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Divorce in Ontario
Divorce and Separation is a very trying time for everyone involved. It is important to hire a professional divorce lawyer near you who can provide you with logical and important legal advice, as well as be patient as you go through this difficult time in your life.
Divorce in Ontario is regulated by The Divorce Act, R.S.C.1985, c.3 which dictates all the rules and procedures that both the divorcing couples and divorce lawyers throughout Ontario must obey.
Although many couples choose to divorce right away, under ordinary circumstances it is only necessary if you wish to re-marry. If that is the case, you will require a formal divorce judgement.
There are 2 kinds of divorce: Contested and Uncontested. Please see below to read the definition for each one.
There is only one reason to have a divorce in Ontario: The breakdown of a marriage. There are 3 ways in which you can prove it: One-year separation, divorce due to adultery or divorce due to cruelty. Please read below for more information regarding each one.
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Contested Divorce in Ontario
In order for the divorce to be finalized, spouses have to agree on certain subjects. They include children, marital assets, property, spousal support, etc. If they cannot agree, the divorce qualifies as a contested divorce. Note: These divorces can be resolved with or without a trial with the court. In cases like these, it is wise to hire a divorce lawyer who knows what they are doing and has your best interest at heart. They may suggest options like mediation and arbitration. If the divorcing couple still cannot decide and agree on the subject their divorce will be taken to court, and possibly continue to trial should it so require.
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Uncontested Divorce in Ontario
It is common for divorces to be uncontested in Ontario and throughout Canada. Thus, divorcing spouses can resolve their differences without resorting to court. This proves to be a more simple and peaceful way to divorce.
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One year Separation
The most common type of divorce is one-year separation divorce. It is exactly what it sounds like: you have to prove to the court that you and your spouse have been apart and separated for over 12 months. There is a list of requirements, or rather actors, that the court will look over in order to determine that you were, in fact, apart.
If you live in the same house, you can still qualify for this kind of divorce, especially if living under the same roof is due to financial means of either one of the spouses. The court will then make sure to consider other factors, including but not limited to physical separation, communication, presence or absence of joint activities, and filing income taxes.
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Divorce & Adultery
Adultery is defined by Oxford Languages Dictionary as voluntary sexual intercourse between a married person and a person who is not his or her spouse. You cannot use your infidelity as grounds for divorcing your spouse. All this to say, if you can prove that your spouse has indeed cheated on you, the court has the right to waive the one-year waiting period and grant the divorce on the spot.
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Divorce & Cruelty
IF YOU ARE A VICTIM OF ABUSE OR ARE IN DANGER, PLEASE CALL 9-1-1
If your spouse has been cruel to you during your marriage, you may be able to get a divorce right away. The Ontario Court of Appeals' ruling from 1970 stated that if a spouse, by his or her behaviour, causes malicious or unnecessary pain to the physical, emotional or mental state of the spouse, they may be considered guilty of cruelty. They will conduct a subjective test, to see whether or not the health of the affected spouse had been negatively affected. Ironically enough, it seems that deteriorating the spouse's health is a requirement for a cruelty-based divorce to go through.
The court also made sure to heavily underline the fact that the behaviour has to be of dangerous and heavy nature, and not just an argument or repeated silly behaviour. The behaviour has to have made it impossible, or even dangerous to cohabitate with your spouse. Your whole marriage will be considered, especially if the cruel behaviour is constant snarky remarks, complaints, accusations, etc.
Division of Property, Assets and Matrimonial Home: Explained
Division of property usually occurs when a marital relationship ends. In Ontario, such a relationship is considered equal, and as such, both partners are entitled to an equal split in terms of properties and assets. Assets usually include things like your car, your home, pension plan, insurance and others.
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Here’s how it works
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Anything that you have owned before getting married, any increase of the value will be split in two.
For example, you owned a toaster. Let's say you bought it for 50$, and during your marriage, its value increased by another 50$. When splitting the assets upon the termination of a marital relationship, that 50$ would be split in half to each spouse, so 25$ to each one.
This same rule applies to the family home. The full amount of home value must be split, even if you have received it as a gift, inherited or owned this home previously to get married.
This money, the owed payment to the spouse, is called an equalization payment, also recognized as equalization of the net family value under the Family Law act.
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2. You can agree on how to separate everything in a separation agreement
So, going to court is a long procedure, which usually costs a lot of money. So, it is important to correctly and accurately draft a separation agreement upon terminating a marital relationship with your spouse and make sure to include details about separating assets and properties, so that both spouses can agree and be satisfied with what they receive as a result of the separation.
This agreement must be drafted accurately and precisely because nobody wants unsatisfied people arguing over who gets a shower curtain and who gets the soap. Both spouses must have their lawyer look over the agreement, to make sure that everyone is happy and the separation is as unproblematic as possible
Sutton Law has had extensive experience with drafting separation agreements and knows its way around. Please consult our Separation page to learn more about separation agreements and what Sutton Law can do for you.
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What is an FRO in Ontario?In Ontario, a "FRO" is a common term you will see in any family law book or any Ontario family law office, and it stands for Family Responsibility Office. It is an agency responsible for enforcing support payments. As a result, when spousal support or child support orders are filed with the FRO, the FRO becomes responsible for collecting and disbursing the support. The FRO does not deal with issues related to custody, access, or equalization payments. The FRO's role is to collect, distribute, and enforce support orders for children and spouses. If you have an issue regarding spousal or child support, require filling out forms or have a matter regarding the Family Responsibility Office, call us now at 647-492-4929, or book a free 30-minute appointment to discuss how our family lawyers at the Sutton Law office near you can help you with your case.
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What is an FLA in Ontario?An FLA is another common term among family lawyers in Ontario. The legislation passed by the Ontario Legislature in 1990 is known as the Family Law Act. As it stands, it governs the rights of spouses and children in regards to property, support, inheritance, prenuptial agreements, separation agreements, and other family law matters. If you have any problems regarding settling in the division of property, custody of children, need to draft a separation agreement or any other family law matter, call us now at 647-492-4929 or book a free 30-minute appointment to discuss how our family lawyers at the Sutton Law office near you can help you with your case.
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What are the Family Law Rules in Ontario?Family Law Rules is a codex of rules that the family law lawyers and any kind of family law offices across Ontario follow. It states which form you have to fill out and where to send them, as well as the procedures in the Ontario Family Court. If you have any questions regarding which forms you require to fill out or need advice on your matter, please call us now or book a free 30-minute consultation with our office in order to determine how the family lawyers at the Sutton Law office near you can best help you with your matter.
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Is it possible to divorce without the consent of my spouse?In short, maybe. It's complicated, and it would only be granted on certain conditions. To get a divorce without the consent of your spouse, you must follow the route of Divorce due to adultery or due to cruelty. Each of these is extremely hard to prove due to circumstantial evidence, but if you manage to prove it, the court has the authority to grant you the divorce immediately. Important note: You cannot apply for these if you are the one that cheated or are considered to be cruel. Divorce can still be obtained if you file for divorce without knowing your spouse's whereabouts. However, you must first make every effort to locate your partner. You can apply to the court for an order for substituted service if you are unable to locate your spouse. A substituted service order describes how you must notify your spouse of the divorce filing. The judge must know that you have done everything in your power to find your partner before he or she will grant you a divorce. Upon making all efforts to locate your partner, the divorce will be granted. If you have any questions regarding any of the divorce procedures, notifying your partner or any other issues related to divorce paperwork and filing, call us at 647-492-4929 or book a free 30-minute consultation to see what our divorce lawyers at Sutton Law office near you can do to help you during this difficult time.
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I or my spouse no longer live in Ontario. Can we still divorce?Depends. Providing your spouse satisfies the ordinarily resident requirements and still lives in Ontario, the court can still grant a divorce. You may also apply for a divorce in your new place of residence. However, this is only possible if you have lived in your new place of residence for over a year and satisfy the ordinarily resident requirement.
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What paperwork do I need for a Divorce in Ontario?The most important thing you need to get a divorce in Ontario is your marriage certificate. It is crucial to have the original copy or one issued by a governmental agency responsible for issuing certificates. If your original certificate is lost or you only have a photocopy, you must do your best to get a replacement. Even if your efforts fail, you can still obtain a divorce. If your current marriage took place outside of Canada (there are ways around this if it is impossible to obtain such proof now if your previous marriage took place outside of Canada).
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Is a separation agreement mandatory?A separation agreement is strongly recommended, as it is crucial that you are able to protect yourself, your rights and your assets during a separation. All of the things you agree upon should be in writing, and it is highly preferable that you hire a separation lawyer to do that, as it will be more accurate and clear, thus reducing the risk of conflicts. It is important that you and your spouse agree on the subjects that you need to discuss upon separating, such as property, taxes, children and other assets. Court proceedings are long, expensive and tiring. However, if you want to protect yourself or you and your partner disagree on certain topics, you may want to consider the possibility of hiring a separation lawyer that can help you draft the separation agreement just in case things go haywire.
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Do I need a separation agreement before applying for divorce?Upon divorce, the court will require proof that you and your spouse are living separately and apart. They will request proof of that, and although your taxes filed separately may be all right for the proceeding, it s important that you separate all of your assets and figure out a schedule for parenting time with children. Thus, the court won't need to spend a lot of time on your case, and we can reduce the chance of needing to go to court to discuss certain things. Thus, it is strongly recommended that you have a separation agreement before applying for divorce, as this shows that you, as a couple, have been living separately and apart, have figured out and separated all your assets and have an appropriately scheduled Parenting time with children if you have any.
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What to include in my separation agreement?Technically, a good separation agreement consists of terms and conditions regarding your children, assets and finances. It is important to have those conditions clearly drafted and written down, to reduce the risk of future conflicts and be truly living independently of one another. It is highly recommended that a separation agreement be drafted by a separation lawyer. Call us Now at 647-492-4929 or book a free 30-minute appointment to see how our law office can help you with your matter.
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Do I need to hire a separation lawyer to get a separation agreement?It is strongly recommended that you hire a separation lawyer when drafting a separation agreement. It is important to make sure to include all the elements with all the details included. A properly drafted separation agreement will not only help decrease the chances of conflict between you and your spouse but also prove to the court that you both are living truly separately and apart. Getting a lawyer's expertise has never been a bad idea. Call us now at 647-492-4929 or book a free 30-minute appointment to learn how our separation lawyers can help you!
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How do I get custody of my children?Courts have the power to change custody and access orders when a change in circumstances has led to a change in the schedule. In some cases, primary custody can be given up by consent, for example, if the custodial parent becomes ill, loses his/her job or the child is more likely to spend time with the non-custodial parent.
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How to calculate Child Support in Ontario?Amazing Question. To calculate the amount of child support that should be paid, both the Divorce and the Family Law Act use O. Reg. Rule 391/97 set out in the provincial Child Support Guidelines, considering also the federal Child Support Guidelines in SOR 97-175. For the amount of child support to be calculated, the paying parent's total income will be considered, as well as the number of children. The recipient's income will only be required in some situations, but that is not always the case. If you need help in calculating child support, Sutton Law can help. We cover the Toronto and GTA area, as well as the Ottawa region. Feel free to contact us at 647-492-4929 or book a free 30-minute consultation with our office to learn how we can help you with your matter.
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Do I have to pay child support while I'm unemployed?If you, as the paying parent, lose your job, you will probably still receive Employment Insurance payment from the government. In Canada, if you lose your job, you will still be required to pay child support, although that amount would be lowered due to your lower income, in order to still be able to provide for your child(ren).
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When does Child Support end?It is the parent's responsibility to pay child support until the child turns 18 or becomes independent. If the child no longer relies on the parents, is not applying to school or university, or has moved out of the home and has a job to support himself or herself, then he or she is no longer a child of the marriage. In determining the amount of child support if the child is pursuing post-secondary education, the court will evaluate the earning potential of the paying parent and the child's financial and emotional dependency.
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If we share custody of our children, do I need to pay support?Shared custody or shared parenting time refers to the parenting time the child spends with both parents during a given year. Under Section 9, the court determines how much support should be paid. For each spouse, the amounts are listed in the applicable tables. Parenting time or shared custody arrangements increase costs. Support is requested for each spouse's child or children, taking into account their conditions, means, needs, and other circumstances. Both the income and the number of children of the paying parent will be taken into account by the court. They will then review the Tables in the Schedule. It is important to keep in mind that the guidelines are law, not just advisory, so they will always be considered. The courts will allow deviating from the table amounts if there is a good reason to do so.
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What happens if you don't pay child support?The Family Responsibility Office, further referred to as FRO, was created under the Family Responsibility and Support Arrears Enforcement Act and is responsible for enforcing child support payments. This would be the office that will hold you accountable if you are late or won't pay the agreed-upon child support amount. Firstly, we'd like to make sure you understand that your child has a right to be supported by both of their parents, and it is your duty as a parent to provide the necessary funds for the child to be comfortable, and your duty as an ex-partner to help the other parent provide for the child you both created. Now, *clears throat*... Any support order made by an Ontario court as well as any support stipulation in a domestic contract that is submitted to the courts will be enforced by FRO. Once a support obligation has been established with FRO, that organization serves as a middleman for all payments. Support payors send support payments directly to FRO (often, FRO garnishes the payor's salary), and FRO subsequently sends those funds to the receiving parent. Unless parties specifically and in writing agree to leave FRO, this is the situation. If the payor spouse is not paying payments, the receiver spouse will not get child support. But the FRO has the power to demand payments if they are not being made. To seek payment, FRO may take one or more of the following actions: Suspension of the payer's license; Garnish a payor's salary or any government monies received, such as old age security payments, employment insurance, Canada Pension Plan benefits, and refunds of income taxes; Take away from the payor's bank accounts or half of a joint account that they own; Report the payer to a credit bureau (making it challenging to receive future loan approval); Suspend the passport of the payer; Any federal license, such as a pilot's license, must be suspended; Put a personal property lien on the payor's property, which later may cause authorizing seizure and sale of said property; The payor should be reported to any professional or vocational organizations to which they are a member; The failing payor may be hauled back before the court and found in contempt of the support order if the FRO is unable to compel payment via any of these methods. If found guilty of contempt, a fine or jail time may be imposed. If the FRO is unable to compel payment in any of these ways, the defaulting payor may be brought back before the court and found in contempt of the support order. Contempt is punishable by a fine or jail term, depending on the circumstances. When FRO is unable to find any income to garnish, one common enforcement strategy is to suspend the payor's driver's license. Due to such suspension, the payor may later encounter significant difficulties in obtaining a job and generating the necessary revenue to pay the support arrears. The FRO must provide the license holder with 30 days' notice before suspending it. Please get in touch with FRO if you are a support recipient and you haven't received your payment by the due date. They can let you know if the money was indeed made but only arrived late or if the payor is behind on their payments. If the payor is behind on payments, you must fill out a Statement of Arrears, specify the amount outstanding, and send it to FRO. Any support that the payor owes you from a time before the support order was recorded with FRO can also be included in the Statement of Arrears.
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How is division of property and/or assets different for common law partners?Family law, which regulates the division of property and assets after the end of a marital relationship, regulates just that, marital relationships. Thus, common law partners are entitled to only what they brought into the relationship. ​As a means of preventing unjust enrichment, if you believe that you significantly contributed to the value of an asset owned by your partner (like a home you shared with your partner, a pension, or a savings account, for example), you can file a constructive trust claim. Beneficiaries of constructive trusts are entitled to the property in a specific asset, such as a marital home. If you have any questions regarding certain regulations of the Common Law, please visit the common law section of our website, or book a free 30-minute consultation to discuss what we can do for you. You can also simply call us at 647-492-4929.