Divorce Requirements in Ontario
Depending on the jurisdiction, there are different requirements that need to be met to obtain a divorce. This is definitely something that you should make sure that you are aware of before starting the divorce process in Ontario, as you want to be sure that you don’t waste money by starting divorce proceedings in a situation where you do not meet the requirements.
In Canada, the requirements of divorce are set out in a Federal statute known as the Divorce Act, R. S. C. 1985, c. 3 (2nd Supp.). The Divorce Act also deals with, what is known as “corollary relief,” – which are other claims that spouses can make under the Divorce Act, such as child support and spousal support, and applies to all provinces and territories across the country, including Ontario.
In Ontario, if there has been a breakdown of the marriage, spouses do not have to “agree” to end the marriage or obtain a divorce. If one spouse wishes to end the marriage, they are entitled to make a claim for divorce if the criteria set out in the Divorce Act are met.
One thing that is important to note is that depending on the circumstances, you may need to start your Divorce proceeding in a particular jurisdiction. In Ontario, for example, for a divorce to proceed in either the Superior Court of Justice or Unified Family Court, either party must have been “ordinarily resident” in the province for at least one year immediately before of the start of the divorce proceeding, as set out in Section 3(1) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) Another instance where the jurisdiction would become important is if your spouse already started a divorce proceeding in another court; if that court has the authority to deal with the divorce, then you may not start a 2nd divorce proceeding at a different courthouse.
One way to avoid making the potentially costly mistake of filing for divorce when you do not meet the necessary requirements is to retain a qualified family law lawyer in your area. Family law lawyers should be familiar with the requirements to obtain a divorce and are in a position to advise you accordingly to ensure that your Divorce proceeding is properly commenced.
Grounds for Divorce in Ontario
Section 8 (2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) provides that a spouse can seek a divorce by establishing a breakdown of the marriage. There are 3 “grounds” on which a claim for divorce can be made:
- the parties have been living separate and apart for at least one year immediately before the divorce proceeding started;
- adultery; OR
- “physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses”
It is important to note that it is possible to live “separate and apart” while continuing to reside “under the same roof” for the purposes of separation. In most instances, currently, most parties base their claim for divorce on the first ground: living separate and apart. It is the simplest and easiest to prove.
The Divorce Process in Ontario
Generally speaking, unless specific steps are taken to sever the divorce from the other issues,- before a divorce can be finalized, a resolution of the issues arising from the breakdown of the marriage must be determined. These issues include Property Division, Spousal Support, Child Support, and Parenting. In some cases, the court will not grant a divorce unless they are satisfied that reasonable financial support arrangements have been made for the children of the marriage. This means that if parties have children who are under 18 years of age or over 18 but pursuing a post-secondary educational program, disabled, or unable to withdraw from parental support for health reasons, then a court may refuse to grant a divorce if there is no separation agreement or court order which outlines child support arrangements that are in place for the children. For this reason, if you have children and want to file for divorce in Ontario, it would be beneficial to talk to a lawyer to ensure that you and your spouse have made and documented child support arrangements properly.
In Ontario, the Ontario Court of Justice does not have jurisdiction to grant divorces. If seeking a divorce, parties must commence their action in either the Superior Court of Justice or the Unified Family Court as these are the only the courts with the authority to grant divorces. Arbitrators and Family Law Mediators have no authority to grant a divorce. Many people mistakenly believe that if they resolve all of the issues between them and sign a separation agreement that this concludes the divorce process in Ontario. However, if the parties want a divorce, then the only way to do that is to commence a Divorce Application in either the Superior Court of Justice or the Unified Family Court.
With that having been said, commencing a Divorce Application in court does not have to be a complicated adversarial process. If both parties agree, the divorce can proceed on an uncontested basis. The divorce process in Ontario for an uncontested divorce is very simple and generally only involves filing forms with the court. In many uncontested divorce cases, parties do not appear in court for a hearing as the judge deals with the paperwork in their chambers. To obtain a Divorce in this way, parties file the appropriate forms and documents at court, which are then processed at the courthouse, and if everything is in order, they receive a Divorce Order in the mail granting the divorce. The divorce is effective within 31 days of the date on the Divorce Order. It is important to obtain a Divorce Certificate from the courthouse after the divorce is effective as this document may be required to prove the divorce in the future- particularly in the event of re-marriage.
If a party makes a claim for divorce in Ontario but their spouse files responding materials (such as an Answer, 35.1 Affidavit and/or Financial Statement) disputing the date of separation or making claims arising from the breakdown of the marriage then it will be necessary to file reply materials (such as Reply, 35.1 Affidavit and/or Financial Statement) and attend court to address the claims in dispute. The family litigation process is different than that of civil litigation or criminal law matters and is governed not only by the Family Law Rules, O. Reg. 114/99 but also by the Rules of Civil Procedure, R.R.O, 1990, Reg. 194. Family litigation also has its own special family law court forms.
How much does a divorce cost in Ontario?
It’s difficult to estimate the total cost of a divorce in Ontario. The cost of a divorce can vary significantly on a case-by-case basis, and depends upon the specific circumstances surrounding the divorce and separation. Generally speaking, an uncontested amicable divorce is the most cost-effective option; unfortunately, this isn’t always possible.
Legal fees are often driven by factors such as the level of conflict between the parties, the complexity of the issues. Divorce which proceeds by way of litigation is generally more expensive than a divorce which proceeds by way of negotiated settlement. There are also other private Alternative Dispute Resolution processes such as Mediation, Arbitration, or a combination of the two which allow the parties to hire an experienced family law professional to help them along with their lawyers to resolve the issues between them. While this does involve the added expense of hiring a Mediator or Arbitrator, it can still be more cost-effective than litigation as it can allow parties to streamline the process by which they reach a final settlement.
Often, when people think of the cost of a divorce they think of lawyer’s fees, which are certainly a significant part of the costs, however they are not the only costs associated with divorce: there are also court filing fees, and in some cases accounting fees, valuation fees, and other experts’ fees. While it may seem more cost effective to proceed with a divorce as a self-represented party to avoid paying legal fees, there is a risk associated with doing so. Family law in Ontario can be complicated and difficult to navigate- particularly for someone who is unfamiliar with its nuances. This can lead to reaching a settlement which does not reflect your true entitlement under the law or making procedural mistakes which will need to be corrected with the help of a family law lawyer later on. Often it is more costly (and time consuming) to correct errors than it is to seek advice in the first place.
If you are considering divorce, it’s important to seek advice from a qualified family law lawyer in Ontario to ensure that you begin the process properly in order to avoid costly procedural or strategic mistakes which can cause delay and increased legal fees.
How long does it take to get a divorce in Ontario?
The time it takes to finalize a divorce in Ontario varies on a case by case basis. Factors such as the complexity of the issues or the level of acrimony between the parties can influence the time it takes to get a divorce in Ontario. Litigation is a long process where parties have little to no control over the timing, which can often be subject to delays. Negotiation and other forms of Alternative Dispute Resolution such as Mediation or Mediation/Arbitration allow parties more control over the timeline as these are private processes which do not rely on the availability of the courts. It’s important to remember, however, that even in instances where parties opt out of litigation, one party cannot dictate the timeline without the cooperation of the other.
The best way to ensure a speedy divorce in Ontario is to try to cooperate with the opposing party and reach a negotiated settlement of the substantive issues, and then file for an uncontested divorce. However, it is important to remember that a divorce will not be granted by the courts until the parties have been separated for one year. It is very important to obtain advice from a qualified family law lawyer about any negotiated settlement of the issues before you sign or agree to anything. This ensures that your rights are protected, and that you understand your rights and obligations under the agreement. For more information, and to speak with a qualified Ontario divorce lawyer about your specific situation, you should contact us to book a free 30 minute consultation.
Who pays for divorce in Canada?
Often, one of the biggest concerns for those going through the divorce process is not only what the cost will be, but also, who will be expected to pay for the divorce. Who ultimately bears the financial responsibility for divorce varies on a case by case basis. In some
cases, parties may agree that one person will cover the costs, or that the costs will be shared equally, or on some other percentage basis. In other cases, if the parties have been involved in litigation, the court may order how the costs of the divorce are to be distributed between the parties depending on the circumstances.
Generally speaking, in Ontario, if parties are engaged in litigation and proceed to a trial the unsuccessful party may be ordered to pay the successful party’s legal costs. However, this risk can be mitigated by making an offer to settle. If you are engaged in family law litigation, you should speak to your lawyer about the potential cost consequences and about making an offer to settle. If a divorce is proceeding on an uncontested basis, generally speaking, the cost of the divorce itself and the court filing fees are shared equally between the parties. With that said, there is no hard and fast rule about who will bear the costs of a divorce in Canada. To get accurate information about your particular situation, you should speak to a qualified family law lawyer who can answer your questions.
What am I entitled to in a divorce in Ontario?
In Ontario, unless there is a domestic contract which limits or alters right and obligations under family law, spouses are entitled to property division in what is known as “a deferred community of property”, as well as potentially child support and/or spousal support depending upon the circumstances.
In terms of equalization of family property, this means that ownership of the individual assets is determined by who holds title to a particular asset, however spouses share in the value of all assets accumulated during the marriage, subject to certain deductions or exclusions. To calculate the equalization of net family property, the total value of all assets and liabilities in each spouse’s name are added up at date of marriage and date of separation; the liabilities are then subtracted from the assets and the date of marriage net total is subtracted from the date of separation net total to come up with each spouse’s Net Family Property. The difference between the two spouse’s net family properties is then calculated by subtracting the lesser net family property from the greater net family property, and the spouse with the greater net family property then owes a payment to the spouse with the lesser net family property in the amount of half that number. This payment is known as the equalization payment.
You may be entitled to receive child support if you are the parent with whom the children reside primarily. The Federal Child Support Guidelines sets out the basic the amount of support payable depending on the income of the payor parent; in general, the income of the recipient parent is not considered when determining the basic table child support amount. Adjustments may be made to the table child support amount in certain situations where there are shared parenting arrangements. You may also be entitled to receive an additional payment on account of special or extraordinary expenses of the children, which are set out in section 7 of the Child Support Guidelines and may include such expenses as uninsured medical and dental expenses, daycare, extra-curricular activities, and post-secondary education expenses. Usually, children are entitled to child support for as long as they are under the age of majority, or until they have obtained their first post-secondary degree.
Depending on several factors, including your need for financial support and your spouse’s ability to pay spousal support, you may also be entitled to spousal support. If you are entitled to spousal support, the amount and duration of support is discretionary and varies on a case-by-case basis depending on the circumstances of your relationship surrounding your ability to generate an income for yourself.
The financial aspects of divorce can be complex and confusing, which is why it’s very important to have the advice and guidance of a qualified family law lawyer who understands the nuances of the support and property regime in Ontario. To discuss your particular situation with one of our expert divorce lawyers, contact us to book an initial consultation at no cost to you.
What are the rules for divorce in Canada?
In Canada, the only way to get a divorce is to have one granted by a court. While many people choose not to complete the divorce process by applying to the court for a formal civil divorce once they have settled the issues between them, this is an important step to take if you intend to remarry in the future as it is against the law to marry someone in Canada if one of your is already married. Even if you are no longer together, and have a separation agreement, you will have to provide proof of your divorce (in the form of a divorce certificate issued by the court) in order to remarry.
Either spouse may apply for a divorce in Canada, and there is no way to prevent your spouse from applying for a divorce from you, even if you do not want the relationship to end. In order to obtain a divorce, all that must be established for the court is that there has been a breakdown of the marriage, and that financial support for any children of the marriage has been arranged. It does not matter where your marriage took place, and you do not have to be a Canadian Citizen in order to obtain a divorce in Canada as long as you or your spouse has been a resident in Canada for at least one year immediately prior to filing for divorce.
It’s important to remember that no matter how long you have been separated for, divorce never automatically occurs in Canada- even if you have been separated for years, you are still married until you have completed the legal process and applied to the court for a divorce. Once a divorce has been granted, there is a 31 day period during which you can appeal the Divorce Order made by the court; once the 31 days has passed, the divorce cannot be undone even if you and your spouse reconcile: if you wish to be married again, you will have to get married.
What are grounds for divorce in Ontario?
In Ontario, as in the rest of Canada, there is only one ground for Divorce: breakdown of the marriage. According to The Divorce Act a breakdown of the marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
While any of these options may be used to establish a breakdown of a marriage and grounds for divorce in Ontario, most of the time, people apply for a Divorce and establish grounds for divorce based on living separate and apart for a period of one year. This is the only “no fault” means by which to establish a marriage breakdown and is often the simplest and most cost effective means for doing so as it provides for “no-fault” divorce and does not require spouses to bring any conduct related evidence forward.
Conversely, if a person is attempting to prove breakdown of the marriage on the basis of adultery or cruelty, then the court will require that they provide proof of their claims in order to substantiate that the grounds for divorce have been met. It is important to note that while this evidence will need to be brought forth in order to obtain the Divorce Order, any conduct related evidence regarding the cause of the breakdown of the marriage will generally not have an impact on the court’s decisions regarding the substantive issues of the separation such as custody of and access to children, child support, spousal support, or the division of property. With that said, it is important to get proper independent legal advice about your specific circumstances before determining how best to proceed. To speak to a qualified Ontario divorce lawyer about your situation, contact us and book a free 30 minute consultation.
Who gets the house in a divorce in Canada?
For most married couples, the parties shared home is their most significant asset- both in terms of value and in terms of sentimental importance- so understandably, many people wonder who would be entitled to keep that asset in the event of divorce. Under Canadian Family Law, property division is governed by provincial legislation and the property division regimes vary province to province. With that having been said, a general principle of property division is that the value of property accrued during the marriage should be divided and shared between spouses. In Ontario, property division is governed by the Family Law Act. Under the Family Law Act, and the property regime in Ontario, spouses are not entitled to specific individual assets that they personally do not own- they are entitled to share in the value of those assets.
In the case of the question above related to who keeps the house in a divorce in Canada, in Ontario, if the house is in one spouse’s name, then that spouse would be entitled to keep the house but the value of the property would be taken into account in the equalization calculation. It is also important to remember that a matrimonial home, which is defined in the Family Law Act, is treated a bit differently than other assets under Ontario family law. The matrimonial home is defined by use, and is the place where the parties were ordinarily resident at the time of separation. If the house is in joint names, however, then one spouse can buy out the other spouse’s interest in the home, or the parties can decide to sell the property and split the proceeds. It should be noted, however, that the court cannot prefer one joint owner of a property over another, which is to say that the court cannot force one party to sell his or her interest in the property to the other. This means that if joint owners cannot agree as to who will retain the asset, the property will have to be sold.
It’s also important to make the distinction between the possession of the home, and who ultimately ends up with the asset once the property division is finalized. Both parties have equal right to possession of the matrimonial home, regardless of whose name the property is in. In some instances, if, at the time of separation the parties cannot agree who will remain in the property one party may bring a motion for exclusive possession of the matrimonial home and if they are successful, they will be granted the right to stay in the home and the other party will have to vacate the premises.
The question of who remains in the home and who ultimately ends up owning the property can be a complicated one depending on the circumstances, and it is for this reason that it is very important to seek legal advice from a qualified family lawyer on this issue. Contact us to book a free 30 minute consultation with one of our qualified divorce lawyers to discuss your situation and understand your rights related to your home.
How long do you have to be separated before divorce in Canada?
According to the Divorce Act, in order to properly establish grounds for divorce in Canada, parties must be separated for a period of one year prior to a divorce being granted. While many people do physically separate by having one spouse move out and maintaining separate dwellings, it should be noted that you can be separated while still living under the same roof. For the purposes of establishing grounds for divorce, being “separated” from your spouse has more to do with living separate lives than living in separate homes.
Once one you feel that the relationship is over without the prospect of reconciliation and you communicate that to your spouse, you can be considered separated. Once this happens, it is important that you and your spouse act as though you are separated, meaning that you do not behave as a couple, no longer hold yourselves out to be a couple in public, and stop living as a couple within the home. While it is certainly more economical to remain living separate and apart under the same roof, it can also have some undesirable complications. Separation and divorce can be a very emotional time, and with tension and emotions running high this can be a recipe for conflict in the home. There are also certain instances where it is simply not possible to remain living with your spouse under the same roof- such as in situations where there has been domestic violence or abuse. In these circumstances, it is most important to prioritize your safety and find a secure and comfortable living situation.
If you and your spouse reconcile during the period of separation, but you are reconciled for less than 90 days you do not have to restart the clock on the one year separation period. In this way, you may still be able to attempt to work on your marriage without the worry of delaying the Divorce in the event you are not able to overcome your differences.
The date of separation becomes a very important one, not only for the purpose of establishing grounds for divorce but also from the perspective of determining some of the financial issues. It is for this reason that you should seek independent legal advice as soon as possible with respect to your separation. Contact us for a free 30 minute consultation with a qualified divorce lawyer to discuss your situation.
Conclusion
In order to best determine under what circumstances and in what court you should file for divorce, it is important to seek the advice of a qualified divorce lawyer in Ontario. This can save you significant time and money and avoid the added cost and delay of having to correct mistakes later on. The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute divorce consultation with one of our experienced divorce lawyers in Toronto, Mississauga & Etobicoke.