Family Law
Divorce Proceedings in Ontario
Family Law
Serving Families in Brampton, Mississauga & Toronto
Unfortunately, marriages you thought would last a lifetime might break down for various reasons. Divorce might be the only viable option if all other reconciliation options have failed. However, the legal process, especially in a contested divorce, can be long and complex, depending on the amount of assets, liabilities, and responsibilities the couple has accumulated in their life together. The matter is further complicated if there are children involved. Experienced divorce lawyers can help you untangle these issues and move on with your separate lives as soon as legally possible.
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What is separation ?
Separation refers to a phase in marriage where the couple has decided to live separately, either temporarily or permanently. This often involves signing a separation agreement outlining the terms and conditions that will govern this period of their life. This is important since they might be living in the same house during this period, and the unresolved problems in their marriage are still there. By doing it with an agreement stipulating the conditions, you are clearly setting out the responsibilities of each spouse when it comes to the children or financial obligations. Also, separation does not always lead to divorce. You may be able to work through the problems and reconcile after a period of separation.
It is worth noting here that the couple is still married until the Superior Court of Justice for the province grants a divorce order upon application for divorce. This also means that it is not possible for either of them to remarry until they are officially divorced. In fact, there are couples who opt for separation as a permanent arrangement for religious reasons or for the sake of their children. The separation agreement is considered a legally binding document as far as the child custody (decision making), access (parenting time), child support, spousal support and property division are concerned, but the couple is still legally married unless and until the court grants a divorce order. If they decide to finally move for divorce, their status of separation will be taken into consideration by the court in the granting of the divorce.
You need not be living in separate houses to be considered as living separately. The couple might continue to live in the same house for practical reasons. The term “separate and apart” mentioned in the Divorce Act does not necessarily refer to separate accommodation for the spouses. In fact, the Act allows cohabitation within the separation period for the couple to attempt a possible reconciliation not spanning more than 90 days. If this 90-day period is breached, the continuous period of 1 year of separation to qualify for the divorce will have to start from a new date.
Divorce
Divorce, on the other hand, refers to a situation where the couple has completely given up on the marriage and taken the legal steps to dissolve it. This is a permanent step that will allow the parties to move forward and remarry in the future. In fact, if the couple has already been living separately for a year, they would have already come to an understanding regarding their finances, child custody arrangements, property division, and payment of liabilities. A year of separation is an essential requirement in the case of a no-fault divorce.
In the case of a fault-based divorce, such a requirement of one year of living separately can be waived. This can be pursued in two cases:
Adultery
If one of the spouses has committed adultery or is found to be in a relationship with someone else, the other spouse is free to approach the court requesting a divorce without the separation period. However, you will have to prove the affair in court. The claim of adultery without evidence will be rejected by the court.
Cruelty
Cruelty from a spouse will be grounds for divorce regardless of the separation period. Cruelty can be physical, mental, or emotional in nature, but it is important that you prove this claim in court.
What are the different aspects covered in a separation agreement?
The separation agreement should clearly outline the arrangement of financial and personal matters between the couple during the period of their separation. This will include:
Who will stay in the matrimonial home
If feasible, the spouses may consider moving into separate homes. As mentioned above, the couple may continue to live in the same house and still meet the ‘separate and apart’ criteria mentioned in the Divorce Act.
Custody of the children and their expenses
The agreement should cover the custody of the children and mention who will pay for their living and educational expenses.
Division of assets and liabilities
The agreement should clearly mention how the assets and liabilities will be divided.
Spousal support
If one spouse requires financial support from the other, this should be clearly mentioned in the agreement and agreed to by both parties.
If both parties are on the same page in the event of a divorce, the separation agreement may be converted into the final divorce settlement agreement with the same terms and conditions.
Importance of the Date of Separation
It is worth mentioning here that the date of separation is legally significant when deciding on the finality of divorce and the spousal ownership of the property. If there is no agreement between the couple on the date of separation, this might affect the following.
Delay in submitting your divorce application
According to the Divorce Act, the couple is supposed to live separately for at least one year. If the couple cannot agree on the date of separation, then the divorce application will have to be delayed until both parties can confirm this duration of separation.
Ownership of assets
Each spouse has the right to a share of ownership of the other’s property during the marriage. After the separation, the other spouse is no longer entitled to the share of ownership, except in jointly owned properties.
Calculation of child or spousal support
Any pending child or spousal support payments are generally calculated from the date of separation.
How can a Divorce Lawyer help you?
Things will move smoothly in an uncontested or joint divorce since the partners are on the same page on most issues and want to move on with their lives amicably. However, in a contested divorce, you will need the guidance and support of a divorce lawyer to protect you and your family’s interests, especially the children. The custody of children, division of property, spousal support, and payment of loans and liabilities are all issues that could be fiercely contested in court. Having an experienced Family Lawyer by your side ensures effective representation of your position in court.
We can Help
If you are dealing with separation or divorce, contact our legal team today for tailored guidance. Our experienced divorce lawyers can help you safeguard your family’s rights and interests and simplify the process.
Simple Divorce
A simple divorce occurs when both parties mutually agree to part ways. The spouses discuss all aspects of their marriage and come to a mutually acceptable agreement. The terms and conditions regarding various issues, such as custody of the children, spousal support, and how the assets and liabilities are divided between the couple, will be discussed and agreed upon without going to court. These will be mentioned in an agreement signed by the parties. It is a quick and easy way to finalize your divorce when the couple has come to an amicable understanding of the path forward. For this reason, it is also known as the uncontested divorce.
Contested Divorce
As the name suggests, a contested divorce occurs when the spouses do not agree to one or many aspects of their separation. For example, disagreements could arise regarding the custody of the children, spousal support, division of the assets, and who will pay for the liabilities and loans. Contested divorces are very common in long-married couples with multiple children and properties, complicating the process. In such cases, the first option will be for the spouses and their divorce lawyers to come together to try and settle the matters through negotiations or mediation. You can reach an out-of-court settlement on the agreement this way. However, most contested divorces are often settled in courts.
Joint Divorce in Canada
Joint divorce refers to a divorce initiated by a couple together. If both spouses are in agreement on the divorce and all the claims associated with it, they can file for a joint divorce to speed things up. However, you still have to wait one year from the date of separation before starting the divorce proceedings. The duly filled joint divorce application must be submitted to the Ontario Superior Court of Justice. This can be done online as well. Various affidavits, forms, and documents have to be submitted along with the divorce application. For example, forms for child custody and spousal support must be submitted if these things are to be finalized. If everything is in order, the court might issue the final order of divorce within a few months.
Recognition of Foreign Divorces
If you have been divorced outside Canada, you have to make sure that your foreign divorce is recognized here before you can remarry. As per the Divorce Act, at least one of the spouses must be a resident of the country where the divorce was obtained. There is a process you must follow to get your foreign divorce recognized under Canadian law before you can apply for the license to remarry. You need to submit a request for authorization from the Registrar General in Ontario, along with a notarized copy of the divorce order issued by the foreign court. You also need to submit a legal opinion letter from a lawyer addressed to you and your new spouse confirming the validity of the foreign divorce. Your signed application for a marriage license and a statement of sole responsibility from you and your new spouse acknowledging that your marriage license does not supersede the decision of an Ontario court regarding the divorce must be submitted as well.
Frequently Asked Questions
Can I continue to stay in the matrimonial home during the separation?
Yes. Legally, both spouses are equally entitled to stay in the matrimonial home. If one of the spouses should move out, this must be settled through a separation agreement or a court order.
What to do if my spouse does not agree to the separation?
You can still proceed with the separation. However, in this case, legal disputes are likely to arise, requiring you to opt for negotiation, mediation, or intervention by the court to settle these matters. You will require the assistance of a family lawyer to handle this.
Is it possible to waive the one-year separation requirement for divorce?
Not in a no-fault divorce. However, it is possible to waive the requirement of one year if you are seeking an at-fault divorce in case of adultery or cruelty by the other spouse.
On what grounds can I initiate divorce in Canada?
According to the Divorce Act in Canada, you may file for a divorce on the following grounds:
⦁ Separation of at least one year in case of a no-fault divorce.
⦁ Adultery by the spouse, which must be proven in court.
⦁ Cruelty from the spouse, which can be physical, mental, or emotional.
How long will it take for a divorce to be finalized in Canada?
In the case of an uncontested divorce, where both parties have come to an agreement on most issues, the divorce is likely to be granted within 4 or 6 months. But, in a contested divorce, this is likely to take longer since the court has to decide on various issues like child or spousal support, child custody, and property division in the absence of a mutual agreement.
At what point will I be legally allowed to remarry?
Once the divorce order is finalized, you can legally remarry. This will be 31 days after the divorce is granted by the court.
How is child custody determined by the court?
In a contested divorce, the court will make the decision on child custody in the best interests of the child, taking into consideration various factors like the preference of the child (if the child is mature enough), the ability of the parent to take care of the child’s emotional and financial needs, minimizing any disruption to the child’s life, and any special needs of the child.
