FREQUENTLY ASKED QUESTIONS (FAQ)
Divorce & Separation
How do I get a divorce?
The process to obtain a divorce depends on an individual's situation.
In most cases, there is a mandatory one year separation period that must be satisfied before a judge will grant you a divorce order. The application for divorce can be started prior to the end of the one year period of separation.
Where another basis for the breakdown of the marriage has been established, such as adultery or mental or physical cruelty, the court can grant the divorce at any time without the requirement of a one year period of separation, although additional steps will be necessary and the court will require evidence.
In order to legally end your marriage, you must apply to the court for a divorce. An application for divorce can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice.
Do common law spouses and married spouses have the same legal rights when separating?
Common law spouses and married spouses have the same legal rights on issues related to child custody and access, child support, and spousal support. However, the rules on division of family property differ greatly for married couples and common law spouses.
What do I need for my first meeting with a lawyer?
The first meeting between you and a lawyer is a fact-gathering session in which the lawyer will ask a lot of questions to complete the history they need as a basis for advising you.
You can make it easier for your lawyer and yourself by preparing information before the first meeting to provide to your lawyer. These include:
Full legal names and birth dates of the spouses;
Full legal names and birth dates of any children of the marriage and any children from prior relationships; information about the past, present and proposed residence of the children; information about the education of the children – including name of current school and grade of child;
Addresses, telephone numbers, email addresses of all parties;
Date and place of the marriage, including the original or a copy of the marriage certificate if available;
Information about any health problems, disabilities, or special needs;
Information about education, work history, and current employment of each spouse;
Information about the prior marriage of either spouse, including a copy of a divorce order or divorce certificate dissolving a prior marriage (if possible), and information about any continuing financial obligations;
Dates and durations of any previous separations;
Information about any previous legal proceedings between the spouses or involving any of the children;
Information and copies of any marriage contract or co-habitation agreement between the spouses;
Information about any attempts at reconciliation or marriage counselling, including the name and contact information of any counsellors
If domestic violence is a factor, dates and places where incidents of violence occurred; where and when any medical treatment was obtained, whether there was any police involvement, and if so, dates and places.
We ask that our clients bring at least the last year’s tax return (three years of tax returns if possible), information about current income, a list of any significant assets and liabilities of the spouses.
What reasons do I need for a court to grant me a divorce?
In Canada, there is only one ground upon which a divorce may be obtained – the breakdown of the marriage. Breakdown of a marriage is established only if:
- the spouses have lived separate and apart for at least one year prior to the court making a determination of the divorce application and were living separate and apart at the beginning of the proceeding; or,
- the spouse against whom the divorce proceeding is brought has, since the start of the marriage, either (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.
The vast majority of divorces in Canada are granted based on the parties having separated for al least one year. Parties do not need to provide any other reason to the court.
How long does it take for me to get a divorce?
The time it takes to obtain a divorce depends on how long the spouses have been separated and on what other claims need to be decided by the court.
A divorce will not be granted unless you have been separated from your spouse for at least one year or you have established one of the other bases for a breakdown of the marriage (adultery or mental or physical cruelty).
If you have already been separated for at least a year, an application for divorce that does not include other claims, such as custody or access, support or division of property, can usually be completed within four to six months.
If the divorce application includes other claims, the time that it takes to complete the divorce process will depend on how complicated the issues are and on the ability of the parties to reach agreement on all or some of the issues.
What is the difference between a contested and an uncontested divorce?
An uncontested divorce is one involving the spouses, or one of them, only seeking a divorce without asking the court to decide the other issues arising from the breakdown of the relationship – such as support, division of property, child access and custody. This occurs in situations where the parties have agreed to resolve all these issues outside court, by reaching a separation agreement. As a result of resolving all of these issues, the parties may proceed to receive an uncontested divorce quickly and easily. An uncontested divorce may also arise when one party files an application for divorce and the other spouse fails to respond within the stipulated time.
A contested divorce is one where the spouses have asked the court for a divorce, but also to resolve outstanding issues arising from the breakdown of the relationship. Contested divorces are generally much more drawn out than uncontested divorces and requires each party to file their necessary documentation presenting their positions on each issue the parties are arguing over.
In some cases, a party may bring a motion to sever the divorce from the corollary issues if there is good reason to do so. Granting such will allow the court to proceed with the divorce order and deal with the contested issues separately.
Can I be considered separated even though my spouse and I still live together?
You may be considered to be living separate and apart while continuing to live in the same home, although it will depend on the facts in your case. The courts recognize that spouses might have economic reasons for living in the same residence.
Generally, if the couple continue to live together, the courts require clear evidence that spouses are no longer living together in a spousal relationship. Courts will look at various factors, including:
- The financial links between the parties;
- Whether the parties eat meals together;
- The services the parties perform for each other;
- Whether the parties attend social functions together;
- Whether the parties celebrate special occasions together;
- Whether the parties vacation together;
- Whether the parties continue to have intimate relations with each other;
- Fidelity of the parties to each other and whether the parties start having romantic relations with others;
- The shared use of assets by the parties;
- Parties’ behavior towards one another in the presence of other persons;
- How the parties refer to themselves in documents; and,
- Steps taken towards the legal termination of their relationship
These are only some of the considerations that court will look at in determining whether spouses are separated.
Can I get a divorce order if there are issues from the marriage remaining to be resolved?
It may be possible to obtain a divorce order before the other issues in the divorce application have been decided. This may be necessary in cases where one of the parties seeks to remarry. A party can request that the court sever the divorce from the other issues and grant a divorce before deciding the other issues. This can be done by either starting an application for divorce or, if an application has already been started, bringing a motion to ask for a divorce order.
However, the court may not grant the divorce before the other issues have been decided. For example, if there are children of the marriage, a court will not grant a divorce until the parties have shown that they have made adequate arrangements for child support.
I am in a common-law relationship, do I need to obtain a divorce?
No, only married spouses need a divorce. A person in a common law relationship may separate and marry another person without the requirement of a divorce.
People in common-law relationships may have other issues which arise out of their separation – including custody and access, child and spousal support, and property issues. These issues may be resolved through an agreement by the parties or by the court by bringing an application.
What will the court consider when making a parenting order relating to access or custody?
The best interests of the child are the only consideration the court may take into account when making a parenting order, just as the best interests of the child are the only consideration when the court makes orders about custody and access under the current Divorce Act. Starting 1 July 2020, the court will have a long list of factors to take into account when deciding what is in a child’s best interests. These factors include:
- the nature of the child’s relationships with each spouse, with siblings and with other important people in the child’s life;
- each spouse’s willingness to encourage the child’s relationship with the other spouse;
- the child’s views and preferences;
- the child’s cultural and linguistic upbringing, including the child’s Indigenous heritage;
- the ability of each spouse to care for the child;
- the presence of any civil or criminal court actions and orders that are relevant to the wellbeing of the child; and
- the presence of family violence.
When considering these factors, the court must give primary consideration to the child’s physical, emotional and psychological safety, security and wellbeing.
Is there a difference between a “parenting order” and an “access” or “custody” order?
The term “parenting order” was introduced in amendments to the Divorce Act that will take effect beginning on July 1, 2020. Starting from that date, the term “parenting order” will replace “custody order” throughout the Act.
The change in language was an effort to emphasize the best interests of the child, beginning July 1, 2020, the Divorce Act now features concepts and words that focus on relationships with children, such as parenting time and decision-making responsibility.
What criteria are used by the court to determine custody?
The merits of an application for custody of a child will be determined solely on the basis of the best interests of the child. The Children’s Law Reform Act sets out the needs and circumstances of the child that a court must consider in determining the best interests of a child. These include:
the love, affection and emotional ties between the child and,(i) each person, including a parent or grandparent, entitled to or claiming custody of or access to the child, (ii) other members of the child’s family who reside with the child, and (iii) persons involved in the child’s care and upbringing;
the child’s views and preferences, if they can reasonably be ascertained;
the length of time the child has lived in a stable home environment;
the ability and willingness of each person applying for custody of the child to provide the child with guidance and education, the necessaries of life and any special needs of the child;
the plan proposed by each person applying for custody of or access to the child for the child’s care and upbringing;
the permanence and stability of the family unit with which it is proposed that the child will live;
the ability of each person applying for custody of or access to the child to act as a parent; and,
any familial relationship between the child and each person who is a party to the application.
The court will also look at the ability of a person seeking custody to act as a parent, including whether that person has at any time committed violence or abuse against their spouse, another parent of the child, a member of the household, or any child.
This list is not exhaustive. The court may consider any evidence relevant to the best interest of the child.
How do I change the custody or access terms in a court order?
To change custody/access in an order, you must apply to the court to do so. In order to succeed, you must show the court that there has been a material change of circumstances. If this change of circumstance is so significant that it renders the original order irrelevant or no longer appropriate, then the assessment of the whole situation is warranted and the court may agree to change the custody or access terms in a prior order.
Can members of a child’s extended family receive access to the child?
If one parents is attempting to restrict access of extended family such as aunts, uncles, grandparents, they may apply to the court for access. In order to succeed, these individuals must show that they held a close relationship to a child and that the child will be negatively impacted by the breakdown of this relationship.
Can I change my child’s name if I have custody?
In order to change a child’s legal name, there cannot be a current order prohibiting changing the child’s legal name, and the parent applying to do so must be the child’s legal guardian. If both of these are met, you may change a child’s legal age pursuant to the Change of Name Act, which allows a parent to change a child’s legal name if:
- Child is 17 or younger;
- Is not married; and,
- Lived in Ontario within last 12 months of making application, or since birth if the child is under one years old.
Your custody arrangement may stipulate whether consent or notice is required from the other spouse. If consent is required, then you must obtain the written authorization by that parent. However, if mere notice is required, you must only provide notice to the other parent and can proceed regardless of their discontent with the decision. For example, if you have joint-custody, then both parents must consent to the change. Lastly, if the child is above the age of 12, they must also provide written consent.
You should seek legal advice before seeking to change a child's name.
Do I have to pay child support?
Ontario’s Family Law Act imposes an obligation on every parent to provide support for his or her unmarried children who are minors or are enrolled in a full time program of education, to the extent that the parent is capable of doing so. The child support obligation of a parent are laid out in Part III of the Family Law Act.
An application for child support may be brought as corollary relief under the Divorce Act, as part of a divorce application, or under the Family Law Act.
When making a child support order, the court will recognize the purposes of order, which are a) recognize that each parent has an obligation to provide support for the child; and b) apportion the obligation according to the child support guidelines.
Note that an application for support, for a child and/or a spouse, can also be brought by the Ministry of Community and Social Services, a municipality, or a district social services administration board if they is or have provided benefits such as Ontario Works, ODSP, or under the Family benefits Act.
The court has the power to set aside the support provisions of a domestic contract and determine support if a) the provision results in unconscionable circumstances; b) the provision is in favour of someone who qualifies for social assistance; and c) there is default in payment of support at the time the application is made.
How is the amount of child support calculated?
In determining the amount of child support to be paid, the courts must do so in accordance with the Child Support Guidelines. These are federal and provincial regulations that govern all child support orders made under the Divorce Act or Ontario’s Family Law Act. The main feature of the Guidelines are the child support tables, which list the amount of monthly support to be paid based on a payor’s gross annual income and the number of children.
A quick way to calculate child support using the Guidelines is by using the Department of Justice’s Child Support Table Look-up link: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.asp
There are circumstances when the court can deviate from the amounts set out by the Child Support Guidelines. These include when the payor’s income is greater than $150,000.
In addition to the base child support obtained from the Child Support Tables, the payor may also be ordered to pay for extra-ordinary or special expenses. These include:
- Child care expenses incurred as a result of the custodial parent’s employment, illness, disability or education or training for employment;
- that portion of the medical and dental insurance premiums attributable to the child;
- health-related expenses that exceed insurance reimbursement by at least $100 annually, including orthodontic treatment, professional counselling provided by a psychologist, social worker, psychiatrist or any other person, physiotherapy, occupational therapy, speech therapy, prescription drugs, hearing aids, glasses and contact lenses;
- extraordinary expenses for primary or secondary school education or for any other educational programs that meet the child’s particular needs;
- expenses for post-secondary education; and
- extraordinary expenses for extracurricular activities.
How is property divided in a divorce?
It is important to note that, when dividing a property after separation, it is not the property itself that is divided, but the value of the property. The right of each spouse is to a payment of money, and not to a partition or transfer of property.
Once financial disclosure is exchanged by the parties, an accounting of the value of each spouse’s divisible property is made. The value of each party’s net family property is compared to that of the other party. This comparison will determine the amount of money that one party will pay to the other to satisfy that party’s property claims.
In some cases, the court may order or the parties may agree between themselves, to transfer property instead of, or to reduce, the amount of money that has to be paid.
Do I have to disclose all my assets to my spouse?
When it comes to court proceedings, the Family Law Rules state that full, ongoing disclosure in mandatory. This is a positive duty on each of the parties – requiring each party to take proactive steps to ensure they meet their obligation.
The courts have imposed sanctions on parties who fail to comply with their disclosure obligation – including by ordering those parties to pay costs to the other spouse or by making a negative inference against a party for failing to disclose.
The duty to make full financial disclosure also exists in the context of negotiating domestic agreements such as marriage contracts, co-habitation agreements, and separation agreements. Failure to make full financial disclosure by one party may allow the other party to bring an application to set aside the agreement for lack of disclosure.
How long do I have to bring a claim for division of property?
The Family Law Act states that an application for property division must be brought before the earliest of:
- Two years after a divorce is granted or when the marriage is declared a nullity;
- Six years from the date of separation
- Six months from the date of the death of a spouse
The court has the authority to grant extensions of time. However, this will require a party to convince the court that:
- There are prima facie grounds for relief;
- That the relief is unavailable because of delay that has been incurred in good faith; and,
- No person will suffer substantial prejudice by reason of the delay.
Am I entitled to spousal support?
There are three main circumstances where a party would be entitled to spousal support:
- The party had responsibilities during the relationship, such as primary responsibility for the care of the children or helping their partner build up their business or career. Because of this, that party sacrificed their chance to build their own career and suffered a reduction in their earning power. This is called "compensatory spousal support".
- The party has been left in need of support as a result of the breakdown of the relationship and their partner has enough income and assets to pay support. This needs based support is called "non-compensatory spousal support".
- The party is entitled to support due to the terms of a cohabitation agreement, marriage contract, or some other agreement. This is called "contractual spousal support".
What factors are considered in determining spousal support?
The court may decide that one spouse must pay support because of their ability to pay and the financial need of the other spouse. Another reason might be to compensate one spouse for the unpaid work that they did during the relationships, and the sacrifices they made to their career and ability to earn an income.
When it comes to determining the amount of spousal support and the length of time that support is to be paid, the court will consider:
the length of the relationship,
whether there are children and what arrangements have been made for them,
the roles the spouses played during the relationship,
the age of each spouse at the time of separation
The income of each spouse
The need of the spouse who is entitled to receive support
The ability of the spouse entitled to support to become self-supporting
The standard of living the spouses enjoyed during the marriage
The court will often consider the Spousal Support Advisory Guidelines (SSAG) in determining the amount and duration of spousal support. These guidelines provide ranges of spousal support amount and duration based on the length of the relationship, the income of the parties, and any support for children.
Support amounts are usually higher, and paid for a longer period of time, where:
- there are big differences between the partners' incomes,
- they lived together for a long time, and
- they had children.
I am in a common law relationship, can I get spousal support?
Both married and common-law spouses may be able to get spousal support, or may have an obligation to pay spousal support. If the spouses are not married, they must have cohabitated together as a couple for either:
at least 3 years, or
for any length of time if they were in a relationship of "some permanence" and had a child together.
Cohabiting means living together in a marriage-like relationship but without getting married. In determining whether a couple was cohabiting, the court will look at various factors, including:
- Did the couple live together?
- Did the couple have sex?
- Did the couple do household chores for each other?
- Did the couple present themselves as a couple socially?
- Did friends, family members and members of the community see the couple as being in a romantic relationship?
- Did one person support the other financially?
- Did the couple combine their finances?
- Did the couple act as parents to each other's children?
Can I change the amount or duration of spousal support set out in a prior court order or agreement?
Either of the person receiving support or the person paying support may apply to the court to change a prior court order or agreement.
The court requires that there be a material change in the circumstances of the party before it will consider changing the terms of a support order. Examples of material changes in circumstance include significant changes in the payor or recipient’s income, or changes to the arrangements respecting the children.
Is spousal support taxable?
Periodic spousal support payments are taxable for the party receiving the support and are tax deductible for the spouse paying the support.
Parties will sometimes reach an agreement for spousal support to be paid in a lump some payment. In that case, the lump sum payment is not taxable for the party receiving support and the payor cannot claim the payment as a tax deduction.
What is a separation agreement?
Many corollary marital issues may arise out of the breakdown of a marriage or common law relationship. These issues may include, but are not limited to, child support, spousal support, custody and access, and division of property.
Rather than going to court to solve these issues, a couple has the option the enter into a domestic contract which may resolve all or some of these issues. A separation agreement governs resolution to marital issues following the breakdown of the relationship. By negotiating a separation agreement, you may save yourself time and effort by limiting the need to go to court.
What can be included in a separation agreement?
A couple who have cohabited – whether in a legal marriage or not – may enter into an agreement once they are separated, and may agree to resolve their respective rights and obligations arising from the relationship. These include:
ownership in or division of property;
the right to direct the education and moral training of their children;
the right to custody of and access to their children; and
any other matter in the settlement of their affairs.
Can I or my spouse set aside a marriage contract or cohabitation agreement we have entered into?
A party to a separation agreement can apply to the court to set aside the contract, or a part of it. The court may grant the application if:
- a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the separation agreement was made;
- a party did not understand the nature or consequences of the separation agreement; or,
- otherwise in accordance with the law of contract.
The court also has the power to disregard any provision of a separation agreement dealing with the education or moral training of a child if, in the opinion of the court, it would be in the best interests of the child to do so. The court can also disregard any provision dealing with the support of a child if the court determines that the provision is unreasonable, having regard to the child support guidelines.
What can I include in a marriage contract?
In a marriage contract, a couple who are married to each other or who intend to marry may deal with:
- Ownership in or division of property;
- Support obligations;
- The right to direct the education and moral training of their children; and,
- Any other matter in the settlement of their affairs.
However, there are issues that cannot be contracted away in a marriage contract. A marriage contract cannot determine custody and access rights nor limit a spouse's right to possession of the matrimonial home (though it can limit ownership). There are also limitations on the determination of child support under a marriage contract.
What can I include in a co-habitation agreement?
Two persons who are cohabiting or intend to cohabit and who are not married to each other may enter into an agreement in which they agree on their respective rights and obligations during cohabitation, or on ceasing to cohabit or on death, including,
- ownership in or division of property;
- support obligations;
- the right to direct the education and moral training of their children; and
- any other matter in the settlement of their affairs.
There are limits to things that can be included in a co-habitation agreement. The cohabitation agreement cannot determine the custody and access rights of a party. There are also limitations on the determination of child support under a cohabitation agreement.
If a couple are parties to a cohabitation agreement and decide to marry, then that cohabitation agreement will be deemed to be a marriage contract. In that case, any provisions in that co-habitation agreement dealing with the rights of possession of the matrimonial home will no longer be enforceable.
Can I or my spouse set aside a marriage contract or cohabitation agreement we have entered into?
A party to a marriage contract or cohabitation agreement can apply to the court to set aside the contract, or a part of it. The court may grant the application if:
- a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
- a party did not understand the nature or consequences of the domestic contract; or,
- otherwise in accordance with the law of contract.
The court also has the power to disregard any provision of a marriage contract or co-habitation agreement dealing with the education or moral training of a child if, in the opinion of the court, it would be in the best interests of the child to do so. The court can also disregard any provision dealing with the support of a child if the court determines that the provision is unreasonable, having regard to the child support guidelines.