These days, it might seem like your wedding and the beginning of your marriage journey were part of another life. In the years since that joyful event, you now feel like this marriage is no longer serving you.
You need room to breathe. It’s time to explore alternatives to your marriage.
Unfortunately, divorce is a sobering reality for between 30% and 40% of married couples in Canada. Those who have decided to proceed with getting a divorce are intent on closing this chapter and breaking all legal ties with their spouse.
Does this sound like you? Read on for an essential guide to divorce in Ontario.
Reasons for Divorce
Many individuals disclose these personal reasons for divorce:
- the desire to re-marry
- dissatisfaction in the relationship
- getting married too young
- general incompatibility
Though these reasons can vary, they’re not necessary to disclose. All couples pursuing divorce desire the same outcome: happiness.
While happiness is a relieving end to a harrowing process, it’s important to remember that there are only three legal allowances for divorce in Canada:
- Separation for one year (can be mutual or a personal decision) with no sexual relationship allowed
- Adultery, a sexual relationship with somebody who is not your spouse
- Mental or physical cruelty, also known as abuse, which will require a high standard of proof for court
Once you have established your reason for divorce, you may proceed with the next steps. Refer to your local government office for filing requirements.
Legal Implications of Divorce
Ontario law accepts a petition for divorce if you can prove that you and your spouse have been separated for at least one year. “Separated” does not mean that the two of you have had to live apart for a year, especially in the instance of children. Instead, the act of “conscious uncoupling” and living “uncoupled” under the same roof will qualify as a legitimate separation.
According to the Canadian Divorce Act, you do not need to prove your spouse was at fault in order to be granted a divorce. However, claiming adultery or cruelty may require that you provide proof to the court.
Officially, while separation is a mutual agreement to live apart, a divorce is not official until it is approved by the court. This means that a marriage is not technically over until a judge grants you a divorce. Divorce proceedings may be stopped at any time.
An uncontested divorce is a relatively straightforward process that may minimize negotiation and court proceedings.
Regardless of the reason for divorce, the Divorce Act states that an individual’s entitlement to property or child custody is not associated with the reason for separation. For this reason, a divorce attorney is highly recommended to proceed with a settlement.
Different Paths to Divorce
Divorce is never easy. However, while the traditional picture of divorce often evokes images of conflict, pain, and frustration, there are actually different approaches to divorce in Canada.
Divorce mediation is a great option for uncontested divorce proceedings that involve two amicable and communicative parties.
Mediation is an alternative to court that allows a couple to appoint a neutral third party or mediator to assist them in reaching a mutual, voluntary settlement. In divorce mediation, the third party does not make the decision. This decision must be made voluntarily by the parties that are requesting divorce proceedings.
In meditation, parties will discuss:
- Separation agreements
- Custody and access to children
- Division of property
- Spousal and child support
A voluntary settlement becomes a binding contract once both parties have made a settlement agreement, and once it is brought to the court. Remember, only the court has the ability to finalize a divorce.
Similar to divorce mediation, collaborative law is a combination of mediation and negotiation to reach a divorce agreement. In this arrangement, spouses will often hire a divorce coach, financial specialist, and child specialist to assist in the decision-making.
Most collaborative law arrangements will require a “no-court agreement.” This agreement allows the attorneys of either party to withdraw from the case if either spouse exits the agreed-upon collaborative process to begin litigation in court.
This option is not recommended for spouses who are unwilling to communicate or who have experienced domestic violence or cruelty.
Divorce litigation requires a family court to review and resolve all divorce agreements. This is a traditional path for spouses who cannot agree on a settlement.
Unlike mediation or collaborative law, litigation requires a judge to make decisions for the couple filing for divorce. Separation dates, child and spousal support, and child custody will all be determined by a judge in this case.
Litigation is a public record and will result in court-ordered arrangements that will affect your family for years. It is a complex process that requires the assistance of a qualified attorney to navigate efficiently.
While a very common path to divorce, litigation can become costly and combative. It’s important to consider your preferred outcome before selecting litigation as your method of choice. This process may also be a lengthy one, as you are expected to operate on the attorney’s and court’s timelines.
Steps to Getting a Divorce
An Ontario divorce is a legal option for those who meet the following criteria:
- Your marriage took place in Canada
- Your marriage took place in another country and either you or both of you lived in Ontario for at least one year immediately before applying for a divorce
- You intend to separate permanently from your spouse, or you have already separated and have no intention of getting back together
If you meet the criteria, you may follow the steps to begin the divorce application process. Most parties will hire a trusted lawyer at this point in the process to assist with the various laws, loopholes, and paperwork required by the province. Generally, the average process includes:
- Filling out the necessary forms to begin the application for divorce (may be done by your divorce lawyer)
- Describing child support arrangements, if applicable
- Determining your grounds for divorce, and if it will be a “no-fault” (requires one year of separation) or “fault” divorce (will require proof)
- Determining if the divorce will be “contested” (two applications required) or “uncontested” (only one application required)
- Filing associated forms with a copy of your marriage certificate
- Paying any required fees with the court located in your municipality
Once these steps are taken, the court will review your request. If applicable, your spouse will have 30 days to respond to the served divorce paperwork before proceedings continue. Once reviewed and finalized, the court will issue a Divorce Order and send a copy to you and your spouse.
If this is a contested divorce, there may be additional steps required as representatives of both parties work to come to agreements on spousal support or child support.
Even a smooth, uncontested divorce process can take several months. A Divorce Order is official on the 31st day after it’s granted by the court, and after a one-year period of separation has elapsed.
Why Use a Divorce Lawyer
Though many couples proceed with divorce under good terms, it’s best to refer to a divorce attorney to assist with the legal aspects of the process. It is not recommended to represent yourself during traditional divorce proceedings. Other reasons for hiring a lawyer include:
- Less stress during a complex, formal process
- Fewer mistakes in navigating a complex legal system
- An expedited process as an expert minimizes delays and invalid paperwork
- Expert divorce advice with somebody who has walked through this process countless times
- The creation of a legally binding agreement for your own protection
Because the Divorce Act does not involve the sharing or splitting of property or debts, you will want to refer to Ontario law to resolve this aspect of the divorce proceedings. A qualified divorce attorney will be able to assist with creating a statement of net worth that includes a formal assessment of your assets, liabilities, costs, and income.
When Getting a Divorce is Your Best Option
If you are feeling overwhelmed, you aren’t alone. Divorce cases increased by 30% during and after the pandemic. Canadians seeking divorce are hiring lawyers to assist with formal proceedings and in securing a financially sound future for themselves and their families.
If you feel confident in pursuing divorce as a next step, it’s time to talk to an expert who can help you through the complexities of getting a divorce. Request a call with our team, and receive a trusted case evaluation today.
Minhas Lawyers LLP is a multi-practice law firm based in Mississauga. We advise and represent clients across various segments and practice areas.
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