Family Law FAQ: Answers about Separations, Custody, Inheritance & More
If you are facing family legal issues, then you likely have questions. If that’s the case, then Fishman Beley Family Law Associates can help. On this page, find answers to some commonly asked questions about family law in Manitoba. For further information, peruse our links, or contact the lawyers at our Winnipeg firm.
When does child support end?
DO I HAVE TO SUPPORT MY SPOUSE/PARTNER'S CHILD OF ANOTHER UNION, EVEN AFTER THE SEPARATION?
If you stood "in the place of a parent," or in loco parentis, as it used to be called, during the relationship, then in most cases, you would be required to support the child after the separation even if you have severed the relationship. Your obligation will be secondary to the child's biological parent's obligation. See our Primer on Child Support for help with these concepts.
I RECEIVED AN INHERITANCE. WILL I HAVE TO SHARE IT ON SEPARATION?
No, if it was given to you alone, you have kept it separate, and you have not intermingled it with your other assets. Family assets acquired with the inheritance will be shareable. Go to the Primer on Family Property or the statute for more information.
WHAT IS THE COST OF AN "UNCONTESTED DIVORCE"?
A truly uncontested divorce for a resident of Manitoba, filing for a divorce in Winnipeg, will cost in the range of $1,000 to $1,500 to complete, inclusive of fees disbursements and GST. This range is based on our current hourly rates.
Other lawyers, with perhaps a different type of practice or experience may undertake to perform the service for less, or for more, or perhaps a fixed fee. Each case is different, however. There are almost always unperfected, or unanticipated, services required that the client has not thought about.
The ramifications of a divorce, particularly to the adults and children, require an individual approach. It's the lawyer's job to canvas the larger picture with the client, and to make sure the client has been informed of his or her rights and obligations. This process of helping the client to understand those rights and obligations, in the context of his or her own situation and the broad application of the law, is an important one. It may turn up rights or benefits not considered, clarify myths or incorrect assumptions, or may help to avoid future costly proceedings.
If it is a truly uncontested divorce, the cost will be at the bottom end of the range. What constitutes a "truly uncontested" divorce depends on your perspective. If there are children involved, there are often issues that need ongoing input and advice.
The client has an input into the cost of his or her divorce. We encourage our clients to do as much for themselves as they reasonably can, such as organizing their documents, working out their own financial statements or tracking down other information needed for their case. These efforts can have a dramatic effect in keeping fees low.
This is our stock answer as of January 2020. The forgoing is a rough estimation, not a guarantee or quote of a fee. Each case will require its own fee discussion and arrangements and, before a case will be accepted, both the lawyer and the client must agree.
MY PARTNER OWNED A HOUSE WHEN I MOVED IN. CAN SHE/HE SIMPLY KICK ME OUT ON SEPARATION?
The right to live in the home is an issue of exclusive occupancy, which the court will usually determine on “the balance of convenience," particularly considering whether there are children whose lives may be disrupted. The ownership of the house may be a relevant consideration on the question of occupancy, but the court may award sole occupancy to either partner/spouse.
If you have been living together for 3 years, you have homestead rights which means, subject to a court order, that you have the right to live there. Filing a Homestead Notice in the property registry will protect you from the owner trying to mortgage it or selling it without your consent. See our Primer on Property.
I AM GETTING SUPPORT UNDER THE GUIDELINES, BUT WHO PAYS FOR THE EXTRACURRICULAR COSTS OF RAISING THE KIDS, LIKE HOCKEY AND MUSIC LESSONS?
Section 7 of the Guidelines allows the court to require the non-custodial parent to contribute additional amounts for special or extraordinary expenses. While items such as child care to enable a parent to work are added on, the court will only consider "extraordinary expenses for extracurricular expenses". Extraordinary expenses are those beyond the means of the parent who is in receipt of child support. If that is not necessarily the case the court can look at other factors such as:
The relationship of the expense to the claimant’s income and child support
The nature and number of the educational programs and extracurricular activities
Any special needs and talents of the child or children
The overall cost of the programs and activities
Any other similar factor that the court considers relevant
The expenses must also meet the test of necessity and reasonability. Sometimes hockey and music lessons will be accepted and other times not.
DO I HAVE TO SHARE MY PENSION, EVEN THOUGH I STARTED WORKING YEARS BEFORE I GOT MARRIED?
As with other assets acquired prior to marriage or during separation, a pension which started to accrue before marriage is only shareable to the extent that it was earned during the marriage.
MY SPOUSE/PARTNER MAKES MONEY UNDER THE TABLE. HOW CAN I GET CHILD SUPPORT, IF IT'S BASED ON HIS INCOME?
The court can "impute" income if it is of the view that the regular sources of evidence such as income tax returns and paystubs are not giving a true picture. The court still requires proof that the money is being made. Mere suspicion is not enough. It may also impute income in situations where the spouse is under-employed or otherwise diverting income. See our Child Support Primer for more information about the imputation of income.
CAN MY SPOUSE/PARTNER STOP ME FROM FINDING OUT WHAT'S GOING ON AT OUR CHILD’S SCHOOL?
In Manitoba all parents have the right to information about the children, whether they are in that parent's custody or not, unless the court orders otherwise. This will include access to medical, health and school information, for example. It does not include the right, however, to create information. Many separated parents for example will have separate parent teacher conferences and will arrange with the school for individual mailings of school notices. The court has the power to prevent a parent from obtaining information from third parties. This would require proof that it is contrary to the child's best interests.
CAN I GET RETROACTIVE CHILD SUPPORT IF THERE HAS BEEN A CHANGE IN THE OTHER PARENT'S INCOME THAT I DIDN'T KNOW ABOUT?
The Supreme Court of Canada has ruled on 4 cases from Alberta that child support is the "right of the child" and that the payor who knows his/her income has a duty to provide the correct amount of support for the child, an obligation that they have held generally will go back up to 3 years. If the payor has been guilty of "blameworthy conduct", such as failing to provide financial information pursuant to an order or demand or providing misleading or false information, then the court can go beyond that 3-year guideline. See our Child Support Primer.
HOW LONG DO WE HAVE TO LIVE TOGETHER FOR ME TO HAVE THE RIGHTS TO SUPPORT OR A PROPERTY SETTLEMENT?
If you live together for a year and have a child, you can get child support and partner support. If you live together for 3 years, whether or not you have a child, all remedies, child and partner support, and sharing and equalization of property are available to you.
You can register your relationship with Vital Statistics, and all rights will apply immediately.
HOW MUCH SPOUSAL OR COMMON-LAW PARTNER SUPPORT WILL I GET?
WHO GETS THE CANADA CHILD TAX BENEFIT WHEN WE SEPARATE IF WE HAVE EQUAL SHARED CUSTODY?
Canada Revenue Agency will pay the amount to the primary care parent typically, but where the parties have equal shared care, the benefit will be split. It is important to notify CRA quickly as they will claw back overpayments. See our Child Support Primer.
WHEN DOES CHILD SUPPORT END?
Child support ends when the child is over 18 and no longer dependent on their parents. Dependency can continue past the age of 18 where, for example, the child is continuing in school or training on a full-time basis. While there is no upper age limit, once the child reaches the age of 24 the presumption in Manitoba is that support will terminate unless the court specifically orders otherwise.