When it comes to divorce there are many ins and outs, government rules and regulations, as well as, overall procedures that are a part of the process. We have put together a quick guide of how Divorce works in Ontario. The goal of the guide is to address the basics of divorce law in Ontario and how it may be applicable to you.
This article will cover the following:
- The Divorce Act and its key information you should know
- The Divorce Process in Ontario
- How to Obtain a Divorce in Ontario
- What Happens In a Divorce Proceeding
- How the Rules Change When a Child is Involved
Here at Epstein and Associates, we believe that everyone has a fundamental right to understand what is going on in their divorce case. A lawyer-client relationship should always be based on trust and respect. This is why we go above and beyond to ensure our clients feel comfortable speaking with us as freely and candidly as they feel is necessary. Speak with one of our well-respected lawyers today and learn how Epstein and Associates can help you now.
The Divorce Act
The Divorce Act is the governing statute of rules and regulations that are used when a couple wishes to be divorced in Canada. It covers everything from the jurisdiction of divorce proceedings to corollary relief such as child support orders, spousal support orders, provisional orders and many more regulations.
The main information to know about the Divorce Act is that every rule that stems from it is used in every divorce proceeding across all of Canada.
The Divorce Process in Ontario
According to Ontario laws, 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.
Under the Divorce Act, you do not need to prove that your spouse was at fault for the marriage failure. If in the marriage both parties have just grown apart which resulted in a breakdown of the marriage, then one year of living apart will suffice as grounds for divorce. After one year, both parties can legally request a divorce. They may do so together, in a joint application, or one party may do so on their own. It is also important to note, that parties may reside under the same roof and still be separated, so long as they have decided to no longer live as husband and wife and there is no prospect of reconciliation.
However, 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 evidence of what happened.
How to Obtain a Divorce in Ontario
Before starting a divorce, we recommend that you always seek legal advice from an expert in divorce and family law. This will ensure that not only will you understand how the law applies to your case but you will also have someone there who can protect your rights.
To start the divorce process, you must:
- Fill out a divorce application. The Ontario court form can be found here.
- According to the Ministry of the Attorney General, you will then need to submit the application at an Ontario courthouse. Find the location of a court office here.
- Pay the required court fees.
- Follow any court rules and procedures given.
There are costs to getting a divorce in Ontario. Aside from a lawyer fee, there are government filing fees that are required before a divorce case can be finalized. Your lawyer will be able to inform you of these fees in your initial meetings.
What Happens In a Divorce Proceeding
As per Ontario laws, only a court can grant the approval of a divorce request.
It is the responsibility of each person involved in the proceedings to apply and then present their case to satisfy the court. Applications are made to the Superior Court of Justice or Family Court branch of the Superior Court of Justice if available. If your divorce application includes claims such as custody, or access, support or division of property, you may be asked to appear in front of a judge, in person, to make your claim. Typically the first attendance is at what is known as a Case Conference; an informal hearing before a judge to canvass the issues in your case broadly.
There are other possible reasons you may attend a court hearing such as if your circumstances are complicated and not agreed upon by the other party. This may be for a Motion, Settlement Conference, or Trial. The date of the court case is usually set after the parties know their respective positions on all the items in their divorce application and can start working towards a resolution. We have further outlined what you can expect when attending a court case here.
How the Rules Change When a Child is Involved
In the event that you cannot agree on a parenting agreement, the Divorce Act has a very clear set of basic principles that a judge must use when making decisions about children.
- 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.
There is a multitude of different factors that a judge will take into account when deciding on the best interests of the child, such as:
- Care arrangements before the separation. (Who looked after the child most of the time?)
- The parent-child relationship and bonding.
- The parents’ mental, physical and emotional health.
- The schedule of the parent. (How often are they around? Do they travel often?)
- If there are any support systems.
- If there are any other siblings. (Usually, siblings will remain together)
There are two types of child custody in Ontario. The first is joint custody (now referred to as joint parenting), which means you both have to agree on major decisions for your children’s well-being. When it comes to joint custody you are legally not allowed to make a decision for your children without an agreement with the other parent.
The second is sole custody, which then grants one parent full rights on the important decisions made for them, and it does not matter if the other parent does not agree. The parent that is not given sole custody might have the opportunity to still be given access to visit their children and be given information about the children’s wellbeing, health, and education as long as it does not affect the child’s emotional or physical wellbeing.
There are different levels of access you or the other parent can be given to your children, depending on your family history, character and level of responsibility. In most cases, one parent is required to pay child support to the custodial parent. The amount of support is determined based on how much money the person paying earns and how many children they have to support.
For all information regarding child support laws in Ontario, please click here for more details.
Paying Spousal Support
Entitlement to spousal support and its payment obligations is one of the most commonly-litigated issues in family law.
When it comes to spousal support the amount and duration are entirely based on the case and situation. It is almost always tied to the parties’ history, respective ages and ages of any children. The law views spousal relationships as ‘financial partnerships’. So when the partnership breaks down the person who makes more money typically ends up paying the other for support. Having said that, there are a number of factors that are considered, such as, the need and ability to pay of the parties, whether either party made an economic sacrifice for the marriage and whether there are any extenuating factors.
All support amounts are usually determined between your legal representatives and the court, if necessary. The best person to understand how much you might be paying or receiving for support is your lawyer. For more information on child support please click here.
For more information about divorce or separation laws in Ontario please contact us now and book a free 30-minute consultation.