You will find some of the most common questions that users of this site have about child support and spousal support below.
Being prepared in your family law file will save you time – and money.
The following posts let you know how you can do some of the background work to collect the appropriate information and documents when planning for a family law case.
Geoffrey Wells, a lawyer at MacDonald & Partners, spent the morning talking about Family Law, Divorce and Custody payments on 102.1 the Edge. While talking with a man confused about how child support was calculated, Geoffrey mentioned MySupportCalculator as a resource to use to help understand the amount of child support expected to be paid.
You can listen to the interview here.
If you are bringing a case to Family Court in Ontario for divorce, spousal/child support, or child custody/access, you will likely be using Form 8. So here is a step by step walk though of things to think about if you are filling out this form.
The first step is to fill out page 1 with you and your (ex) spouse’s contact information. Because you are the one filing the Form 8, you are the applicant and your (ex) spouse is the respondent.
Leave the court location, seal and court number blank for now. Select the box that has the appropriate track for your court case. If you are seeking divorce or property, you should check the ‘standard track’ box. If you have a number of issues you wish to bring before the court, you may consider filing two forms, one ‘fast track’ form with urgent matters like spousal support or child custody, and one for the standard track.
Page two is left mostly blank, except for if the motion you are making to the court asks for child or spousal support. If you are asking for support and not access to the home or property check the first box. If you are seeking exclusive access to the matrimonial home, check the second box.
Leave the date and signature location empty.
This is the page where you will fill in more information about you, your spouse, and any children who might be involved in the case, it is a good idea to list ‘dependents’ even if they are no longer ‘children’. Generally anyone under the age of 23 who is going to school or still living at home might qualify.
This portion of the form is the most difficult. The general rule is to select form boxes 10-18 if you are doing a ‘fast track’ court case, or from the full card if you are on the standard track. If you are getting a divorce, you can replace some of boxes 10-18 with 00-05. For example: you should replace select 01 instead of 10 if you were looking for spousal support while getting a divorce.
It is common to select box 30, asking for costs, as well.
Page 5 is where you can list the facts that you think support your claim. Try to be brief and create a clear line of thought. If you are getting a divorce, you can use the three check boxes at the top of the page, but select only one. ‘Separation’ is the most common reason for marital breakdown given. There is no advantage to giving the reason of cruelty or adultery beyond it allowing you to file earlier than the 1 year separation requires. However, attempting to prove cruelty or adultery in court almost always takes longer.
To start the process of divorce, you will need to file an application for divorce with the courts. The specific forms needed will vary by province. For an overview of the process of going to court, please read our overview of the court process. This page goes into detail about the process for Ontario, which involves filing Form 8.
Applications for Divorce in Ontario
In Ontario Family Law, you need to file an Application for Divorce, in Ontario, this is known as Form 8. If you are looking for a ‘simple’ divorce, where you and your spouse agree on issues of custody, property, and support then read about filing Form 8a. For cases involving custody, property or support, Form 8 is the form discussed here, although more complicated cases might need a different form which can be found here.
Filing the Application
Filing an application for divorce is the first step, and it set’s the stage for everything to come. It’s a good idea to have a legal professional help you with this step, since mistakes made here can slow down the entire divorce. To learn more about how to connect with legal professionals that can help you, [[Legal Help| read this].
- Fill in the name of the court and the court address at the top of the page.
- Leave the ‘court file number’ empty.
- The person filing the document is the Applicant, so write your name and address in the Applicant box.
- Fill in the name of your spouse as the Respondent.
- Include contact information for lawyers if either of you have one.
- Check the ‘Standard Track’ box, (Divorces cannot use the fast track)
- If you are making a claim for support or property, check the box that applies to you. If not leave them blank.
- Leave the rest of the form blank.
- Fill in the personal information for you, your spouse and your children. Remember, you are the applicant, and your spouse is the respondent.
- Relationship Dates: Include your best guess if you aren’t sure when exactly you started living together, or when exactly you separated.
- Children who are over the age of 18 but still ‘dependent’ should be listed on this sheet as well, for example, children who are still attending university or living at home.
- Previous cases or agreements: It’s possible that you and your spouse might have been in a court case before, or have a previous written agreement about an issue that is now in dispute. It’s important to know that in some circumstance, judges can reverse some elements of written agreements. Mark the date and subject of the matters, and include them in the Continuing Record.
Page 4: This page will detail all the things you are asking the court to do. Since you are asking for a divorce, make sure to check box 00.
- In general, you will be ticking off some combination of boxes from 1 to 5, but this portion of the form can be complicated, and it is advisable to seek legal advice.
Page 5: On this page you give the reason for the divorce. Separation is the most common reason given.
- Check only one box to describe the reason for your divorce.
- Be sure to sign and date the application. If you have a lawyer, he may sign and date the lawyers certificate.
Where to file the application
Because you are filing for a divorce, you must file in the The Superior Court of Justice (Family Court). You can find the location of the closest court here.
Additional documents to file
In addition to the correct form, you must also filing a continuing record. Continuing records contain documents filed in a case. To get some examples of what a continuing record looks like and how to build them read this.
What to do after the application has been filed?
Once an application is filed, it must be served on every other party by “special service” according to the criteria described under Rule 6(3) of the of the Family Law Rules. To learn more about serving, read this.
Parties in Toronto before the Superior Court of Justice must attend a mandatory information program called a Family Information Session (FIS), where a lawyer or family law professional will provide information about the legal process, share information about mediation, identify alternatives to litigation, explains the effects of separation and divorce on any children, and points out community resources like My Support Calculator that can help families. Parties cannot take any further step before the courts until they have filed a certificate of attendance at the FIS.
Spousal support is money that is paid by one spouse to the other after they have separated or divorced. It is for the most part paid by the spouse who has more income or assets and received by the spouse who has fewer. Spousal support is generally a monthly payment but in certain circumstance can be paid as a lump sum. If paid as a lump sum it is not taxable for the recipient and not tax deductible for the payer.
Couples that were not married but living together for a period of time may be eligible for support. Couples who lived together for a serious length of time and had a child together, or who lived together for at least 3 years without a child might qualify for spousal support.
It is important to note that spouses are expected, if possible, to become self-supporting as soon as possible.
The spouses can agree on the amount and terms of spousal support themselves. This would be addressed in their Separation Agreement. Often times it may be necessary for the spouses to seek the help of a lawyer or mediator to finalize the terms of the support. If the spouses cannot agree on support, it is possible to seek a court order for spousal support. The first step in this process would be to file a statement of claim.
When deciding how much spousal support one party will receive and how long the other will be expected to pay the support the court will consider a number of different things. How much the spouse who is asking for support requires to meet his or her needs, the length of the relationship, the age of the spouses, the role that each spouse played in the relationship, if there are children involved and the arrangements made for them and how much the other spouse can afford to pay.
Spouses wishing to calculate their spousal support amount themselves can go online to www.mysupportcalculator.ca. However, this website only takes into account employment income. If your spousal support calculation takes into account other factors it may be best to consult a lawyer.
As a final note, remember that spousal support guidelines are different from child support guidelines. Child support and spousal support are also taxed differently.
Barbara Kay calls for significant family law reforms in an article in the National Post, Real family-law reform must start with shared parenting.
She refers to several of the access to justice initiatives currently under way by the profession, but notes,
None of the reports examine the most measurable outputs of Canadian family courts: child support, custody and access orders.
The solution is a default presumption of equal shared parenting (rebuttable where there is demonstrable abuse). This was the recommendation put forward 15 years ago by the Special Joint Committee of the Senate and the House of Commons on Child Custody and Access, whose exhaustively researched report promptly was routed to a political oubliette where, shamefully, it still languishes.
Andrew Feldstein, who practices family law with the Feldstein Family Law Group Professional Corp. has made a strong call for reform in family law.
- Improving legal representation
- Prioritizing children
- Reducing delays
- Balance transparency with privacy
- Prevent future crimes
- Minimize trauma on extended families
- Change the win/lose mentality
- Recognize that Canadian culture is changing
Feldstein covers the initiative in the Law Times:
I cannot effect change by myself. I am looking for comments and constructive ideas from anyone who wants to help. Please don’t stand back. Get involved.
Going to family court can be a long and confusing process. This article is the first in a series that will take you through what to expect at each stage, and will help provide you with links to places where you can learn more about each step.
The first step when taking a matter to family court is an exchange of documents. In general the people involved take turns preparing an application, then a response and finally a reply to the response. Each document has to be filed with the court, as well as being ‘served’. Serving is a formal process where the person who created the document gives it to the other person involved in the case. You can learn more about ‘serving’ here.
The very beginning of taking a matter to court is to have one person file an application. In Ontario, the form to file is Form 8 which has many options for the claims a person can make. The person who fills out that form is know as the Applicant, and they are responsible for filling out the form, as well as ‘serving’ the other people involved in the claim, known as the respondent. You can learn more about filing an application here.
The respondent needs to file a response and serve it to the applicant. The response gives the respondent a chance to address to the facts and claims made by the Applicant, as well as make new claims. Claims by the respondent are known as ‘counter claims’. The respondent has a deadline for filing his response, which, like the forms, can vary by province. In Ontario, the deadline is 30 days, and the form required is form 10 (link). More details about filing a response can be found here.
After receiving the response, the applicant has an opportunity to file and serve a ‘reply’. The reply is meant to address new facts and claims presented by the respondent. You can learn more about how to file a reply, and the timelines involved here.
During this initial period of exchanging documents (known as pleadings), both parties will be normally be required to share their financial information with each other. Depending on the court in which the application was filed, there may be a ‘first appearance’ scheduled, where the applicant and respondent meet with a court official to make sure they have filed the proper paperwork and disclosures finances appropriately. More information on disclosure is available here.
Conferences and Motions
After the pleadings have been filed, the next step is a case conference. This is an informal meeting between a Judge, the applicant and the respondent. In general, the judge will go over the details of the pleadings, and will make orders for disclosure and questioning as needed. The judge might also make some ‘uncontested orders’ (ones where both parties agree). You can learn more about case conferences here.
After a case conference, the applicant and respondent are able to make motions to the court. This ability allows them to request smaller matters be handled until the trial is resolved. Motions often include establishing or varying support or custody arrangements, but all sorts of motions are possible. Read more about what motions are, and how to make them here.
A case conference marks the start of when parties can submit motions, but if a motion is urgent, it is possible to file an ‘ex parte’ motion earlier than a case conference. More details about ex-parte motions can be read here.
Before an actual trial can be occur, a settlement conference needs to be scheduled. It is another informal meeting between judge, applicant and respondent, but unlike the case conference, it’s focus is on resolving issues between the parties. The judge will go over each part of the case, and try to narrow the scope of disagreement between the parties so that if a trial can’t be avoided, it can at least be focused on as few issues as possible.
Once a settlement conference has occurred, its’ possible to schedule a court date, although sometimes the parties will schedule additional settlement conferences after the first in the hopes of avoiding a trial. More information on settlement conferences can be read here.
Family courts are often overburdened, and it can take some time before the parties can schedule a trial date. As the date approaches, one final conference, called a trial management conference, occurs.
Unlike a settlement conference, a trial management conference is focused on the logistics of how the trial will proceed. Both parties will be required to outline who their witnesses will be, and how long they will need to examine them. A judge will make any last minute orders for disclosure or questioning, and both parties will give notice as to what issues they will hope to have the court address. The purpose of the trial management conference is to create a timeline for the trial, and handle the logistical needs of the court. You can read more about it here.
The structure of the trial itself can vary greatly depending on the issues at hand, and what is decided during the trial management conference.
Canada’s Cheif Justice, Beverly McLachlin spoke out on the barrier high legal fees create, and the resulting lack representation among nearly half of Canadians who end up representing themselves at trial.
McLachlin bemoaned the absence of the right to a fair trial for most Canadians, caused by high legal fees at the Canadian Bar Associations annual conference.
The numerous Canadians choosing to self-represent are also straining the judicial system, as the courts are now acting as both lawyer and judge. People are coming to court without legal representation and without legal advice. McLachlin stated that the judge are “faced with telling them what the law is, telling them what procedures are available to them, and trying to help that person while remaining as an impartial arbiter”.
Read more of McLachlin comments on the courts, and access to justice from CBC’s coverage of her appearance at the Canadian Bar Associations Annual Convention.