For some, divorce is an expected outcome while for others it takes them by surprise. Such a life changing situation has its own effects on the divorcing parties as well as on the children who are involved in the divorce. There are a number of reasons why marriages end up in divorce. In cases, where a divorce goes to court the one constant element is the judge. And as such, it is important to know what the judge expects in his court room. This article will discuss tips on how to conduct oneself during divorce proceedings carried out in court.
One of the first things any divorcing party needs to realize is that, it is important never to disrespect the courtroom, whether such disrespect is directed to your spouse, the staff and/or especially the judge. It must be noted that where the judge forms a negative opinion about you it is very difficult to change their mind especially without a lawyer on your side.
One of the first things to realize is that first impressions count. Therefore, from the moment you step in front of the judge, he or she forms an opinion about you and this is created by your appearance. From the manner in which you dress the judge is able to tell whether you respect the office he or she holds and represents and whether or not you respect the courtroom. It must be noted that your appearance speaks volumes about your marriage. Thus it is important to keep in mind that the courtroom is a formal place, therefore, it is necessary to dress appropriately.
Another aspect that falls under the issue of being respectful while in the courtroom is not disrupting the judge as this is disrespectful. Further, by all means resist the urge to tell the judge what to think. It is important that you bear in mind that the judge is an educated and intelligent person whose experience gives him or her the advantage of reading between the lines and discerning the truth of the matter. Further, like any other person no one wants to be told what to think. However, it must be noted that a lawyer is given some leeway in telling the judge what to think as lawyers are educated in the law.
Another aspect that must be noted is that the judge wants you to negotiate and settle issues on your own and frankly has no intention of telling you what to do with your life. Therefore, when making requests it is necessary to be reasonable as this goes a long way with the judge; as reasonableness always works in the direction of settlement.
One thing that sets a divorce apart is the presence of an experienced lawyer who specializes in divorce in Ontario. Lawyers have a lot of experience with judges and as such they are familiar with certain judge’s personal attributes as well as characteristics and personality. Therefore, this allows lawyers to know how to base their arguments in a way that speaks to the judges and bears positive light on you and your case.
SEPARATION AGREEMENT IN TORONTO
What is a Separation Agreement?
If you are contemplating a separation or are separated from your spouse or common-law partner, a domestic contract known as a ‘separation agreement’ may be drafted to make arrangements for issues such as:
- Division of Property (i.e. who gets to keep the car);
- Spousal support/spousal support releases and child support;
- The living arrangement of the children (i.e. custody and access).
- Parenting plans (i.e. religious issues, educational matters, travel etc.)
- Debts, pensions, medical/dental benefits, life insurance.
It is inadvisable to simply have a verbal agreement between two separating partners as it may be highly difficult to prove verbal agreements before a court of law.
A separation agreement Toronto is not a requirement to getting separated or obtaining a divorce. It primarily serves to provide definition and clarity in what can be a highly confusing and stressful situation. You do not need a lawyer to draft a separation agreement as long as it is signed by both parties in front of a witness and dated.
However, while you do not formally need a lawyer to draft a separation agreement in Toronto, it is highly recommended to retain a lawyer to draft a separation agreement as determining spousal rights and responsibilities upon the break down of a relationship maybe a highly complex task. Your lawyer will navigate you through the process to ensure you fully understand your rights and obligations under the separation agreement and that the separation agreement is clear, complete and legally enforceable.
If you cannot agree on the contents of the separation agreement, you may also choose to go to a mediator who will then mediate the issues you and your spouse or partner are facing and then try to come to solution that is agreeable to both.
INDEPENDENT LEGAL ADVICE AND SEPARATION AGREEMENTS
One lawyer cannot act for both parties who are in need of advice in respect of advising on the contents of a separation agreement in Toronto. The parties must obtain their own independent legal advice. The reason for this is that a lawyer cannot fairly represent parties whose interests are not aligned. As is often the case in family law litigation, there are significant difference of opinions when determining rights and responsibilities of the parties involved. Therefore, independent legal advice becomes vital before signing a separation agreement.
It is also advisable to obtain and execute an Independent Legal Advice certificates so that in the future, a party will be unable to claim that they did not understand the content of the separation agreement making it unlikely for the court to set aside the separation agreement in Toronto on that basis.
WHAT IS CONSIDERED A LEGALLY ENFORCEABLE SEPARATION AGREEMENT IN TORONTO?
Section 56(4) of the Family Law Act provides that a separation agreement will be found legally enforceable if all three criteria were present at the time the agreement was executed:
- significant assets and significant liabilities of both parties were disclosed at the time the agreement was made;
- both parties understood the nature or consequence of agreement made;
- the agreement was made in accordance to the law of contract. (i.e. the agreement will not be legally enforceable if it contains terms that are illegal)
CAN A SEPARATION AGREEMENT BE SET ASIDE?
The Family Law Act grants the court the power to set aside or nullify a Separation Agreement or any clause in that contract if:
- a spouse failed to disclose to the other significant assets, significant debts or other liabilities that existed when the Separation Agreement was made;
- if a spouse signs an agreement while being forced, coerced or under duress
- if a spouse did not understand the nature or consequences of the Separation Agreement; or
- if the Separation Agreement was not prepared in accordance with the law of contract.
Before you sign a separation agreement you must understand that the decisions made in this agreement will effect your future and your children’s future. A legally valid separation agreement must be abided by and will likely be upheld in a court of law in case of dispute. Therefore it is utmost important and best to have it created by and reviewed by a lawyer to ensure the protection of your rights.
Here is a list of helpful resources that you may review when deciding whether a Separation Agreement in Toronto is right for you:
Divorce and Separation
What you should know about Family Law in Ontario
What are my rights when separating?
Family Law Information Centres
Helping Children Cope
Collaborative Family Law
Court Locations and Addresses in Ontario
When filing an uncontested divorce in Ontario, there are two types of uncontested cases:
Uncontested Sole Divorce: When both spouses are in agreement about the divorce and do not oppose the divorce, either the husband or wife files the divorce papers with the court asking for the divorce. Once the papers are filed with the court, your spouse is served with the divorce papers. Your spouse then has 30 days to contest or challenge the divorce, or make a claim such as for support, property, custody, etc. If your spouse does not challenge the divorce within the required period, the divorce will proceed as “uncontested” and will be finalized by the Ontario court.
Uncontested Joint Divorce: The second way to proceed is to file a joint divorce. In this type of filing, both the husband and wife sign and swear the divorce papers, including the Affidavit of Divorce. Neither spouse is suing the other for divorce – you are simply asking the Ontario court to grant a divorce based on separation. In a joint divorce application, spouses can also jointly ask the court to include an order relating to custody, access, support if both spouses agree to the terms. Couples prefer filing a joint divorce because filing in this manner does not require serving divorce documents on the other spouse.
Divorce Time Frame: The time that it takes to process an uncontested divorce in Ontario varies based on a number of factors. One of these factors may be the courthouse in which your divorce papers are filed. Family courts across Ontario vary in the time they take to process applications. However, as a general time frame, if all the necessary steps are taken and the documents are filed on time, it takes about 2 to 3 months to process the entire uncontested divorce in Ontario.
Clearance Certificate: Once the 8A application for divorce is filed, a document called the “clearance certificate” is sent from the Central Registry of Divorce Proceedings located in Ottawa, Ontario to the courthouse in which the divorce application is filed. This Registry keeps nation-wide records of divorce applications filed after July 2, 1968. If there is another divorce application involving the same two spouses, the Registry lets the courts know. If there are no other divorce applications involving the two spouses, the clearance certificate is sent and the divorce process moves forward. For more information about the Central Registry, you can click here.
I hope we were able to give you some of the information you required in order to make your decision about the type of divorce in Ontario that you will be filing. Whether you are filling a sole divorce or a joint divorce, our Family Lawyer can process your case or guide your decisions. Here is a link to recent publications about Family Law on the Department of Justice website.
NOTICE AND DISCLAIMER: The material posted on this website is for informational purposes only and should not be relied upon as legal advice. If you are in need of legal advice relating to your particular situation it is highly recommended to consult with a lawyer.