Article written by Kim Brown
We’re always happy to hear our clients tell us that they’ve done some preliminary research on family law and divorce. Being informed and having an idea of what you want from a divorce can make the process simpler, quicker, and cheaper. But, the paradox of having access to so much information is that not all of it will be accurate, or true.
Below are some of the most common myths our lawyers have heard, accompanied by more accurate information to clear up those myths.
Adultery is the leading cause of divorce
While a cheating spouse will create instability and distrust a marriage or relationship, it is not the main reason why couples separate. It’s actually more common for couples to call it quits if money or poor communication become long-term issues.
Judges will always side with the mother in a child custody matter
When making a decision about custody, it is the Court’s responsibility to ensure that the child’s best interests are preserved. Historically, when couples with children separated, the mother would often become the primary caregiver because she spent most of time with the children, and was in a better position to provide for them emotionally and physically. But things have changed quite a bit; today it’s not uncommon for both parents to work full time and share the responsibility of raising their kids. As such, awarding joint custody to couples is becoming the norm in Family Court, and in some cases the father becomes the primary caregiver.
Court-ordered child support payments can be reduced if both parents agree
Ontario law clearly mandates the governing principle that all children have a right to receive financial support from their parents. A judge will use the Federal Child Support Guidelines, and assess the individual circumstances of each parent to determine the amount of support required by the non-custodial parent to ensure the child’s or children’s needs are met. While parents can make an application to change the amount if new circumstances arise, such as loss of employment, they should not make any informal adjustments. This is because payment reductions could affect the child’s overall quality of life, and child support is ultimately about ensuring the child has a stable place to live and grow.
Property division is an automatic right for common-law couples
Unlike married couples, common-law partners living in Ontario can dissolve a union at any time without having to take legal action. That being said, there are also no laws to govern the division of any property they may have shared. So, even if a couple has lived together in one home for several years, the home is not automatically divided should that couple separates. A party can take the issue to court though and make an unjust enrichment or resulting trust claim.
Visitation can be denied if a parent doesn’t pay child support
Unfortunately, there are instances where a non-custodial parent will not provide child support payments on time. When this happens, the primary caregiver may be tempted to withhold visitation rights until payment is made. But children have a right to maintain contact with the non-custodial parent, unless access is not in their best interest, and there can be serious consequences for parents who unjustly deny their ex access to the child, including a transfer of custody.
Cheating spouses will pay
Adultery can be emotionally devastating, and it is one of the established grounds for divorce in Canada. However, if a spouse cheated, that does not mean their partner will be entitled to take everything. Unless there is proof that the unfaithful spouse intentionally or recklessly depleted the family’s assets, cheating will not influence how assets are divided.
Do you have a question about family law or divorce? Book a consultation and get credible legal answers from one of our lawyers.