Legal Grounds for a Contested Divorce in Ontario – What You Need to Know

Understanding the Legal Grounds for Divorce in Canada

Canada operates under a No-Fault Divorce System, which means that spouses do not need to prove wrongdoing or misconduct to obtain a divorce. However, the Divorce Act provides three legal grounds under which a couple can seek a divorce:

1. Separation for at Least One Year

1. • This is the most commonly used ground for divorce in Canada.
   • Spouses must have lived separately for at least 12 consecutive months before a divorce is granted.
   • Couples can still live under the same roof during the separation period as long as they can prove they are no longer living as a couple (i.e., sleeping in separate rooms, no longer engaging in marital relations, and handling finances separately).
   • The court does not require proof of fault, making this the easiest and least contentious way to get divorced.

2. Adultery Committed by the Other Spouse

1. • If one spouse has committed adultery, the other spouse may seek an immediate divorce without waiting for the one-year separation period.
   • The burden of proof is on the spouse alleging adultery. This means they must provide evidence (such as written admissions, testimony, or other proof) that adultery occurred.
   • The spouse who committed adultery cannot use their own actions as grounds for divorce.

3. Mental or Physical Cruelty That Makes Cohabitation Intolerable

1. • This applies when one spouse has subjected the other to physical or psychological abuse, making it unsafe or unbearable to continue living together.
   • Evidence such as medical records, police reports, witness statements, or personal testimony may be required to prove cruelty.
   • If the court determines that the cruelty was severe enough to make cohabitation intolerable, the one-year separation requirement can be waived.

Common Reasons for a Contested Divorce in Ontario

Even when one spouse wants a divorce, the other may contest it for multiple reasons. Below are some of the most common points of conflict in contested divorce cases in Ontario.

1. Disagreements on Divorce Grounds

Although Canada has a No-Fault Divorce System, certain legal grounds can still be disputed:

• One spouse contests claims of adultery or cruelty. If a spouse files for divorce based on adultery or cruelty, the other spouse may challenge these claims in court, requiring evidence and legal arguments.
• Disputes over separation timelines. If a divorce is based on one year of separation, disputes may arise over the official date of separation. This can impact financial arrangements, division of property, and the ability to proceed with the divorce.

2. Child Custody and Parenting Time Disputes

Determining child custody and parenting time is often one of the most emotionally charged aspects of a contested divorce. Common disputes include:

• Legal custody and decision-making responsibilities. Parents may disagree on who has the right to make major decisions regarding education, health care, and religion.
• Parenting schedules and access rights. When parents cannot agree on parenting time (formerly known as access), the court must determine a fair arrangement.
• Best Interests of the Child Test. Ontario courts follow the Children’s Law Reform Act to ensure that all custody and parenting time decisions prioritize the child’s well-being, considering factors such as stability, emotional bonds, and parental involvement.

3. Child Support Disagreements

Child support is determined under the Federal Child Support Guidelines, but disputes can still arise, including:

• Parental income disputes. One parent may claim the other is underreporting income or refusing to disclose financial details.
• Shared custody arrangements. If both parents have nearly equal parenting time, disagreements may arise over how support payments are calculated.
• Extraordinary expenses. Special expenses, such as medical treatments, private school tuition, or extracurricular activities, can lead to disputes over financial responsibility.

4. Spousal Support Challenges

Spousal support is another common point of contention in contested divorces, especially when spouses disagree on eligibility, amount, or duration. Common disputes include:

• Whether a spouse qualifies for support. A spouse seeking support must demonstrate financial dependence and an economic disadvantage due to the marriage.
• Amount and duration of spousal support. Courts use the Spousal Support Advisory Guidelines, but factors like income disparity, employment status, and length of the marriage can lead to disputes over payments.

5. Division of Property and Assets

Ontario follows equalization of net family property under the Family Law Act, but disputes can still arise over:

• How assets should be divided. Spouses may disagree on the valuation of property, business ownership, or shared investments.
• The impact of marriage contracts or prenuptial agreements. A spouse may challenge the validity of a marriage contract if they believe it was signed under duress or without full financial disclosure.
• Inheritance and excluded property claims. If one spouse received an inheritance or owned a property before marriage, disputes may arise over whether it should be included in equalization calculations.

6. Allegations of Misconduct or Financial Dishonesty

In some contested divorces, allegations of misconduct or financial dishonesty add further complexity:

• Hidden assets and undisclosed income. One spouse may accuse the other of hiding bank accounts, underreporting income, or transferring assets to avoid fair division.
• Impact of domestic violence or restraining orders. If there is a history of abuse, a spouse may request restraining orders, supervised access to children, or exclusive possession of the family home, making negotiations more difficult.

How Ontario Courts Handle Contested Divorces

The Ontario Superior Court of Justice oversees contested divorces, following a structured legal process to ensure a fair resolution. Below is an overview of how Ontario courts handle contested divorce cases.

1. Filing for Divorce

• The divorce process begins when one spouse (the applicant) files a divorce application with the Ontario Superior Court of Justice.
• The application must state the grounds for divorce (separation for at least one year, adultery, or cruelty) and outline any claims for child custody, support, and property division.
• The applicant must also serve the divorce papers to their spouse (the respondent) within the required timeframe.

2. Response from the Other Spouse

• After being served, the responding spouse has 30 days (or 60 days if they live outside Canada) to reply.
• The respondent can:
  • Agree to the divorce and proposed terms.
  • Contest the divorce by disputing the grounds, claims, or proposed terms.
  • File a counterclaim, requesting different terms for custody, support, or asset division.

If the respondent does not file a response within the deadline, the applicant may proceed with an uncontested divorce by default.

3. Case Conferences and Settlement Meetings

• Ontario courts encourage spouses to resolve disputes through case conferences and settlement meetings before going to trial.
• A case conference is an informal meeting where a judge provides guidance, evaluates the issues, and encourages negotiation.
• If both parties are willing, they can opt for mediation or arbitration to settle their disputes outside of court.

4. Motions for Temporary Orders

• Since contested divorces can take months or even years to finalize, either spouse may request temporary court orders for issues that need immediate attention.
• Common temporary orders include:
  • Child custody and parenting time arrangements.
  • Child and spousal support payments.
  • Exclusive possession of the matrimonial home.
  • Financial disclosure requests.
• Temporary orders remain in effect until the final divorce ruling is made.

5. Trial Process

• If no agreement is reached, the case proceeds to a trial, where a judge hears arguments from both parties.
• The trial process involves:
  • Presenting evidence, including financial records, witness testimony, and expert reports.
  • Legal arguments from both spouses’ lawyers.
  • A judge’s final ruling on all contested matters, including custody, support, and property division.

Once a judge issues a ruling, both parties must comply. If either spouse disagrees with the decision, they may file an appeal under limited circumstances.

How to Strengthen Your Case in a Contested Divorce

Successfully navigating a contested divorce requires legal knowledge, careful preparation, and emotional discipline. Below are key strategies to help build a strong case.

1. Hiring a Toronto Divorce Lawyer

• A divorce lawyer with experience in contested divorces can provide legal guidance, ensuring your rights are protected.
• A lawyer can help:
  • Assess the strengths and weaknesses of your case.
  • Gather necessary documentation.
  • Negotiate with your spouse’s legal team.
  • Represent you in court if needed.
• Since divorce laws in Ontario follow the Divorce Act and Family Law Act, having a skilled lawyer can help you navigate complex legal procedures.

2. Gathering Strong Evidence

• Courts require clear evidence when making decisions on matters such as child custody, support, and property division.
• Essential documents may include:
  • Financial records: Bank statements, tax returns, pay stubs, and debt obligations.
  • Parenting schedules: Logs or records showing time spent with children.
  • Witness statements: Testimonies from teachers, doctors, or family members supporting your claims.
  • Communication records: Emails, text messages, or phone logs that prove co-parenting efforts or misconduct by the other party.
• Proper documentation ensures that your claims are well-supported in court.

3. Avoiding Emotional Reactions in Court

• Judges assess behaviour during divorce proceedings, and emotional outbursts can negatively impact your case.
• To present yourself effectively:
  • Remain calm and professional in court appearances and legal proceedings.
  • Avoid speaking negatively about your spouse in front of children or on social media.
  • Follow all court orders and legal advice to maintain credibility.
• A cooperative and reasonable approach can strengthen your position in negotiations and court rulings.

4. Exploring Mediation or Arbitration

• Before proceeding to trial, Ontario courts encourage spouses to consider alternative dispute resolution methods.
• Mediation: A neutral third party helps both spouses negotiate a fair agreement.
• Arbitration: A private arbitrator makes legally binding decisions, similar to a judge.
• Benefits of mediation and arbitration:
  • Faster resolutions compared to trial.
  • Lower legal costs and reduced court involvement.
  • More control over decisions rather than leaving them to a judge.
• Exploring these options before trial can reduce conflict and expedite the divorce process.