Best Familylawyers in Canada as ranked by Lexpert
The practice area of Family Lawyers is generally understood to comprise the provision of advice and representation, whether by way of negotiation, judicial proceedings, alternative dispute resolution, mediation or arbitration, in all matters relating to spousal and parental rights arising from paternity, cohabitation, marriage, separation and divorce.
This includes the preparation and negotiation of all manner of domestic and marriage contracts; acting with respect to the custody and access rights of parents and matters involving the welfare of children; acting with respect to spousal and child support and maintenance; advising with respect to the division of property interests consisting of rights in family property, business and professional activities, pensions and estates; and advising as to the tax implications of marriage and divorce.
What does a family lawyer do?
Family law, in its general sense, is the part of the law that deals with family-related matters, starting from marriage, rights and obligations of parents vis-à-vis their children, and the rights of a child. It may overlap with criminal law as to young persons in conflict with the law or juvenile law, and is also related to inheritance law and property law, such as testate and intestate laws.
One of the most contentious branches of family law deals with separation and divorce. Corollary to it are spousal support, child support, and child custody (or is now referred to as “parental time” in Canada).
With the intricacies and mostly overwhelming subjects of family law, coupled with the emotional burden that comes with it, family lawyers are best consulted with for whatever domestic disputes a family may have. The best family lawyers can easily guide children and parents through various federal laws, in addition to provincial and territorial statutes, and government regulations, to come up with solutions that are best for the family.
In resolving domestic and family disputes, family lawyers also apply their negotiation skills through mediation or arbitration, which can relieve the family from going to litigation and spending precious time and resources for it. Mediation and arbitration also assure the confidentiality of the proceedings, which are sought out especially when dealing with private family matters, such as financial support and parental arrangements.
Family lawyers also help families in preparation of legal documents, such as cohabitation agreements, pre-nuptial or pre-marital agreements, and wills or estate plans.
What governs family law in Canada?
The main statute in Canada on family law is the Divorce Act, which governs divorce and other reliefs in connection with it. Based on the Divorce Act is the Federal Child Support Guidelines which will be applied by courts to compute the amount for child support after a divorce.
In matters regarding spousal or child support orders, the Family Orders and Agreements Enforcement Assistance Act (FOAEAA) and the Garnishment, Attachment and Pension Diversion Act (GAPDA) are the federal statutes to help enforce these orders, in addition to the provincial and territorial laws regarding the same.
Divorce Act
The Divorce Act is the federal law of Canada which establishes the grounds of divorce and provides for reliefs available to either parent and their children, such as child/spousal support orders, parenting orders, parenting plans, among others. This law forms the very basis for what family lawyers practice.
Grounds for a divorce
According to Section 8(1) of the Act, Canada only has one ground for divorce – marriage breakdown. Either of the following circumstances may be the basis to legally establish such ground:
Dismissal or granting of divorce
Before proceeding with the divorce, the court should then be satisfied that reconciliation between the spouses cannot be had, and a 90-day cohabitation period may be imposed. If the court finds that reconciliation may still be resorted, it may suspend the divorce proceedings, with the possibility of its resumption subject to the application of either spouse.
If the grounds used for a divorce proceeding is physical or mental cruelty, and the court finds that there has been connivance and condonation on any of the spouse, it may also dismiss the proceedings. An exception would be is if the public would be better served if said divorce is granted, notwithstanding the presence of connivance and condonation.
Procedure for divorce
As for the specific procedures of a divorce proceeding, this would be within the ambit of the provincial or territorial regulations. This would include the forms needed to be filled out, the schedules, and the payment of legal fees. The best family lawyers must be aware of both the federal and provincial laws which govern family law in their area.
Child support and spousal support
According to the Act, a divorce proceeding would be stayed unless child support has already been agreed. In here, the court computation of the support would be based on the Federal Child Support Guidelines, which may vary per territory or province.
Once there had been a determination on the amount, a (child and/or spousal) support order is issued by the court, which may be enforced if the spouse directed to pay the support does not faithfully comply with the said order through the provincial or territorial Maintenance Enforcement Program. Any variation or changes to the said support order may only be made with the permission of the court.
Parenting time or arrangements
Previously called “custody” or “access”, the “parenting orders” or “parenting arrangements” are orders or plans that detail the relationship between a parent and their child or children after the divorce, in the exercise of the spouse’s “parenting time”. However, the change in terminologies makes no changes on the calculations of the amount of child support. Matters agreed upon a parenting order may include the relocation of the child and schedules of each spouse’s parenting time.
These orders are made by the court with best interests of the child in mind, according to the Act. Where both spouses cannot agree on the terms of the parenting order, the court may decide on it based on the best interests of the child, whose primary consideration is the holistic well-being of the child, among any other factors.
What are my rights as a parent in Canada?
Before divorce, both parents have the full parental authority as to their children. However, this changes after divorce, since parental authority would now be based upon the court’s parental order.
When a spouse has been granted the parenting time, said spouse has the full responsibility of the child and make day-to-day decisions for the said child. In addition, said spouse also has the decision-making responsibility which are major decisions for the growth and well-being of the child. Contact orders may also be included during the parenting times, mentioning the visitation rights of the child’s relatives and other extended family, such as the grandparents.
Family lawyers may help spouses and children going through these rights, especially when there have been violations of these orders or arrangements.
Thinking of entering a divorce or would want to consult regarding family disputes? Consult with Lexpert’s best-ranked family lawyers in Canada by heading below.
