Practice Areas
Family law is multi-dimensional and our experience and resources
allow us to work with confidence in these areas:
Custody of and Access To Children:
The best interests of your children is the principle that governs
which parent will be awarded custody, and what visitation arrangements
are appropriate. While the ideal resolution of such issues involves
both parents working together towards a comprehensive parenting
plan, sometimes the ideal approach is just not possible. The
parties require our professional assistance and the support of
other trained professionals to negotiate a resolution. When resolution
cannot be reached, it may be necessary to go to court to obtain
an order for custody or access. Regardless
of the circumstances, Kain & Ball is prepared to offer you
the best legal advice and professional support to ensure fairness
in child custody and access.
Child Support:
The basic amount of child support payable is set out in the
tables of the Child Support Guidelines and is based
on the income of the payor parent. The income of the recipient
parent is not taken into account in setting basic child support
payments. In addition to the basic amount, an additional amount
may be payable for special or extraordinary expenses of the children.
Although it may seem straightforward to determine child support
by simple application of the Guidelines, various issues may arise
which can have serious consequences for both the payor and recipient.
Determination of a parent's income can be an issue, because
income for child support purposes is not necessarily declared
on a tax return. Bonuses, stock options, expense accounts, and
benefits may, in some cases be included in the calculation of
the payor's income. In the case of self-employed persons, the
ability to personally benefit from expenses paid by the company
also may be taken into account.
Adjustments may be made in the basic support payable where there
are shared parenting arrangements and the child resides with
a parent for more than 40% of the time.
Child support payments are tax free in the hands of the recipient
and non deductible from income for the purposes of income tax
by the payor.
We understand the child support Guidelines and
have extensive experience in dealing with all of the issues outlined
above. At Kain & Ball, we can represent you proficiently
in this important area.
Spousal Support: Married spouses, and in some cases common law spouses have the
obligation to support each other. In the case of common law spouses,
the parties have to be in a relationship for more than three
years, or there has to be a child born of a stable relationship
of less than three years.
Although over the last few years a method of calculation has
been put forward in an effort to quantify spousal support similar
to the way child support is quantified, the Spousal Support Advisory
Guidelines are not the law.
The amount of spousal support to be paid, and how long it is
to be paid, for both married and unmarried spouses,
is discretionary, and is
based on general principles – such
as the needs of the recipient, and the ability to pay of the
payor spouse – and takes into account various circumstances of
the relationship which may impact a spouse's ability to generate
an income from his or her own resources. Kain & Ball has
negotiated many spousal support agreements over the years and
we're ready to share our knowledge with you.
Property Division as Between Married Spouses: Upon separation, married spouses are entitled to an equalization
of their net family property. This means that they are entitled not to
the division of the property itself, but to the value of the
property. The process involves
the application of a specific calculation which is set out in detail in the Family
Law Act .
This calculation results in one spouse (the one with the greater
net family property) owing the other spouse a debt (equalization
payment). It's important to note that an equalization payment
may amount to more or less than half of the other spouse's assets.
When calculating net family property, the value of all types
of ‘property' is included in the calculation: land, buildings,
bank accounts, businesses, stock, stock options, pensions' accounts
receivable etc.
Application of the principles governing equalization of net
family property can be complex, and subject to many variables
which can have a significant impact on the bottom line. When
it comes to property division, it pays to consult a lawyer and
Kain & Ball is the logical choice based on our experience.
Property Rights Between Unmarried Spouses: Unmarried spouses do not have the same rights to equalization
of net family property under the Family Law Act as
married spouses.
The extent to which persons who are not married may assert a
claim against each other with respect to property varies widely
depending on the circumstances relating to their relationship
and the property in question. At Kain & Ball, we understand
the variables because we've negotiated property rights settlements
for unmarried spouses for many years.
Exclusive Possession of Matrimonial Home:
The matrimonial home is the property that the spouses ordinarily
occupy as their family residence at the time of separation. There
may be more than one matrimonial home for a family (for example
a cottage or other vacation property in addition to the house).
Regardless of the registered owner, either spouse may be entitled
to possession of the home to the exclusion of the other spouse
in certain circumstances.
In certain circumstances, if you are a registered owner of
the matrimonial home, you may be entitled to force a sale of
the property before all issues are finalized.
Divorce Proceedings: There is one ground for divorce in Canada: marriage breakdown.
Marriage breakdown can be evidenced by the spouses' separation
for at least one year, by cruelty, or by adultery. Most divorces
are granted on the basis of the one year separation. The separation
can begin to run as soon as the spouses no longer reside together.
It's not necessary to have a separation agreement or “legal separation” for
a year prior to commencing a divorce.
In some cases, separation can occur while the spouses remain
under the same roof, but live separate and apart, provided that
they (or at least one of them) has formed the clear intention
not to live together. For basic or complex divorce proceedings,
Kain & Ball has the experience you need.
Negotiation and Preparation of Domestic
Contracts:
Domestic contracts include Marriage Contracts, both before marriage
(pre-nuptial agreements) and after marriage if circumstances
arise which require a couple to define, expand or limit the rights
and obligations afforded to them under family law legislation.
In addition, for unmarried spouses, cohabitation agreements can
address obligations for support and avoid potential property
claims which may arise during a couple's common law relationship.
Negotiation and Preparation of Separation Agreements: Negotiated agreements are the best way to resolve issues. Separation
Agreements can be in settlement of all claims arising out of
the separation of parties. In negotiating settlement, in all
cases, full financial disclosure is required from both parties.
Where there are issues of support and property division, the
requirement for exchange of information can be extensive, depending
on the circumstances of the parties and the complexity of the
financial issues. We understand this and can help you to achieve
the best separation agreement possible for your situation.
Mediation: Depending on the nature of the issues to be resolved, mediation
may be helpful in resolving certain disputes. Our experience
shows it can be especially useful in solving issues relating
to children. At Kain & Ball we have lawyers who have formal
training and extensive experience in both acting as mediators,
as well as representing clients in mediations.
Legal Proceedings: In cases where negotiations prove unsuccessful, and mediation
or other forms of alternate dispute resolution are not appropriate,
you may have to look to the courts for assistance. Kain & Ball
is ready to help with seasoned trial lawyers. Subject to your
circumstances, it may be necessary to commence legal proceedings
against the other party to assert claims for and/or obtain immediate
relief on an interim (temporary) basis concerning issues of:
custody/ access, child support, spousal support, possession of
the matrimonial home, equalization, dissipation of property,
restraining orders etc.
Most cases begin with negotiation. If no agreement can be reached,
cases usually proceed as follows:
• An Application is issued
• Case Conference,
• Interim Proceedings: Motions for Interim Support,
Interim Custody, Interim Exclusive Possession of the matrimonial
home etc.
• Questioning on financial matters and other
issues
• Settlement Conference
• Pre-Trial Conference
• Trial Management Conference
• Trial
Even if a legal proceeding is commenced, at
all steps throughout the process, we will make all reasonable
efforts on your behalf to try to reach a fair settlement and
minimize the costs and uncertainty of going to court.
- If you are served with a court process, then Kain & Ball
will take all the necessary steps to effectively defend you
and assert your claims in the process
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