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Q: How do I get a divorce? Do I have to be separated first?A:
It depends on your situation and your reason for getting a divorce. If you are the victim of either adultery or cruelty (i.e. intense physical and emotional abuse which has rendered continued cohabitation intolerable) then it may be possible for you to obtain a divorce instantly. However, these two grounds are difficult to prove and require convincing circumstantial evidence.
If instead the only reason fuelling your desire to obtain a divorce is because you and your spouse no longer love each other, or do not get along, then there is a mandatory one year separation period that must be satisfied. Also, you should be aware of what constitutes separation for the purposes of divorce because it is possible for you and your spouse to live in the same house and yet be considered to be living separate and apart for the purposes of the Divorce Act.
Q: I am thinking about leaving my spouse. What should I do to protect myself and my children?A:
Your situation will dictate the course of action that you should take. The first thing to do regardless of your situation would be to seek legal advice.
If your spouse is abusive or there is a threat of violence against you and your children then you should get a restraining order against your spouse. Moreover, simultaneous to the restraining order you should bring an urgent application for interim custody of the children, potentially even interim support for the children (and yourself if you are a dependent spouse) and exclusive possession of the matrimonial home.
However, you should be aware of the fact that the test for exclusive possession of the home is very stringent and will only be awarded in certain circumstances where it is absolutely necessary because the courts are reluctant to kick an individual out of his or her abode. The test may be found under s.24(3) of the Family Law Act, R.S.O. 1990, c. F.3 and the courts will usually consider the following criteria:
- the best interests of the children affected;
- any existing orders relating to family property and any existing support orders;
- the financial position of both spouses;
- any written agreement between the parties;
- the availability of other suitable and affordable accommodation; and
- any violence committed by a spouse against the other spouse or the children.
If on the other hand there is no abuse or threat of violence against you and your children then you should begin collecting and copying any information relevant to your financial position as potential division of property, equalization, support and/or custody issues may ensue.
You may also begin dividing your assets unilaterally, such as withdrawing from joint bank accounts, severing joint tenancies, etc. You may also want to bring applications for interim orders for custody and support if necessary.
Another thing that should be done if it is necessary, and you are worried that your spouse may begin improvidently depleting his or her assets so to lower his or her net family property, is to bring an application under s. 5(3) of the Family Law Act for an equalization payment.
Q: How much does a divorce cost?A:
This question has multiple answers and depends primarily on whether or not you decide to retain to counsel (at which point your fees will increase) as well as whether or not the divorce is contested or uncontested (a contested divorce will also result in an increase in fees).
The following is a fee breakdown for a simple and uncontested divorce, not including lawyer’s fees (as of August 2010):
- The fee for issuing an application is $157.00.
- A $10.00 search registry fee.
- A $64.20 fee for service (by a process server).
- The fee for a motion for judgment is $280.00.
- A $53.50 fee is charged by the court clerk for filing attendances and HST
- A certificate of divorce will cost approximately $19.00. (You should be aware that this final fee may be waived because it is not necessary that you obtain a certificate after an order has been made. If you eventually plan on re-marrying then you will need to pay the fee and obtain a certificate as it will provide conclusive proof of the validity of your divorce.)
The total of all the above fees, for a divorce in the Province of Ontario, is $583.70 (not including lawyers’ fees).
Q: How long does the divorce process take?A:
The length of the divorce process varies depending on your circumstances.
If you are grounding your application on claims of adultery or cruelty and the court is satisfied that those grounds do exist then it may grant the divorce immediately and invoke the s. 12(2) special circumstances waiving the requirement that the divorce take effect 31 days after the order has been made.
Or, if the ground is simply one year separation then you must wait the requisite one year before the divorce is granted and then an additional 31 days for it to take effect. Unless, of course, there are s.12(2) special circumstances allowing you to waive the 31 day requirement.
Q: Do I have to have a lawyer to get a divorce?A:
You do not have to get a lawyer to obtain a divorce especially if the divorce is uncontested and there are no complexities involved with the division of property, custody and access or support.
All that you will need to do is fill out and file the proper forms with the court and then wait for your divorce to be granted.
Even if the divorce is contested you still do not need to have a lawyer. It is not an essential requirement; it does however facilitate the process as lawyers are experienced and able to deal with issues more efficiently and effectively than would a lay person who lacks the requisite knowledge and understanding of the law.
Lawyers have greater access to resources and are retained specifically for the purpose of ensuring that your legal rights are considered and protected at all times. Moreover, a lawyer will be able to identify (and rectify) unfair situations which could result in a potential unequal division of assets or an agreement to a lower amount of support.
It is also possible that lawyers may be able to resolve your separation and/or divorce in a more time-efficient manner. This is crucial because finalizing a separation and/or divorce quickly and properly the first time will grant you the ability to move on with your life and regain your independence.
Lastly, lawyers are incredibly helpful in that they are capable of identifying issues stemming from a divorce (which a layperson might not contemplate) that could potentially affect your rights. Some examples are:
- Your rights with regards to possession of the matrimonial home once a divorce order is granted. If you are not the legal or joint title holder to the matrimonial home then once a valid divorce order is obtained, any rights you once possessed are lost. Therefore, your spouse could very well evict you, without any notice, leaving you potentially homeless.
- The potential loss of benefits offered by your spouse’s place of employment upon divorce. If your spouse has been providing you with medical, dental and other benefits then it is very likely that your entitlement will be lost once you are divorced and consequently alternative arrangements may have to be made.
- The statutorily imposed limitation periods for claiming an equalization payment are greatly reduced from 6 years when separated to 2 years when divorced. Unless you are knowledgeable in this area of the law, you may easily overlook that detail.
- That obtaining a divorce order from a foreign jurisdiction will result in the inability to apply for and receive any corollary relief orders within your jurisdiction. For example a valid divorce order from the United States of America will be recognized and enforceable in Canada, however, you will not be able to claim for support under any of the Canadian legislation. Your only recourse will be to bring applications and make claims under the legislation of the jurisdiction in which your divorce was granted.
Q: I live in the same house as my spouse. Can I still be considered separated?A:
Yes, if you are living in the same house as your spouse yet there is no prospect of reconciliation and you satisfy the following factors then you will still be considered to be separated for the purposes of the Act.
- There must be a physical separation. Living in the same house does not negate physical separation especially if the spouse is remaining there due to economic necessity.
- There must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship.
- The absence of sexual relations is not conclusive but is a factor to be considered.
- The discussion of family problems and communication between the spouses
- Presence or absence of joint social activities.
- The meal pattern.
- Although the performance of household tasks is also a factor, weight should be given to those matters which are peculiar to the husband and wife relationship.
- The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent. An additional consideration in determining the true intent of a spouse as opposed to that spouse’s stated intentions is whether the spouse has filed income tax returns as “separated” or “married”.
Q: Can I still get a divorce if my child custody or support has not been settled?A:
One of the statutory bars to divorce is the lack of proper reasonable arrangements for the care of the children. The court will be very reluctant to order a divorce where the parties have not yet determined support or devised a parenting plan as this would be contrary to the child’s best interests.
What the court will do is adjourn the proceedings to give the parties time to make reasonable arrangements for the care of the children. It is a discretionary bar and so the court will not order the divorce unless and until it is satisfied that those arrangements have been made and that they will be adhered to.
Q: What is an uncontested divorce?A:
An uncontested divorce is when the parties have nothing to “fight” over or negotiate as all the corollary issues have been dealt with by the parties already.
All that is desired by them is to obtain a divorce as quickly and easily as possible and the ground for divorce is usually based on one year separation.
Q: What’s the difference between contested and uncontested divorce and what’s the duration?A:
If you are thinking about getting a divorce, you may be wondering about the difference between a contested and uncontested divorce, and how this effects the duration of the process.
A divorce application may be initiated under rule 36 of the Family Law Rules (a regulation to the Courts of Justice Act). Either spouse may start a divorce by filing an application naming their spouse as a “respondent” or by filing a joint application with no respondent (rule 36(1)). In a joint application, the divorce and any other order sought will be made only with the consent of both spouses. A joint divorce is not the same as an uncontested divorce, as neither party is suing the other for a divorce. A joint divorce is essentially both spouses notifying the court that they want a divorce.
An uncontested divorce is one where the spouses agree on all the issues raised by the divorce. Where spouses agree on the issues, court officials will generally process the divorce without requiring the spouses to appear in court. Note, however, that you cannot file an “uncontested divorce;” rather, the divorce becomes uncontested after the spouse has been served and decides not to respond by filing an Answer within the required period of time. The failure to file an Answer makes the divorce uncontested.
In uncontested divorce proceedings, the applicant will file an application for divorce with the Ontario Superior Court of Justice. A copy of the application must also be served on the respondent (the applicant’s spouse). The served spouse then has 30 days (or 60 if outside Canada/USA) to file an “Answer” if he/she wants to contest the divorce. Where an answer is not filed, the court assumes that the respondent does not contest the divorce. The applicant must then file an Affidavit of Service (swearing that the respondent was served), an Affidavit for Divorce and all supporting materials.
Under rule 36(5), where the only relief claimed is a divorce, or where a divorce has been split from the rest of the case and a respondent has not filed an Answer, the divorce will initially proceed on affidavit evidence alone, without an oral hearing. Under subsection 36(7), the clerk will send the records and the affidavit material to a judge in chambers. Once the divorce is granted, the court will mail the divorce order to each spouse. On request of either party, a divorce certificate may be issued. This will be required if either spouse is intending to remarry.
A contested divorce, on the other hand, is one where the spouses disagree on some or all of the issues raised by the divorce. Some of the most common disagreements in divorce proceedings are over the children’s residential schedule, child and spousal support, and division of the financial gains of the marriage. In a contested divorce, both parties must file court documents setting out their positions on the issues in dispute.
Case management is a process that gives parties in dispute scheduled opportunities to discuss the case in order to streamline proceedings. The goal of case management is to encourage settlement as early as possible, saving both parties’ time and money. Often some, if not all, of the issues will be resolved in settlement conferences prior to the hearing. A case may be settled at any time during the divorce proceedings, even after the submission of court documents, and approximately 95% of cases are settled before trial.
A contested divorce is usually much more drawn out than an uncontested divorce; the duration of the proceedings will depend on if and when the case settles. If settlement is not reached prior to trial, a judge will make a final order on the issues in dispute and grant a divorce. The divorce order normally becomes final 31 days after being granted.
Q: How do I determine if my divorce is final?A:
Divorce can be a complicated process, and you may wonder if, in fact, your divorce has been finalized.
In Ontario, a divorce is finalized once a judge has granted a divorce order. A divorce is obtained through an application, either made unilaterally or jointly with your spouse. A divorce application brought by only one spouse may be either contested or uncontested.
It is not necessary to obtain a divorce certificate in order for your divorce to be finalized.
As mentioned above, a divorce is finalized once a judge has granted the divorce order. Once an application is initiated under rule 36 of the Family Law Rules and all necessary affidavits and supporting documentation have been sent to the court, a judge will review the documentation and either:
- grant the divorce;
- have the clerk return the documents so that corrections can be made; or
- grant the divorce but make changes to the draft order.
It is only necessary to obtain a divorce certificate if you plan to remarry.
Once the divorce has taken effect (generally, 31 days after the issuance of the divorce order), a court may issue a divorce certificate on the request of either party to the divorce.
The court will first verify that no appeal has been taken from the divorce order and that no order has been made extending the time for an appeal.
Q: I have never been married, but have lived common-law for years. We want to separate. Do we need a divorce, too?A:
No, divorces are only necessary for spouses who satisfy the s.2(1) definition. That section states that spouses are two persons who are married to each other.
Therefore, only spouses who are married to one another are eligible or may need to obtain a divorce judgment from the court.
Q: I received a divorce application from my spouse. What do I do now?A:
The first thing that you should probably do is seek legal advice to make you aware of the process, limitation periods involved and effects of divorce.
Next, you should provide an answer which should be filed in court and served on your spouse. It would also be wise to gather any and all relevant financial information/statements for when the time comes to resolve any corollary issues that may arise.
Q: Do I have to go to court to get a divorce, or can it be settled out of court?A:
Yes. In order for a divorce to be valid you must submit an application to the court and obtain a divorce judgment there from.
Q: How can I get an annulment?A:
An annulment results from some defect or disability which exists at the time of the marriage ceremony and prevents a marriage from coming into existence. You must apply to the court for an annulment and show that there was a defect in either the formal or essential validity of the marriage.
Formal Validity of the Marriage
The formal validity refers to a legal defect in the marriage ceremony. Individuals wanting to marry must refer to and comply with the provincial rules regarding formalities of ceremony. Some defects that could invalidate a marriage are:
- Defective publication of banns.
- The person who solemnized the marriage is not authorized to do so.
- An irregularity in issuing the license.
Essential Validity of the Marriage
A defect in the essential validity of the marriage refers to an issue related to the capacity of one of the spouses. The defect complained of may take any of the following forms:
- inability to consummate the marriage – renders the marriage voidable because unless and until one of the parties applies for an annulment there is a valid and subsisting marriage
within the prohibited degrees of consanguinity of affinity
- see: s.2 and s.4 of the Marriages (Prohibited Degrees) Act, R.S.C. 1990, c. 46
- if 2 persons are related lineally, or as brother and sister or half-brother and half-sister, including adoption then they cannot marry each other
- prior existing marriage
lack of consent due to:
- mental incapacity duress
- limited purpose marriage
Q: What if my spouse doesn’t want a divorce?A:
Whether or not your spouse wants a divorce will not affect your ability to obtain one if that is what you want.
Unless there is adultery or cruelty involved then a one-year separation period is all that is required to become eligible for a divorce. You can separate from your spouse, and make the decision to live separate and apart for the purposes of divorce unilaterally through conduct or words.
Once you have satisfied the one year separation period then you may apply to the court for a divorce and unless your spouse has a legitimate and valid reason for opposing the divorce (i.e. corollary issues have not been resolved and will not be resolved if there is a divorce) then the court has the discretion to grant one and probably will.
This is especially true if there is an extenuating circumstance requiring that you obtain a divorce judgment, such as a pending remarriage, and the only reason your spouse is opposing is due to jealously or resentment.
Q: I was married in Ontario but no longer live there. Where do I apply for my divorce?A:
It depends. If your spouse still lives in Ontario and satisfies the ordinarily resident requirement as well as resided in that province for one year immediately preceding the commencement of the proceedings then you may still apply for a divorce in Ontario.
Or, you may apply for a divorce in your new location. This will be possible only if you have lived there for at least one year immediately preceding the commencement of the proceedings and satisfy the ordinarily resident requirement.
Q: What is a separation agreement and do we need to have one?A:
A separation agreement is essentially a contract drafted between two spouses or common law partners resolving issues of:
- custody and access (if applicable),
- division of property and equalization, and
It replaces your need to go to court to resolve these issues and if you and your spouse/partner are agreeable then it is the most optimal course of action you should take. Going to court is extremely costly and drafting a separation agreement, even if you must resort to arbitration or mediation, may greatly reduce the costs associated with obtaining a divorce.
A separation agreement is not necessary, however, as was previously mentioned it greatly reduces the costs associated with divorceand it is flexible and personal.
- It is personal in that the parties involved are able to discuss the issues and reach a conclusion that best suits their particular situation as opposed to a judge who is an objective third party and unaffected by any decisions he or she may make.
- Flexibility stems from the fact that any amendments that must be made can be made by the parties themselves, quickly and easily and take effect when the parties have agreed to and signed the amendment. The alternative to this would be bringing an application to court for a variation with which come costs and delays and the unnecessary consumption of your time.
Q: What happens to the children when we are separated and awaiting our division of assets and our divorce?A:
Most likely the children will get to stay in the matrimonial home (if it has not been sold) with both parents unless one parent voluntarily chooses to move out, thus granting the other de facto exclusive possession, or the court orders interim or final exclusive possession.
Exclusive possession is not readily granted and it is not automatic. Usually both spouses will stay in the home until the resolution of their case after which they will sell the home, divide the proceeds and find alternative accommodations. However, in extreme cases, most typically cases of abuse or cruelty, the affected spouse will contact the police who will arrest the abusing spouse.
The result of such will either be:
- To serve him or her with a restraining order, or
- Impose a condition of bail stating that he or she cannot return to the home.
Therefore, in cases such as the aforementioned it will be unnecessary to bring a motion for exclusive possession as the police have already dealt with the issue and secured exclusive possession for the abused spouse.
Q: How is divorce different for a same-sex couple?A:
Same-sex couples that normally reside in Canada are entitled to the same divorce process as heterosexual couples. The Divorce Act does not distinguish between heterosexual and homosexual couples, nor does Ontario’s Family Law Act(which governs property claims for divorcing spouses), and Canadian courts apply the law equally to all married couples.
The only situation in which divorce may be different for same-sex couples is where the couple came to Canada to marry because same-sex marriage is not allowed in their home jurisdiction. If they return to their home state, but later decide to divorce, the home state cannot grant a divorce because it never recognized their marriage as valid in the first place.
Until recently, Canada would not grant these couples a divorce either, unless one of the spouses had lived in Canada for one year before applying for divorce. The one-year residency requirement under the Divorce Act applies to all spouses seeking divorce in Canada, but it resulted in additional hardship for same-sex couples who could not simply apply for divorce in the jurisdiction in which they had resided for the past year.
In order to address that hardship, the government passed Bill C-32, or the Civil Marriage of Non-Residents Act. That Bill amended the Civil Marriage Act in order to allow couples living elsewhere who were married in Canada to obtain a divorce in Canada, if they cannot obtain one in their home jurisdiction. The Bill was passed by the House of Commons and the Senate in June 2013 and is currently awaiting royal assent.
Note, however, that the amendments will not give Canadian courts the jurisdiction to deal with any forms of corollary relief, such as property division or spousal support. A Canadian court only has jurisdiction to grant the divorce itself.
Q: What are costs awards?A:
Costs are a financial consequence of adjudicated matters and involve a form of reimbursement by the unsuccessful party for legal fees incurred by the successful party. Costs are meant to compensate the successful party for a portion of their legal fees and to discourage abuse of the judicial system.
When seeking relief from the court, costs may be ordered against you for several reasons pursuant to the Family Law Rules. Further, there is a presumption that the successful party in a matter is entitled to receive a costs award at the court’s discretion. Common reasons for ordering costs against a party include:
- Failure to follow the rules of the court, or abuse of the judicial process;
- Failure to follow an order of the court;
- Withdrawing any part of an Application, Answer or Reply;
- Failure to make complete and honest financial disclosure;
- Being unprepared for a court appearance, resulting in your matter being adjourned;
- Acting in bad faith, or engaging in malicious conduct.
Self-represented clients are held to the same standard as a lawyer representing a client, and courts expects parties to have a well-informed appreciation of the legal process.
One of the most important issues related to costs is the consequence of failing to accept a reasonable Offer to Settle. If the party who made the offer obtains an order that is as favourable as, or more favourable than, the offer presented to you, costs can be ordered against you. See The Layperson’s Guide to Procedural Rules for more information on offers to settle.
Conduct also has an impact on costs; if you are the successful party in a case but are deemed to have behaved unreasonably, the court has the authority to reduce or annul your costs award. Costs should be considered when attempting to bring matters of little financial significance to court. Unlike the negotiation process, there are considerable risks associated with taking your matter to court.
Q: What is a religious barrier to remarriage?A:
When applying for a divorce, a separating couple is seeking an end to their legal, civic union. While a divorce will formally dissolve a marriage in the legal sense, a civil termination to marriage is not always recognized by religious authorities. Parties who wish to remarry within their religion in the future may require further, culturally sanctioned actions to remove any religious barriers to remarriage. For example, in the Jewish faith a wife is precluded from remarrying until she receives the “get” from her former husband.
The Divorce Act (s. 21.1) contains provisions regarding the removal of barriers to religious remarriage which affect both current and former spouses. See the Separation article The Role of Religion in Separation/Divorce for more information about how to have a religious barrier to remarriage removed.