Learn what a family lawyer does in Canada and how they handle divorce, parenting arrangements, and support cases under Canadian family law
It has always been the dream of a family to grow old together and survive any dispute that comes along the way. But when family matters get complicated and the family drama starts to build, separating may be the best choice. In such instances, turning to a family lawyer is vital.
In this article, we'll answer the question, "What does a family lawyer do?" We’ll explain the roles these legal professionals play for families who are going through tough times. We’ll also throw in some tips on how to find the best lawyer fit for your specific situation.
A family lawyer is a legal professional who helps family members with legal matters related to family law and other statutes. They also assist clients in other aspects of family life — from someone else’s birth to marriage and forming their own family, until their death and even beyond it.
While splitting married couples are the usual view of who the clients of family lawyers are, there are several legal matters that these lawyers can also be of service to. Below are just a few examples:
In other words, it’s not always when couples have or are already parting ways that family lawyers are needed. In some cases, preventing disputes among the families through legal methods, such as agreements and contracts, is a field of expertise of family lawyers.
Each province has its own statutes with regard to family law and its other incidences. This is because family matters are governed by provincial and territorial jurisdiction, and only some are governed by federal laws.
For one, divorce and separation are regulated by the federal Divorce Act, while all other aspects not covered by the Divorce Act are filled out by the appropriate provincial or territorial statute.
To give a better picture of how this works in a province, here’s a video that briefly explains the divorce process in Ontario and where a lawyer comes in:
For more information on what a family lawyer does, it’s good to hear straight from these legal professionals. Check out this directory of the best family lawyers in Canada as ranked by Lexpert, one of our sister publications. This easy-to-use tool can be filtered according to city and province.
Under Canadian family laws, there are agreements and contracts that couples may enter, whether before, during, or after their marriage. Here are some of these family-related documents:
marriage contract: also called a prenuptial agreement, this is a contract entered by married spouses, or those who want to marry; it sets out the rights and obligations of both parties during and after the marriage
cohabitation agreement: entered by those who are not married, but are living together in a conjugal relationship (or intend to); this lays down the rights and obligations of the couple during the cohabitation or after they separate
separation agreements: in case of a divorce or separation, either before or after a decree is acquired, the separating spouses will execute this document to agree on post-marriage arrangements, including support, division of common properties, and parenting agreements
Drafting and executing these documents would need the assistance of a family lawyer. Each serves different purposes, which must be drafted with the specific circumstances of the parties in mind. Also, the lawyers would know the important requisites as to form and content when executing these documents.
The most contentious part of family law, including what a family lawyer does, is helping a family (or at least one of the couples) get through a divorce and separation proceeding. When engaged by one of the divorcing spouses, their roles include:
Non-married couples in common-law unions who want to separate may also do so. This is called separation, which is largely governed by provincial or territorial laws. One common theme in separation is the execution of a separation agreement that is complete in all family matters related to the separating couple.
Getting the advice of a family lawyer is important at the first instance when one of the spouses wants to file for divorce. This is especially true when their marriage is considered a complex one, such as when:
There are a lot more factors that a family lawyer will need to know to aid their clients when it comes to divorce and separation.
Some provincial laws require or highly encourage couples to go through any of the methods of alternative dispute resolution (ADR), such as negotiation or mediation. This applies to separating couples, so that they can amicably settle most (or even all) aspects of the divorce or separation.
The goal of ADR is to prevent parties from litigating among themselves matters that can be easily (hopefully) resolved without the need of the court. This will save them the already scarce time and energy that these clients have. However, there are instances where divorce mediation or ADR may not be appropriate; for this reason, it’s important to consult a family lawyer.
To add, family lawyers can do various roles during any of the ADR processes:
When successful, a settlement, which can be in the form of a separation agreement, will be executed. For this, both the parties’ family lawyers can again guide them in drafting the final document that the parties will jointly sign.
Custody and support are another tough area when it comes to separation and divorce. Now called parenting arrangements or plans after the Divorce Act amendments, these set out how the child/ren will be taken care of after the separation. According to the federal government’s Parenting Plan Checklist, among the elements that a parenting arrangement or plan may include:
communications: what information should be shared to the other parent, how often should it be communicated, including the method of communication
parenting time arrangements: who shall primarily take care of the child/ren, who is in-charge of transporting the child/ren to and from anything, and other matters such as babysitting, the child/ren’s belongings, and social life
education: where shall the child/ren go to school at, who shall receive school documents, and who will attend parent-teacher conferences
health care: who shall decide matters related to medical care, such as caring for the child/ren when they’re sick, access to medical records, and medical expenses
As a policy, it’s always the best interests of the child that should prevail in a parenting arrangement or plan, among other things.
What family lawyers do when it comes to creating parenting arrangements is ensuring that:
As part of a divorce or a separation, calculating the amounts of child and spousal support is done usually before or during any of these processes. In arriving at a final amount, it’s important that the couple are represented by their own family lawyer, since their lawyers:
would know what guidelines to follow (whether federal or provincial)
can determine what factors should be considered (e.g., number of child/ren, which child/ren needs support, parenting time arrangement, which parent is the paying one or whether both would be the paying parents, etc.)
After agreeing on the amount of child and spousal support, enforcing it would be another matter. A family lawyer can again help clients with this. If problems are encountered in the future — such as a non-paying obligated parent — family lawyers are knowledgeable of the legal remedies to enforce the support order or agreement. Lawyers can also help families when mutually changing the terms of the order or agreement.
One thing that a family lawyer is great at is looking at the problem without those rose-colored glasses and all the emotional family drama. This comes in handy when the family’s property is being divided during the divorce or separation. Family lawyers can identify what laws apply to the property division or which properties should go to whom. They can also help their clients argue before the court regarding the property division during trial, including the proceedings during mediations or negotiations.
Canadian family lawyers are sought out not only when it comes to severing the ties of marriage between couples, but even before or after the whole thing. Here are some of the laws that family lawyers are skilled in:
Below is another video that explains family law in Canada, and when couples and children would need family lawyers:
Looking for family lawyers near your area? You can also use this page from Lexpert of the Largest Firms in Canada, which is also available per province.
There are a lot of factors that come to mind when choosing the right family lawyer. While it all depends largely on your case, the family lawyer’s expertise will also matter. The following can be your guide when choosing a family lawyer:
Although there’s no fixed standard on choosing the right lawyer, it may be a good thing to consult with at least two lawyers, just to see which one you’re most comfortable with.
Getting the services of a family lawyer will depend on several factors. Aside from the complexity of the case, the total costs of hiring a family lawyer may be based on:
Family troubles do come and go; however, there are those that burden the family for too much and too long, that couples going separate ways may be the best thing to do. In these instances, it’s important that each spouse is guided by their own family lawyer. This does not only ensure that their rights are protected, and their obligations are clearly set, but also to have a peaceful process all throughout.
Interested in learning more about what a family lawyer does? You can also reach out to the best family law firms in Canada as ranked by Lexpert.
