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| FAMILY LAW
Ms. Gauthier prides herself in attempting to resolve the family law
issues a person may be facing in the least stressful and costly
fashion. This means that “going to court” is the last option.
WHAT IS INVOLVED IN FAMILY LAW?
Family law relates to family matters such as relations between spouses,
or children and their parents, and it deals with other aspects related
to marriage and divorce, such as custody and access, child and spousal
support, property rights and division, separation, divorce and
independent legal advice.
Custody and access
“Custody” means the living arrangements for the children of separated
or divorced parents while “access” is the amount of time those parents
will spend with the children. Access is sometimes called visitation
rights. Courts are becoming reluctant to use custody and access when
dealing with children. They prefer to use “parenting plans”. However,
the terms custody and access will be used in this website to reflect
Generally, it is always better for the children when the parents can
work out the arrangements on their own, through a written agreement
that explains the specific terms related to custody and access. Court
orders should be the last resort. Following are the different types of
This type of custody is probably the most traditional. When a parent
has sole custody, the children live most of the time with that parent,
and he or she makes all the daily decisions related to the children.
The other parent is usually defined as the “access parent” and has the
right to visit with the children at specified times. This parent also
has the right to receive information related to the childrens’ health,
education and welfare.
Except under special circumstances, courts are becoming reluctant to
award “sole custody” orders to one person. Most orders are for joint
This type of custodial arrangement has become the preferred arrangement
by the courts. “Joint custody” means that both parents equally share
the responsibility of making important decisions on health, education
and welfare relating to their children. The children can reside
primarily with one parent and have “access” to, or visit with, the
other parent. With this type of custody, parents have to get along well
since they will be discussing regularly what is best for their
Joint shared custody
If the parents have decided that the children will be residing with
each parent on an equal time-sharing basis, they are agreeing on a
“joint shared custody” regime. In this case, the children reside with
each parent for an equal amount of time, on an alternating schedule,
whether weekly (the most popular choice), bi-weekly or as otherwise
specified in their agreement. As with joint custody, the parents who
choose this type of custody must be able to get along well.
Child support is the amount of money that a parent must pay to the
other parent who has custody of the children. A parent who has the
children for more than 40% of the time is the parent who will be
receiving the child support. The main purpose is to help the custodial
parent, or primary residence parent, pay the costs associated to food,
shelter and clothing for the children.
As a general rule, the amount of child support is determined in the
guidelines established by the government. It is based on the gross
income of the parent who pays support and the number of children in the
family. For example, if a father paying child support earns a gross
annual income of $45,000 and has two children, he will have to pay $664
monthly in child support.
For more information on the guidelines, please visit
To find out how much you have to pay or how much you could receive in child and/or spousal support, please visit
In addition to child support, there are other expenses related to
children that need to be paid. They are called “extraordinary expenses”
and may include daycare, medical and dental expenses that not covered
by employer plans, educational costs and extracurricular activities.
Extraordinary expenses are usually paid according to each parent’s
gross annual income. The lawyer will help determine the amount that
each parent needs to pay for such expenses.
The payment of child support and extraordinary expenses is a legal
requirement. No one can refuse to pay. Courts have been stern when
dealing with parents who refuse to pay, who refuse to provide income
information to the other parent or even with parents who leave their
employment to avoid payment.
The spousal support is money that one spouse pays to the other as
support once the relationship ends. It helps deal with the economic
consequences following the break-up. It is not mandatory for a spouse
to request spousal support even if it is a legal entitlement.
Although there are no official guidelines for spousal support, courts
are attempting to quantify this type of claim by using each party’s
current income and analyzing what each spouse has at his or her
A person asking for spousal support must nevertheless attempt to become
self-sufficient and cannot simply stay at home and expect to receive
this type of payment. Similarly, a person who is asked to pay spousal
support cannot refuse. What usually needs to be defined for both is the
amount to be paid and how long the spouse will have to pay.
Spousal support is for some the most controversial of family law
related issues. The information provided above is only a simplified
version of what is considered a complex issue. You are asked to consult
your lawyer before agreeing or negotiating on this issue.
Property can be many things, for example, RRSPs, bank accounts, pension
plans, real estate holdings and vehicles. As a general rule, the
property that each spouse owned before entering into the relationship
remains his or hers. However, the property that they acquired together
up to the date of separation must be divided or shared, whether the
property acquired is an asset or has become a debt. Debts may include,
for example, credit card liabilities, mortgages and loans.
If one spouse owns more property than the other, a payment or transfer
must be made to the other in order to ensure that both spouses leave
with an equal value. This process is called “equalization”.
Note: Property is a very complex area of family law; the above
information is given strictly for general reference. Also, current
legislations do not apply in the same way for common law relationships.
For example, the provisions may vary when dealing with a family home
When two people living together in a relationship decide to end the
relationship, they separate. One spouse does not need to physically
leave the home in order to separate. In fact, although not as common,
some couples may decide to separate but remain in the same home.
Generally, this means that they no longer share in the usual aspects of
a relationship but decide to remain in the same property until they can
resolve their issues, whether these issues relate to property or the
It is important to determine a correct date of separation. In family
law, this date is called the “valuation date”; it is the date that will
be used to calculate the value of all assets owned and debts owed as of
that date. It is also the date that will be used by a judge in order to
grant a divorce.
The judicial system currently in place in Canada for divorces is a
no-fault system. Generally, a judge will not be interested in knowing
why you are requesting a divorce and will not be influenced if you
oppose your spouse’s request for a divorce for moral, religious or
other personal reason.
A divorce will be granted based on one of the following reasons:
• if the spouses have been separated for at least one year;
• if one spouse claims that the other has committed adultery; or
• if one spouse claims that the other has committed cruelty.
The issue of the divorce can be severed (separated) from the other
issues you may have with your spouse. Those other issues, known as
“corollary issues”, may be dealt with at a later date and separately.
As a general rule, judges prefer to grant a divorce judgment only after
the issues related to custody and support of the children have been
settled in a written agreement or following a court order.
Independent legal advice
If you have decided not to obtain the services of a lawyer to help you
with your particular family law related issues, you may nevertheless be
required to obtain independent legal advice at some point in any of the
Ms. Gauthier gives Independent Legal Advice on
such issues as Separation Agreements, Cohabitation Agreements and Marriage Contracts.
Her fees are $700 + HST.
HOW CAN I PROTECT MY RIGHTS OR RESOLVE MY PROBLEMS IN A FAMILY DISPUTE?
You can protect your rights by entering into a Cohabitation Agreement
or Marriage Contract and you can resolve your family law problems by
signing a Separation Agreement.
Cohabitation agreement and/or marriage contract
In general terms, two people enter into a cohabitation agreement and/or
a marriage contract for the purpose of protecting what each person owns
or possesses before moving in together or getting married and defining
what happens to the property they purchase independently or together.
These types of agreements are also legally binding on both parties and
usually do not require any future changes to the terms they contain.
To enter into this type of agreement, both parties have to agree on the
terms and it is highly recommended that they both exchange all
Ms. Gauthier first and foremost encourages a settlement between the
parties. This can be attained through discussions between her and your
spouses’ lawyer, through meetings with all parties involved or as a
result of the spouses’ consultation with an independent negotiator or
A person cannot force another person to enter into negotiations through
their lawyer or mediator. If one of the parties does not wish to
negotiate, then the only option is to take the matter to court where a
judge will decide on important family law related matters, based on the
information he or she will receive from each lawyer.
Most often, the parties will enter into a “separation agreement”, which
will contain the terms that both spouses have agreed to. A separation
agreement has the same legal effect as a court order given by a judge.
The separation agreement is binding on both spouses, whether there is a
need to obtain a divorce or not. Notwithstanding this binding aspect,
it does not mean that it cannot be changed at a later time. Generally,
only the issues relating to the children and support may vary or be
changed. Property issues are usually resolved on a final basis.
There are many circumstances where both spouses or former spouses need
to agree to change the terms related to custody and/or child support,
or spousal support. For example, a child may have become independent or
may wish to reside with the other parent. As well, the amount of income
a person earns could have changed (it increased or decreased), thus
resulting in the revision of the amount of child support or spousal
support that this person is paying. As a general rule, if a support
payer’s income changes, then the amount of support that is being paid
must also change.
A person may ask a court of law to determine, or to decide on, matters
related to family law.
The Ottawa judiciary encourages all parties to negotiate between them
and their lawyers, and attempt a settlement satisfactory to both of
them. Their lawyers will give them advice on what they are entitled to
ask of the courts and the process involved should they need to go to
- WE WILL MATCH OR BEAT ANY WRITTEN QUOTE -
A flat fee of $2,500 is charged to obtain a divorce judgment. This
means that all other issues are dealt with separately. The fees include
the court filing costs payable to the Ontario government.
To obtain a divorce, the original marriage certificate and other
specific information is needed in order to ensure that all forms are
properly completed for filing, in accordance with the procedures
established by the court system.
People may also file for divorce on their own. For some time now, the
forms used to request a divorce have been available on the Internet or
at the Family Law Information Centre located at the Ottawa Court House,
161 Elgin Street. These forms have been generated and formulated for
the general public and are free. You can also obtain the forms at the
Independent legal advice
Independent legal advice is provided for a flat fee of $800, plus HST.
This includes meeting with the person who needs legal advice, reviewing
any agreement involved, making suggestions for changes if needed,
answering any questions the person may have with respect to his or her
rights and witnessing the person’s signature on the agreement. Ms.
Gauthier will also provide the person with correspondence outlining the
terms of the agreement that were discussed and the advice given.
A flat fee of $2,500, plus HST is charged for the preparation of a
separation agreement. This includes drafting or reviewing the
agreement, drafting or reviewing a financial statement and all
correspondence exchanged between the client and the other person or
lawyer, meetings with the client and the final execution (signing) of
the separation agreement.
This fee may be less if not all issues that are usually contained in an
agreement need to be addressed. For example, there may not be property
or children involved.
Cohabitation agreement or marriage contract
As with a separation agreement, the cost for this type of service is
$2,500, plus HST. This rate is also negotiable.
Ms. Gauthier’s hourly rate is $325. A general retainer of $2,500 is
required. As the case progresses, additional funds will be required.
Other costs will include office disbursements such as copies, faxes,
courier services and process server. As well, if the client’s case
requires a judge to review divorce or property issues, an additional
amount of $447 will have to be paid to Ms. Gauthier so that she may
file your claim.
If you are a returning client or have previously done a real estate
transaction at Gauthier Law Office, and you wish to have a Wills or
Powers of Attorney, the fees will be reduced by 25%.
For more general information on family law and the court system, please
visit the following Web sites: