Family Law

Uncontested Divorce  

D. Ian Kilgour has three decades of experience in acting on behalf of clients in divorce matters.  As an experienced lawyer, Ian can correctly prepare the documents for filing and service.  Mistakes in preparation of the Application can result in lengthy delays.  In the past he has had to take over “simple” divorce matters that clients thought that they could do on their won.  The cost of fixing mistakes usually exceeds what the cost would have been to retain Mr. Kilgour in the first place.  
D. Ian Kilgour will also be able to advise you whether or not it is appropriate for you to apply for an uncontested divorce. The Divorce Act requires that a Justice considering an Application for Divorce refuse to grant the divorce until any children of the marriage are properly provided for, taking into account the provisions of the Child Support Guidelines.  If there are children of the marriage and there is no formal and enforceable agreement or order for child support, and no explanation is provided, you will not be able to obtain your divorce.  Therefore you should contact Ian to provide you with the benefit of his experience, to ensure that your Application and Affidavit will provide the proper information for a Justice to grant your divorce order.
Prior to preparing your Application for Divorce, Ian will also review other matters with you to ensure that your financial interests are protected.  Many clients are not aware that they are likely entitled to a valuable share of their spouse’s pension or that they would no longer be able to be included in their spouse’s extended health benefits upon divorce. He will review all issues with you to ensure that your interests are protected.

Separation Agreements

D. Ian Kilgour has used his knowledge and experience to negotiate many separation agreements. The advantage of hiring him to act on your behalf is that he is able to advise you what the courts of Canada and Ontario would likely decide should negotiations fail and the matter proceeds to litigation. His experience will assist in advising you whether your spouse has made a reasonable proposal and will assist you in making a reasonable proposal tailored to the situation and requirements of your family, keeping in mind the common law and provisions of the Divorce Act, Family Law Act, Children’s Law Reform Act, and the Child Support Guidelines.

It is also important that experienced counsel be consulted before any settlement proposal is made or accepted to ensure that it is fair and that your rights and the rights of your children are protected. One danger in failing to properly prepare a separation agreement is that a Justice may refuse to grant a divorce if he or she perceives the agreement to be unfair to the children or the parties to the agreement. Further, by signing an agreement without legal advice, you may find that you have permanently waived rights for yourself or your children without your knowledge.

Custody &  Access

The Supreme Court of Canada has ruled that when considering issues of custody and access to children the issue the court has to determine is the “best interests of the child”. Further, in discussing access to children, the courts are not interested in “parents’ rights”. They are concerned with the rights of the child and a child’s right to have a relationship with both parents. D. Ian Kilgour has the experience and knowledge to argue for your children’s best interests. Every child and every family is different and he will fight for your children’s rights to have a custody or access order in their best interests.

Child Support

Child Support is governed in Canada by the Child Support Guidelines. Child Support is determined by the income of the payor parent. In addition there may be “extraordinary expenses” added on to the Child Support Guideline amount. The most common extraordinary expense is day care. Extraordinary expenses are substantial expenses for daycare, dental/medical, education expenses, or extracurricular expenses for sports or the arts. The court does have discretion in awarding extraordinary expenses and an experienced lawyer like D. Ian Kilgour can best present your argument in court or negotiations. Child Support greater or lesser than the Child Support Guidelines can be ordered in circumstances where the children spend at least 40% of the time with the payor parent or when the payor would suffer financial hardship. The circumstances where a court would allow a reduction for financial hardship are very limited so it is important that you consult Ian when making or responding to a claim for financial hardship. The courts have determined that support is the right of the child and cannot be waived or reduced by the parents unless the Child Support Guidelines are considered.

Division of Jointly Owned Real Estate

When real estate is jointly owned the default position of the courts is that either party has the right to ask the court that the property be divided and that that the net proceeds be divided equally between the joint owners. This is known as “Partition and Sale”. There are situations where a court will order an unequal division where it can be shown that one owner contributed substantially more to the equity in the property, especially where the funds came from an inheritance, personal injury settlement, gift from family member, or from assets from a previous marriage. It is important that joint owners consult with D. Ian Kilgour to determine their rights to the proceeds of jointly owned property.

Division of Matrimonial Property

Each province has its own method of dividing matrimonial assets. It is a common misconception that matrimonial property is just divided 50/50 upon marriage breakdown. In Ontario the division is referred to as an “Equalization of Net Family Property”. The Family Law Act has a formula that takes into account assets and debts both on the date of marriage and the date of separation (valuation date). In addition certain assets are excluded from the calculation including inheritance and gifts. The matrimonial home is dealt with as a separate category and its full value can be considered even if it was owned by one spouse prior to the date of marriage. The court can order an unequal division if an equal division would be “unconscionable” but the Ontario Court of Appeal has ruled that unequal divisions should only be ordered in rare circumstances. Contact D. Ian Kilgour to determine your rights and obligations under the Family Law Act.

Division of Property For Common Law Couples

In Manitoba and British Columbia there is statutory provision for division of assets for co-habiting couples. In Ontario the division of assets of common law couples is more complicated and is largely determined by what each spouse contributed to the accumulation of the family assets. The contribution can be non-monetary if it assisted the other spouse in the accumulation of assets. Contact D. Ian Kilgour to obtain advice on the division of assets for unmarried spouses.

Division of Pensions

In Ontario the division of pensions for married spouses is guided by a formula in the Pension Benefits Act. Your pension provider will determine the value of your pension from the date of marriage to the date of separation. Before agreeing to any settlement, court order, or separation agreement it is important that you contact D. Ian Kilgour to determine your obligations or entitlement to pension division.

Spousal Support

Unlike child support, there are no mandatory guidelines for spousal support. However in recent years spousal support guidelines have been developed to provide the court with assistance. The Divorce Act and Family Law Act of Ontario have a list of considerations that the court should take into account in determining spousal support from married and common-law couples. They include the length of the relationship, the need for support, the disparity in incomes, the role that either party played in caring for children, and the ability of the lower earning spouse to become self-sufficient. Spousal support does not automatically cease if the recipient spouse remarries or enters into a common law relationship. Further, a spouse is not barred from seeking spousal support solely because they have committed adultery. Unmarried spouses may also qualify for spousal support if they have cohabited for a continuous period of three years have had a child together. Contact D. Ian Kilgour to discuss spousal support obligations or entitlement.

Child Protection

When a Children’s Aid Society (CAS) contacts you about your children it is extremely important that you contact D. Ian Kilgour immediately. Your first meeting with CAS could determine whether they close their file or apprehend your children. They have immense authority if they feel that your children are in need of protection and the assistance of experienced counsel is vital to help in satisfying their concerns. If your children are apprehended by CAS, and you are served with a Notice of Application and Notice of Motion, contact Mr. Kilgour immediately. You do have the right to respond to the CAS allegations and present your own evidence to the court. The CAS does have immense authority, but in the end they have to justify their actions to a judge. However, if you do not prepare your Answer/Plan of Care and Affidavit, the judge will only have CAS’ side of the story to consider and may make a temporary order without consideration of your version of the facts or the availability of other family members to care for your children on a temporary basis. Do not delay. Call Ian right away.

Variation Applications

Normally agreements or court orders regarding property matters are final. Support, custody, access, and custody orders and agreements can be varied if there is a “material change in circumstances”. Over the years, situations change and the law does provide the flexibility to deal with those changes. Child support can be increased or decreased if the payor has a raise or decrease in income. Daycare expenses can be ended when a child attends school full time. Spousal support can change if the recipient remarries or has an increase in income. Custody and Access orders frequently change to take into account the children’s activities, interests, and maturity. Court orders and Agreements can be changed by consent or by a Motion to Change. For child support payors it is important that they do not unilaterally stop paying support when a child finishes school or turns 18 years old. You may receive a notice from the Family Responsibility Office that your driver’s licence is going to be suspended or you may lose your income tax refund if you have not properly dealt with the issue of terminating support. If you receive such a Notice, call D. Ian Kilgour right away in order to prevent a passport or driver’s licence suspension.

Mediation

There is a growing trend in family law to attempt to mediate disputes. Mediation can help resolve issues that would take longer to resolve in a very busy court system. There are options in Ontario for limited free mediation services and in addition there are professional mediators who can be hired by the parties. Many people are of the mistaken impression that mediation is an alternative to hiring lawyers. Counsel have a very important role to play in mediation. For mediation to be successful, the parties must be aware of their rights and responsibilities and the relative strengths and weaknesses of their positions. D. Ian Kilgour has the experience and knowledge to be able to advise you before and during the mediation process in order that you can come to an agreement that is in your best interests and in the best interests of your children.