Divorce in Ontario
How the process of a divorce in Ontario works
The dissolution of a marriage is going to cause upheaval in a couple’s life. When children are part of the equation, then those upheavals are compounded. Before initiating a discussion with your spouse about ending the marriage, it might be helpful to talk with an experienced divorce lawyer. You will want to go into those early discussions armed with as much information as possible. That begins with understanding how the process of a divorce in Ontario works.
Simple Divorce in Ontario or Contested Divorce in Ontario?
There are many ways to tackle your separation case and each route will depend upon the nature of the case, the outstanding issues, and more importantly whether you and your spouse are co-operating or amicable about the separation.
When filing for a simple divorce in Ontario, you are basically asking the court for divorce only, without making other claims such as spousal support or property division. This is the most common type of divorce application in Ontario and is usually referred to as an uncontested divorce because both spouses are co-operating and no one is contesting the divorce.
In some cases, when one spouse files for a simple divorce in Ontario and serves the other spouse with the divorce Application, the other spouse may not agree to the divorce filing because of various reasons. In this case, the other spouse can file an Answer in court in order to make additional claims in the case, such as a claim for spousal support, child support, or property division. In this situation, the Divorce in Ontario becomes “contested” since there are now claims being made which need to be resolved in court or by negotiation.
A very affective way to separate smart in Ontario is to resolve all of the outstanding issues, such as child support, spousal support and property division by drafting a Separation Agreement out of court. In this way, you can resolve all of the issues outside of a potentially lengthy and expensive court process and then file for a simple divorce in Ontario.
Who is Eligible for a Divorce?
The applicable Canadian divorce laws are the same in Ontario as they would be throughout the rest of the country. You don’t have to be a Canadian citizen to file for divorce here, but there are three important criteria that need to be met to move forward.
- The couple had to be legally married in Canada.
- There has to be intent to be permanently separated from each other. If there is already a separation, then it has to be agreed between the parties that there is no scenario that would have the couple getting back together again.
- One of the spouses has lived in Ontario for at least one year before filing the divorce application.
There is a potential exception to the “living in Ontario” requirement. If the couple lives outside of Canada and in a country that doesn’t recognize the legal Canadian marriage, then there might be an allowance under the Civil Marriage Act that can help facilitate the divorce. This is the perfect situation to discuss with an experienced divorce lawyer. They will be in the best position to advise you as to whether your situation meets the divorce criteria.
There might be a situation where a couple has not been married but are living together with children. If that couple has decided to separate and there is no hope for reconciliation, then they can enter into a formal separation agreement. The laws of child custody and support would come into play with that type of agreement.
Reasons for Obtaining a Legal Divorce
There might be a long list of specific reasons why you are getting a divorce. As far as the courts are concerned, you only have to meet one of three conditions:
- You and your spouse have been separated for at least one year and both agree that the marriage is over. Please note that you can still be living under the same roof and be considered separate. Many couples are separate but live under the same room for economical reasons. You can also start the divorce application at any time after separating, however the divorce will be finalized at the one-year separation date.
- Your partner was unfaithful and your can’t foresee ever regaining their trust. This ground is “adultery” and you do not need to wait one year after separation to file for divorce under this ground.
- There have been instances of physical or mental cruelty that makes living under the same roof unrealistic.
With those last two factors, you would have to prove to the court that those conditions exist. This might require submitting supplemental evidence such as investigative reports, medical records, or police reports of domestic abuse calls. However, in our experience, we have noticed that the evidence required under these grounds has been different depending on the court reviewing your case.
Beginning the Legal Divorce Process
Talking with a lawyer that specializes in family law will help you formulate a plan to move forward with your divorce in Ontario. That lawyer will be able to guide you through the initial filing process. That involves filling out the divorce applications, submitting that form to an Ontario courthouse and paying the applicable court fees.
Once that application has been filed, you can begin to discuss issues relating to division of property. That will require making a list of all assets and debts available to your attorney. There might also be a need to factor in pension and retirement plans. If there are children in the family, then there will need to be a determination as to where the children should live, which parent should have custody, and what the support should be. Sometimes the issue of child custody can be contentious. That usually happens when there are unresolved issues between the parents. The goal should be to put the interests of the children first. After that, everything else can fall into place.