Separation & Divorce

Married couples seeking a divorce in Ontario are subject to the federal Divorce Act, which states that a court may grant a divorce to parties where there has been a “breakdown of the marriage.” Unlike a separation agreement that can be finalized outside of court, only a court can grant a divorce. It is up to the parties filing their application for divorce to satisfy the court that there has been a breakdown of the marriage.

According to the law, a breakdown is recognized where the parties have been separated for at least one year or where the party filing the application proves that their spouse has committed cruelty or adultery. In practice, the vast majority of couples rely on the one-year period of separation as the ground for divorce.

Ontario family law provides for a “no-fault” approach to divorce. Therefore, regardless of the reason for divorce, or whether or not the divorce was one person’s “fault,” the parties’ entitlement to property division, custody and/or access to their children (now called decision-making responsibility and parenting time) and to support is not affected.

Where there are no complex issues involved (e.g., who will have custody, now called decision-making responsibility), a divorce application can take several months to finalize. However, where the divorce is based on separation, it will not be granted until the one-year period of separation has elapsed. Where there are more complex issues to be resolved, an experienced family lawyer can help guide you in the process and ensure that your rights are protected.

Contested Divorce 

In a contested divorce, there are many issues on which spouses are not in agreement with each other. Law Wise Family Lawyers in Mississauga, serving Brampton, Toronto and the Greater Toronto Area, have a thorough understanding of many legal issues that may arise during the divorce process. Some of these issues include:

In divorce cases where disputes exist, the proper court process has to be followed. In Ontario, divorce cases are governed by the federal Divorce Act and follow the Family Law Rules, the court rules for family cases. A divorce case that goes into litigation involves multiple meetings with lawyers and multiple court appearances before judges.

A contested divorce involves the following steps:

Mediation Options

There are different options available for reaching a settlement, such as collaborative law, mediation and negotiation, to decide on the issues regarding children, property, and other associated matters. Having a detailed discussion with your experienced family law lawyer can help you to understand all the possible options available to you.

Court Litigation

In a situation where spouses are not able to mutually agree on the issues, formal court litigation remains the only option. One of the spouses (the applicant) makes an application for divorce to the court, setting out what they are asking the court to order.

Trial

If the parties fail to resolve their disputes, a trial takes place. Having a family lawyer with you helps you present your case clearly and protect your rights. Trials are not a preferred option due to the significant time and costs they can consume and the fact that they are generally held in public.

Simple or Uncontested Divorce

It is a way of getting divorced without any litigation involved between the parties. In the majority of divorces, this is how the marriage ends. In a simple or uncontested divorce, both spouses come to an agreement on all their issues. Issues like how to manage child custody (decision-making responsibility and parenting time) and divide the assets are decided together and set out in the separation agreement. A simple or uncontested divorce is a simpler way of getting a divorce to end the marriage, because the court does not have to decide disputed issues. It is also usually less expensive, as there are no contested court hearings.

A simple or uncontested divorce can be an option if both spouses are communicative and open to negotiation. To pursue an uncontested divorce, you will need to agree on all the issues arising from the separation. Communication needs to be absolutely clear and transparent between the two parties. Child support is calculated under the Child Support Guidelines, and the court must be satisfied that reasonable arrangements have been made for the support of the children before it grants a divorce. For spousal support, lawyers and judges commonly use the Spousal Support Advisory Guidelines, which are not legally binding. In Ontario, the division of property between married spouses follows the equalization rules in the Family Law Act. It is highly recommended to negotiate and settle the divorce proceedings rather than going into time-consuming and expensive court litigation.

A Simple Divorce or Uncontested Divorce Involves These Primary Steps:

∎ It is essential that the spouses live separate and apart for a minimum of one year before the divorce can be granted. During this period, the spouses need to lead separate lives. Many spouses continue living in the family home but carry out their daily routines, such as eating and sleeping, separately.

∎ A written separation agreement is not legally required, but it is strongly recommended for spouses wishing to get an uncontested divorce. A properly drafted separation agreement sets out the legal rights and responsibilities of both parties during the process and afterward too.

∎ An application for an uncontested divorce or simple divorce can be filed once the spouses have separated, but the divorce will not be granted until they have lived separate and apart for at least one year. In a simple divorce, one spouse files the application and then the divorce application is served on the other spouse. In a joint divorce application, both spouses file the application together.

How Our Family Lawyers Can Help You

         ∎ Law Wise Family Lawyers will help you during the divorce process by:

         ∎ Determining your goals regarding the relevant issues in your case;

         ∎ Explaining to you the legal implications of a divorce and the process involved;

         ∎ Regularly corresponding with you to obtain updates and provide you with the status of your case;

         ∎ Negotiating on your behalf with the other party or his or her family lawyer;

We know that the breakdown of a relationship is a difficult time for all parties involved. Therefore, we strive to achieve a suitable resolution to the client’s dispute in a friendly and efficient manner.

Your family lawyer in Mississauga will provide you with personalized care and attention to deal with your matter.