the childcare costs and Marg would pay 1/3.
To calculate spousal support the court also has guideline amounts that they can apply, however the application of these guidelines is not mandatory. Generally, lawyers and the court will calculate the spousal support amount by applying the “Spousal Support Advisory Guidelines.” Spouses are not automatically entitled to support. The court will apply a test to determine whether there is a need on behalf of one spouse and whether the other spouse has the means to pay. The court will also consider whether one party sacrificed career opportunities for the marriage. If so the court may order support to “compensate” the sacrificing spouse.
With regard to Homer and Marg, Homer would be ordered to pay child support based on his income for 3 children in Nova Scotia. Likely Marg would also have a claim for spousal support. Marg gave up her career as an admin assistant to stay home to raise the children. So if Homer has enough income, a court may order him to pay spousal support to Marg.
The breakdown of any marriage is a stressful time. A family that has been operating as one unit now has to reorganize themselves with the same resources to operate as two units. Every family is unique, and no one is better to decide what is best for your family than you are. But in cases where spouses cannot decide, the law is designed to help reorganize the family so that everyone can move forward in the healthiest way possible.
