Family law touches everyone in the family in different ways. Meeting Hendrikx Family Law is a step forward to a new normal. The interactions that you have with professionals involved in your matter will directly impact your wellbeing. Legal services and procedures are complicated and impactful.
Hendrikx Family Law can provide opinions and recommendations you in all areas of Family Law including:
- Custody of children, step-children
- Parenting Time and Decision Making
- Grandparent Rights
- Child Support and Extra expenses
- Spousal Support
- Matrimonial home
- Exclusive possession of the matrimonial home
- Property Division – equalization of net family property
- Trust Claims and Joint Family Venture Claims
- Pension Division
- Sale of Property
- Hendrikx Family Law can provide resolution opinions:
- Separation Agreements
- Paternity Agreements
- Marriage Contracts (Pre-nuptial Agreements)
- Cohabitation Contracts
- Court Orders
- Variations of prior Court Orders
- Enforcement of Orders and Agreements
Initial Client Meeting
Your first meeting with a lawyer will involve an overview meeting about the circumstances of your family law matter. We will review the main issues in your matter and the scope of our firm’s representation. We will provide some observations with respect to the legal issues to be resolved and provided a proposed plan of action.
Process – Negotiation, Mediation and Court
There are numerous processes available to parties to achieve resolution. Parties can try to negotiate, mediate, or use the courts to settle their matters.
Negotiation between lawyers and the family is a common way of resolving family law disputes. Once lawyers are retained the parties begin the process of financial disclosure and preparation of financial statements. Sometimes a four way meeting is arranged between both parties and their lawyers. This is used as a way to narrow and to settle issues. The outcome of a negotiated settlement can be a Separation Agreement. This is a comprehensive contract that governs your rights and responsibilities surrounding the breakdown of your marriage.
Mediation is a way of resolving disputes whereby a trained mediator assists the parties to resolve disputes. Mediators are neutral third parties who facilitate direct negotiations between parties or assist negotiations between lawyers and parties. A mediator cannot make a binding decision but can shape expectations and communication towards settlement. Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse. Where one party is afraid of, or intimidated by, their spouse, mediation may not be a good idea.
Arbitration is the use of a neutral third party who assists in the settlement process but can also make binding decisions. Parties must sign an Arbitration Agreement before the arbitrator can make binding decision called an “Award.” The parties must have independent legal advice prior to entering the Arbitration Agreement.
Court is usually the last resort in family law matters. The court is useful when an impasse is reached that cannot be resolved between the lawyers. Court may also be necessary where there is a financial or power imbalance affecting the parties’ ability to negotiate a settlement.
The choice of which process is used must be a deliberate, strategic and informed decision. The overwhelming majority of cases are resolved through direct negotiation or assisted negotiation resulting in a Separation Agreement.
Issues of domestic violence, drugs or alcohol abuse, fear and power imbalances are concerns that impact the resolution of family law matters. These issues must be addressed before and during the resolution and option generation during our meeting If the time should come when you do fear for your or the children’s safety you must contact the police immediately. The police are best suited to resolve issues of threats and violence.
Divorce is generally the last step in the family law process. Separation Agreements and Court Orders resolve family matters but they do not legally end a marriage. The only way to do this is to make an Application to the Court for a divorce. Only a court can grant a divorce. In order for a divorce to be granted, you must have been separated from your spouse for one year and financial matters affecting the children on the marriage have been resolved. There are circumstances when you can be separated and still remain living in the same home. A divorce judgment becomes effective 31 days after it has been granted.
Full financial disclosure is mandatory pursuant to the Family Law Rules. Each spouse is responsible for fully disclosing his or her assets and liabilities as of the date of marriage, the date of separation and the current date. It is therefore necessary to prepare an inventory of assets and liabilities as at three dates.
Parties will need to gather information with respect to the matrimonial home(s), rental properties, vehicles, furniture and household contents, investments and bank accounts, pensions, insurance business ownership, mortgages lines of credit, credit card debts, outstanding utilities, assets and liabilities at the date of marriage and the date of separation. The date of separation is also called the valuation date.
Once the financial statement is completed, you be asked to swear to the truth of its contents. Your financial statement becomes sworn evidence. It is your responsibility to provide full and frank disclosure. There are significant penalties associated with not providing full disclosure.
Custody, in legal terms relates to the major decisions that parents must make on behalf of their children. There are many misconceptions about the word “custody”. Custody involves much more that the physical care of a child. Decisions including the health and well being of the child, educational choices and religious upbringing are examples of key decisions that custodial parents must make.
When deciding on custody of the children the courts apply the best interest of the children test. Joint custody means that the parents are able to communicate with each other and make decisions jointly in the best interest of their children. In joint custody arrangements the parents share the responsibility for decision making. Each parent has equal rights to decision making. This type of custody arrangement provides continued interaction with both parents and helps to maintain strong bonds between the parents and the children. You must be able to co-operate and communicate with your spouse to ensure that joint custody is successful.
In situations where the there is conflict, the parental relationship is strained, one parent is undermining the relationship between the other parent and the child and there is no communication or co-operation, a court may grant sole custody to one parent. There must be factual evidence in support of this claim. Once again the court will use the best interests of the child test when making their decision.
Child support is the right of the child and cannot be waived by the parent. Family law provides that every parent has an obligation to provide support for his or her unmarried child, who is a minor or in enrolled in a full time program of education, to the extent that the parent is capable of doing so. Both parents are responsible for the financial support of their children.
The amount of support is based on the payor parent’s income and the number of children in the household. The amount of child support is governed by the Child Support Guidelines. The Guidelines provide a reference chart that calculates the amount of support payable based on income. Child support is payable monthly and subject to increases or decreases based on the payor’s income.
Equalization of Net Family Property
Family law requires you and your spouse to “equalize net family property”. In Ontario the law treats a marriage as an equal economic partnership. If the marriage ends, the value of the property acquired during marriage and the increase in the value of the property brought into the marriage will be divided.
There are, of course, exceptions to this rule such as the treatment of the matrimonial home. If the home in which the parties are the ordinary resident on the date of separation was brought into the marriage by one of the parties, that party cannot deduct the value of the home on the date of marriage.
Upon separation or death, spouses are required to account for the value of all assets and debts in their name; including partial interests in jointly owned property. The parties’ assets, less their debts on date of separation, less equity held on date of marriage (other than in the matrimonial home) creates an amount referred to as “net family property (NFP)”. The spouse with the greater NFP pays the spouse with the lesser NFP one half the difference. This is called the equalization payment.
In most marriages the house is the single most valuable asset the parties own. Property can be held jointly or solely. It may be necessary to search the legal title of your home to ensure what ownership structure is in place.
Married spouses have equal right to occupation of the home. This means that until a judge decides or you agree, both of you have equal right to live in the matrimonial home. Neither party can mortgage the home, rent it, sell it or change the locks without permission.
Spousal support is sometimes called “alimony” or “maintenance payments.” In Canada we use the term “spousal support” when it has been determined that one spouse continues to require financial support from the other. Spousal support can be a contentious issue between parties.
The theory of spousal support is that marriage and cohabitation create economic partnerships. When these partnerships break down there is an obligation to the partner who is at an economic disadvantage. At the same time the law expects adults to try to be economically self-sufficient and to be responsible for their needs to the best of their abilities.
Spousal support is not an automatic right. A party must first prove that they are entitled to support. In making an order for spousal support the court must take into consideration many factors such as the length of time the parties were married, the functions performed by each spouse, whether there are any children in the relationship, whether one spouse made sacrifices in their career for the other spouse. Each case is unique and each case must be evaluated on its own merits.
Some of these factors are very subjective and this led to a disparity in spousal support awards. The Spousal Support Advisory Guidelines have been introduced in order to provide for a range of support amounts based on the age of the spouse receiving support, the length of marriage and the presence or absence of children.
Spousal support is calculated after financial disclosure has been exchanged between parties.
Will and Power of Attorneys
With a change occurring with your marriage it will be necessary to change your will. You will also need to change the beneficiaries on any insurance policies held privately or through employment. You will also need to ensure that your beneficiary designation is changed on RRSPs and any investments held.
Conflict/ Length of Time
It can take a number of years for family law matters to be settled by either trial or agreement. It is important for you to understand that the amount of money spent on legal fees in a family law case is directly related to the level of conflict in your case, and the way in which that conflict is resolved. It is the lawyer's job to resolve the dispute on your behalf, and on your instructions.
The level of conflict in your case will be a direct reflection of the level of conflict in your relationship with your former partner. Our job is to assist you in resolving that conflict, not in making it worse.