DIVORCE FAQs:

Separation:
• What is the difference between separation and divorce?
• What if I my partner and I are in a common-law relationship?

Divorce Proceedings:
• If I am applying for a divorce, when is my marriage considered over?
• Can I apply for a divorce in Canada?
• Do I need a reason to get a divorce?
• Do I need to prove that my spouse is responsible for our marriage breakdown?
• How is a divorce application commenced?
• What if I apply for a divorce and then want to try to reconcile with my spouse?
• What happens if my spouse and I agree on all the issues?
• What happens if we can't agree?
• What if I have issues that are urgent?
• What can I expect if I go to Court?

Parenting Arrangements:
• How are decisions made about custody of the children?
• What is joint custody?
• What are my responsibilities if I have custody of my children?
• How can i spend time with my children if i do not have custody?
• Do I have to use the terms "custody" and "access" when deciding upon parenting arrangements?

Child and Spousal Support:
• How is the amount of child support determined?
• How is spousal support decided?

Property Issues:
• How do we divide our property?

  What is the difference between separation and divorce?

A separation occurs when one or both spouses decide that their relationship is over even if they continue to reside in the same home. There are many issues that you and your spouse may need to discuss once you have separated, such as custody, access, child support spousal support and property.

The lawyers at Epstein & Associates can resolve these issues for you in different ways:

• We can negotiate a separation agreement. A legal document signed by both spouses that sets out the arrangements on which you have agreed. You require independent legal advice to make the document legally binding.

• We can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.
  To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act. Contact Epstein & Associates to negotiate a Separation Agreement or commence divorce proceedings on your behalf.
  One lawyer cannot represent both parties in a divorce proceeding.

  What if my partner and I are in a common-law relationship?

A divorce will not apply to you if you are not legally married. However, you may still need to negotiate a separation agreement or make an application to the court to arrange custody/access, child support, etc. If you live common law, you do not have the same rights upon separation as married couples. Contact Epstein & Associates to find out more on the legal rights of common law spouses.
If you live common law, you do not have an automatic right to half of you partner’s assets.

  If I am applying for a divorce, when is my marriage considered over?

Your marriage is over when you receive a divorce order from a judge at the end of the application process.
 

  Can I apply for a divorce in Canada?

You can apply for a divorce in Canada if:

• you were legally married in Canada or in any other country; and

• you intend to separate permanently from your spouse and believe there is no chance of reconciliation, or you have already left your spouse and do not intend to get back together; and

• one or both of you have lived in the Canadian province or territory for at least one year immediately before applying for a divorce in that province or territory.
  
  You do not have to be a Canadian citizen to apply for a divorce in Canada.

   Do I need a reason to get a divorce?

To get a divorce, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:

• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or

• your spouse has committed adultery and you have not forgiven your spouse; or

• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.
  
  You can get a divorce if one of these situations applies to you.
  Over 80 percent of divorces in Canada are based on one-year separations.

   Do I need to prove that my spouse is responsible for our marriage breakdown?

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.
If the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.

 

   How is a divorce application commenced?

It is always advisable before starting a divorce application to speak to a family lawyer. A lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do. Contact Epstein & Associates to schedule an initial consultation so that all your questions and concerns can be answered by one of our knowledgeable and experienced lawyers.
You do not have to wait one year before commencing a divorce application.

 

   What if I apply for a divorce and then try to reconcile with my spouse?

 

You can live together for up to 90 days for the purposes of reconciliation, before or after you have applied for a divorce on the ground of one-year separation. You can still continue your action for a divorce as if you had not spent this time together if things do not work out between the two of you.
You cannot stop your spouse from obtaining a divorce.

 

   What if my spouse and I agree on all the issues?

If you and your spouse agree on all issues, you have a simple or uncontested divorce. Contact Epstein & Associates and we will obtain your divorce in a time and cost efficient manner.
In Ontario, court officials process uncontested divorces and you do not have to appear in court.

 

 

   What happens if we can't agree?

If you and your spouse are not able to agree on one or more of the issues of the divorce, you have a contested divorce. Both parties must fill out, serve and file the necessary court documents that specify the issues you cannot agree on. There is a procedure set out by the court that you must follow before a trial can take place, which can often take a considerable amount of time.
Once all of the steps have been completed, your case will be set down for trial. During the trial, you will explain your case to the judge. You may also bring witnesses to help you to prove your case. The judge will make a final decision about the issues you and your spouse cannot agree on. At any time during the divorce proceedings and even after you submit the court documents, you can still try to reach an agreement with your spouse on these issues, and negotiate further with the help of one of our lawyers.
About 90 percent of cases are settled before trial. However, there are often months of negotiations and many low moments before settlement.
The last step of the process is for a judge to review all of the information you have submitted, either on your application form or in the trial, to make sure you have met all the legal requirements for a divorce. The judge grants the divorce and sets out his or her decision on any issues that need to be resolved in a divorce judgment. This judgment normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce.
A Certificate of Divorce is legal proof that you are no longer married.

   What if I have issues that are urgent?

When you apply for a divorce, you may request that a judge deal with certain issues right away.
These issues include short-term parenting arrangements for your children and child and spousal support. The judge issues an interim or temporary order that stays in place until the judge varies it or makes a final order at trial. The lawyers at Epstein & Associates will do everything possible to ensure all your short-term needs are met.

 

   What can I expect if I go to Court?

If your case is not settled through negotiations and you cannot enter into a Separation Agreement, you may have to rely on the courts for assistance. The experienced trial lawyers at Epstein & Associates can help you with the legal process. Unless settled through negotiations, cases will proceed as follows:

• Application is issued & served on responding party;

• Case Conference;

• Interim Proceedings if required: Motions for Interim Support, Custody, Exclusive Possession of Matrimonial Home, etc;

• Questioning on financial and other pertinent issues;

• Settlement Conference;

• Pre-Trial Conference;

• Trial Management Conference;

• Trial.

Epstein & Associates will ensure you are represented with only your best interests in mind and will always strive to reach a fair settlement, no matter where in the above process your case is at, in order to minimize your legal costs. If you have been served with a Court Application, or are interested in commencing a Court Application, contact Epstein & Associates and will provide you with immediate assistance.

 

   How are decisions made about custody of the children?

Under the Divorce Act one or both parents may have custody of the children.
The basic principles that a judge uses when making decisions about children are the following:

• The best interests of the children come first.

• Children should have as much contact as possible with both parents so long as this is in the children's best interests.

• The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person's ability to act as a parent.

When deciding on the best interests of the child, the judge will take into account a number of factors including:

• Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child's school and teachers?)

• The parent-child relationship and bonding.

• Parenting abilities.

• The parents' mental, physical and emotional health.

• The parents' and the child's schedules.

• Support systems (for example, help and involvement from grandparents and other close relatives).

• Sibling issues. Generally, brothers and sisters remain together, but under some circumstances it may be necessary to consider separating them.

• The child's wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child's wishes as the child matures. An older teenager's wishes will often be decisive.)

   What is joint custody?

Joint custody means that both of you and your spouse have care and control of the children and will continue to share your responsibilities as parents equally. In other words, you both continue to make all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.

The lawyers at Epstein & Associates realize how important your children are to you and take special care in handling this issue with the upmost sensitivity and understanding.

 

   What are my responsibilities if I have custody of my children?

You are responsible for making the major decisions about your children’s upbringing and schooling. The children will usually reside with you for the majority of the time.
In most cases, the other parent still has responsibility to care for the children some of the time. The law states that it is in the best interests of the children that they have as much contact as possible with both parents. However, in serious circumstances, a judge may decide that it is in the children's best interests not to spend time with the other parent.
Children benefit from the opportunity to develop meaningful relationships with both parents and with other extended-family members as long as it is safe and positive to do so.

 

   How can I spend time with my children if I don’t have custody?

Since it is important for the parent that does not have custody of the children to still spend time with them, access arrangements should be determined between the parties. If you cannot agree on these access arrangements, the court will decide for you.
A parent with access:

• usually spends time with the children, such as on a weekday evening, on week-ends and on holidays; and

• may ask for information about the children—news about their health and well-being and about how they are doing at school.

As a parent with access responsibilities, you can ask the court to order the other parent to give you advance notice—at least 30 days—if he or she intends to move the children to another home.
You can arrange for access through your lawyers if a court order or separation agreement is not yet in place.

 

   Do I have to use the terms "custody" and "access" when deciding upon parenting arrangements?

The Divorce Act uses these terms, but this does not limit the types of parenting arrangements that may be included in written agreements or legal documents. Other words or descriptions can also be used to set out parenting roles and responsibilities.

   How is the amount of child support determined?

Even after divorce, both parents have a legal duty to support their children financially.
Once you have worked out the residential arrangements for your children, you will need to look at the payment of child support. Before granting a divorce, the judge must be satisfied that appropriate financial arrangements have been made.
You will use a set of rules and tables, called child support guidelines, to help you figure out the amount of child support. The federal government has produced a number of publications to help you calculate child support.
Who pays child support depends on the child's residential arrangements. The basic amount is based on three things:

• the paying parent's income;

• the number of children involved; and

• the province or territory where the paying parent lives.

In some circumstances, the base amount can be increased or decreased. For example, the amount could be adjusted if the children have special expenses, such as childcare. The amount could also be adjusted to prevent financial hardship for a parent or the children. This might be fair when, for example, the parent paying the child support is suffering a hardship—perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support.
Child support amounts set out in a separation agreement or court order made after April 30, 1997, do not affect income tax.

• The person who receives the child support payments does not have to list them as income on his or her income tax form.

• The person paying the child support cannot deduct the support payments from his or her income.
  Child support does not automatically end when a child turns 18 years of age.

   How is spousal support determined?

During a marriage, spouses usually share their love, their time and their income. They both invest in their life together. But unlike an investment with a bank that pays a given amount of interest, an investment in a life together is difficult to add up and then divide.
For example, you may have worked and paid all the bills. Maybe you worked while your spouse trained to get a better job. Or you may have helped in your spouse's business. Often, a spouse gives up a job so that he or she can stay home, manage the household, and care for the children. These contributions to a marriage all have value. The Divorce Act sets out factors and goals to be considered when figuring out if one spouse should pay another spouse financial support after a divorce. Among these factors are answers to the following questions.

• How long did you live together?

• What was your role in the marriage?

• Who is living with the children?

• The amount of spousal support to be paid depends on the needs of each spouse and on their income and resources.

Other things are also important. The law sets several goals to keep in mind.

• Spousal support should give value to the contributions made during the marriage. If one spouse has benefited financially from a contribution, the other spouse should be compensated.

• Another goal is to make sure that after a marriage is over, one spouse doesn't suffer economic hardship.

• A third goal is to make sure that the spouse who lives with the children is not at a financial disadvantage because of that.

• Finally, spousal support should help each spouse become economically independent within a reasonable amount of time, if possible.
  
  A judge can order one spouse to pay spousal support to the other for a particular amount of time or indefinitely.
  You may not be able to make a claim for spousal support if you do not start a court proceeding within two years after the date of your separation.

   How do we divide our property?

"Property" includes such things as the home you and your spouse shared, its contents, any other real estate, pensions from employment, Canada or Quebec Pension Plan credits, RRSPs, investments, bank accounts, cash and even business assets. Debts include such things as amounts you owe on your credit cards, your mortgage, and any loans you have. It is very important to receive legal advice on property division.
There are two ways to divide up your property and debts fairly. You can either come into an agreement on how you will divide your assets and debts and include it in a formal legally binding separation agreement or commence court proceedings with a claim for property.

For separation agreements to be legally binding, they usually require independent legal advice and full financial disclosure. The lawyers at Epstein & Associates have negotiated and finalized Separation Agreements for many clients to their satisfaction.

Under the Family Law Act, you may lose all your rights to share in family property if you do not commence a court proceeding within six years from the date of your separation, or two years from the date your divorce was granted.

No matter how extensive or complicated your property issues may be, the knowledgeable lawyers at Epstein & Associates will strive to represent and protect your legal rights and needs.

Contact Epstein & Associates today to schedule your free half-hour initial consultation with one of our lawyers so that they can answer any other questions you may have concerning family law.