Are you going through a separation, divorce, or custody dispute? If so, you’ve probably heard conflicting legal advice, often from well-meaning friends or online forums. Unfortunately, misinformation is common and can lead to poor decisions that affect your children, finances, and future.

In this post, we will debunk 7 of the most common myths and explain what the law says.

 

Myth #1: “Children get to choose which parent they live with.”

Truth: A child’s preference is only one factor considered by the court.

While older children may be heard through Voice of the Child reports or Office of the Children’s Lawyer assessments, the court makes final decisions based on the overall best interests of the child, including emotional security, sibling relationships, and the parenting plan.

 

Myth #2: “You have to go to court to resolve a family law dispute.”

Truth: Many family matters in Ontario are resolved outside of court.

Mediation, arbitration, and collaborative family law may be an appropriate route to take. These options are faster, more cost-effective, and less stressful, especially when children are involved. Trial is often a last resort.

 

Myth #3: “If I quit my job, I won’t have to pay child/spousal support.”

Truth: You are generally still obligated to pay child support even if you quit your job and are no longer earning an income.

While unemployment is a material change in circumstances to seek a variation in the amount of support payable, it does not automatically eliminate your responsibility. Courts can impute income to you based on your earning capacity and potential, especially if they believe you are intentionally unemployed or underemployed.

 

Myth #4: “Everything is split 50/50 in a divorce.”

Truth: Divorce involves equalization of net family property, not a literal 50/50 split of every asset.

Certain assets are excluded from the equalization calculation, including:

  • Inheritances received during the marriage unless it’s related to the matrimonial home;
  • Certain gifts from third parties; and
  • Pre-marital assets (with some exceptions)

Myth #5: “The house goes to whoever paid for it.”

Truth: The matrimonial home has special legal protections.

Even if one spouse paid for the home or holds the title, both married spouses have an equal right to possession and to share in the value of the matrimonial home during divorce, albeit not always equally. You cannot sell or refinance it without the other spouse’s consent.

Myth #6: “Common-law couples have the same rights as married couples.”

Truth: They don’t, especially when it comes to property division.

In Ontario, common-law couples do not have the same property rights as married couples. While common-law partners may be entitled to spousal support and child support, they do not automatically have rights to share the value of property unless they can prove a constructive trust or unjust enrichment. Married couples, on the other hand, are entitled to equalization of net family property.

Myth #7: “Mothers always get custody of the children.”

Truth: Maternal and Paternal roles are not a deciding factor.

Courts prioritize the best interests of the child, not the parent’s role, and now use terms like “decision-making responsibility” and “parenting time” instead of “custody.” Fathers and mothers have equal opportunity to seek decision-making power and parenting time. The outcome depends on factors such as parenting history, the child’s needs, and the ability of each parent to care for the child.

Get Legal Advice from a Trusted Family Law Firm

Don’t rely on legal myths when making life-changing decisions. Whether you’re dealing with child custody, property division, spousal support, or separation agreements, our Ottawa family lawyers are here to help.