Family Law

When a spousal relationship ends, there are laws that apply with respect to child support, child custody and access, the division of family property and spousal support. Which law applies depends on whether you were married or in a common law relationship, and in the property context, the outcomes can be quite different.

What are my rights and obligations with respect to my children?

What are my rights and obligations with respect to decision-making (custody) and parenting time (access)?

When you are splitting up, the law requires that you put your children’s needs and interests first. Details about how decisions are made for your children and where your children will live should be worked out in a practical way that’s best for your children.

The terminology used in these discussions will differ depending on whether you are divorcing or separating. Although the concepts are the same, if you are divorcing, a court will inquire about “decision-making responsibility” and “parenting time”. If you are separating, a court will be concerned with “custody” and “access”. 

Decision-making responsibility or custody means that you have the legal obligations to support your child, to meet their needs for shelter, clothing, food and medical care, and to provide for their education, supervision and discipline. You have the right to support your child physically and emotionally, to choose where your child will live, to decide what religion they will be taught, to make medical decisions on their behalf, to choose the school they go to, and to discipline them. These rights and responsibilities can rest with one parent or with both parents. The arrangement may vary between children.

If there is no custody agreement in place, you must not take your child away from the home or the other parent without the consent of the other parent, unless that is required for immediate safety reasons.

Parenting time or access is the time that a child physically spends with a parent. It is a right of the child, not of the parent, and the law recognizes that children deserve generous contact with each parent unless that is not in their best interests. As a parent with access, you typically have the right to information about the health and education of your child, even if you do not make the decisions about those things. 

You and the other parent should put any agreement about decision-making responsibility and parenting time (or custody and access) into writing. You may want to ask a judge to make the agreement into a court order. If you and the other parent cannot agree, you will have to go to court and have a judge make an order.

The Family Law Information Centre and its mediation program can help you with agreements and court forms.

What rights and obligations do I have regarding child support?

All parents have a legal obligation to financially support their children until they reach the age of majority, which is 19 in the Yukon. The obligation may continue if your child has a disability or illness or is attending university or college.

The right to child support is the right of the child, although practically the money is paid to the other parent. To the extent possible, a child has the right to the same standard of living they had when their parents were together.

A parent who has a child more than 60% of the time is entitled to receive child support from the other parent. When a child lives with each parent roughly half the time (anything between 40% and 60%), if the incomes of those parents are quite different, the higher-income parent will have to make payments to the lower-income parent in order to ensure that the child has a similar standard of living in each household.

The amount of child support you have to pay is determined with reference to detailed tables created by the federal government (the Child Support Guidelines). These tables are incorporated into Yukon law, so the amount of child support a child is entitled to is the same regardless of whether the parents were married or not.

Does it make a difference to parenting and child support if I am married versus in a common-law relationship?

If you are married, your rights and obligations are set out in the federal Divorce Act, whereas if you were in a common law relationship, the Yukon Children’s Law Act and Family Property and Support Act apply. While some of the terminology is different between federal and Yukon legislation, the rights and obligations with respect to child support and custody and access are substantively the same whether you are married or common-law.

Will I need to go to court to resolve parenting and child support arrangements?

No. A separating couple can agree to how they will structure their time with and responsibility for their children and negotiate with respect to child support. If you need help having these conversations, you could work with a mediator on the details. It is a very good idea to speak to a lawyer first so that you understand your rights and obligations. It is also a very good idea to have a lawyer review any agreement(s) that you reach.

Once you reach an agreement, you can file it with the court as a “consent order” so that it has the authority of a court order. A judge can refuse to issue a consent order about child support if it differs from guidelines that have been established by legislation and, in the court’s view, does not make reasonable arrangements for the support of the child.

There is a free family mediation service available through the Yukon Government. As well, if you do go to court, you will be asked about participating in mediation through a judicial settlement conference.

How is our property divided and do I have other rights and obligations with respect to my spouse? 

How is our property divided?

Your entitlement to property when leaving a relationship depends on if you are married or common-law.

Subject to a court making a different order, each married spouse is generally entitled to 50% of the family possessions and belongings owned at the time of marriage breakdown – it usually doesn’t matter who bought the item, whose name it is in, or whether it was bought before you got married. The same often applies to bank accounts and registered savings accounts and pensions. There are specific rules about the family home. For example, each spouse has a right to live in the family home after separation, although you can agree only one of you will stay there.

In contrast, there is no entitlement to 50% of family property when a common-law couple splits up. The general rule is that whoever bought the asset owns it. This rule is subject to other legal principles that would allow one spouse to claim a share in property on the basis that they contributed to it in some way, such as through their labour. To become entitled to property on this basis, you will need an agreement or a court order.

Whether you are married or common-law, you can make a legally binding agreement about how your property will be divided. You can do this either before or during your marriage or co-habitation or afterwards when you separate.

Do I have rights or obligations with respect to spousal support?

There is not always an obligation to pay spousal support. The spouse claiming it must demonstrate that they are entitled to receive it. Spousal support can be needs-based or compensatory, or sometimes it can be based on a prior agreement between the parties.

Financial need may reflect the illness or disability of a spouse or it may just reflect the interdependence of spouses after a long marriage. Compensatory support usually comes up when one spouse has been economically disadvantaged by the family relationship. This happens, for example, when one spouse gives up work and education opportunities to assume more family responsibilities.

The general law around spousal support is the same regardless of whether the spouses are married or in a long-term common-law relationship. The types of considerations a court will make are set out in section 34 of the Family Property and Support Act.

As with property division, you can make an agreement about spousal support. If you want, you can have the agreement approved by a judge and entered as a court order. If you cannot agree, you can make an application to the court.

Does it make a difference to property and spousal support if I am married versus in a common-law relationship?

If you are married, any rights and obligations with respect to spousal support are set out in the federal Divorce Act, whereas if you were in a common law relationship, the Family Property and Support Act applies. The Yukon legislation is more detailed in listing the factors a court will consider in awarding spousal support, but in practice the considerations are similar for couples that are divorcing.

In contrast, the division of property is very different for married versus common-law spouses. While married couples split their family property equally in a divorce, each person in a common-law relationship keeps their own assets, subject to the court making an order that divides property differently. This requires a court application.

Will I need to go to court to resolve property and spousal support arrangements?

No. A separating couple can agree to how they will divide their property and whether spousal support will be paid. If you need help having these conversations, you could work with a mediator on the details. It is a very good idea to speak to a lawyer first so that you understand your rights and obligations. It is also a very good idea to have a lawyer review any agreement(s) you reach.

Once you reach an agreement, you can file it with the court as a “consent order” so that it has the authority of a court order.

There is a free family mediation service available through the Yukon Government. As well, if you do go to court, you will be asked about participating in mediation through a judicial settlement conference.

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