Frequently Asked Questions on Divorce
Divorce Process
I'VE HAD ENOUGH" Should I start a Court
Application?
While there may be some gratification in "suing the..." and "I'll teach
them a lesson", it may not be in your best interests to immediately start a Court
Application without some type of attempt at negotiation.
The Divorce Act Section 9, indicates that a lawyer should discuss reconciliation and
inform the spouses of marriage counselling and guidance facilities available unless the
circumstances of the case are of such a nature that it would clearly not be appropriate to
do so.
The Act goes on to indicate that it is the duty of a lawyer to discuss the advisability
of negotiating matters dealing with a support order, or a custody orders and to inform the
party of mediation facilities.
Clearly the Divorce Act's aim is to try to negotiate if at all possible.
By negotiating you have an input into the final results unlike a Court Application
where the decision is in the hands of a stranger (Judge). There is also a possible
"heavy emotional toll" of participating in a Court "battle "that
people are not aware of.
From a very practical point of view costs of a Court Application are far greater then a
negotiated settlement.
So, unless there is no chance of any type of meaningful negotiation, then attempts to
settle prior to commencing a Court Application are advisable.
It is to be remembered that even after a Court Application has commenced, the
negotiating of a settlement is still a distinct possibility. A very small percentage of
Court Applications ever get to a final trial and most are settled along the way.
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What Should People Consider Before Filing for a Divorce?
Reconciliation
The parties should consider reconciliation if possible. Section 9 of the Divorce
Act requires lawyers to discuss reconciliation and to advise of available counselling
facilities. Should reconciliation not be appropriate, attempts should be made to
negotiation and settle all outstanding issues.
The following issues should be considered:
Custody
The best interest of the child should be paramount. Personal agendas and thoughts of
revenge should be put aside. Consideration of the child's residence and who makes
decisions should be reviewed.
Sole Custody
The child resides with one parent who makes all the important decisions, re: health,
education, and welfare.
Joint Custody
The principle residence is with one parent, but joint decision making.
Shared or Co-Parenting
The child resides equally with both parents, (or as agreed) with equal input into decision
making. The parties must be able to co-operate for this to work.
Access
Access is the right of the child. It is in the best interest of the child to visit with
and maintain a relationship with the non-custodial parent. Access is not affected by
failure to pay child support. Access should be reviewed as the child grows. Weekends,
mid-week, sharing holidays, vacation time, telephone and e-mail access should be
considered.
Child Support
Support is calculated pursuant to the Child Support Guidelines. The income of the payor
spouse is required annually to adjust support. Each party is responsible to pay their
proportionate share of Section 7 extra-ordinary expenses for such items as tutoring,
daycare, camp, etc. (in addition to child support.)
Spousal Support
Spousal Support is based on dependency and entitlement. The Divorce Act sets out factors
including length of marriage and role assumed by the spouses. The object is to relieve
economic hardships and disadvantages due to break-up.
Spousal Support Advisory Guidelines have come into effect to help calculate support and
take into consideration the length of marriage, income of parties and number of children.
Usually stay-at-home spouses, spouses under disabilities, or parties with large income
disparities are entitled to support.
Equalization
Property acquired during marriage has to be divided (equalized). Valuation for the assets
and liabilities are made as of the date of separation. Supporting statements should be
obtained to substantiate all figures. Complete financial disclosure is essential for fair
negotiations. An unequal equalization can be made in favour of one party if it would be
unconscionable to divide property equally.
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What is Collaborative Law? (CFL)
This is a relatively new approach in trying to resolve family matters without going to
court or going through the mediation process.
The parties have direct control of the process instead of the courts. It is a process
where the parties agree to work together to create a fair solution to resolve disputes
arising from the marriage breakdown.
The parties require an agreement to be entered into between the parties and their
lawyers that the parties will not go to court while taking part in the collaborative
process. The parties' lawyers are used to provide legal advice and problem solving skills
and not litigation tactics. Should the collaborative process not succeed then both lawyers
must resign and new lawyers retained for litigation.
If one of the parties refuses to make proper disclosure then his or her lawyer is
required to withdraw from the case. This helps in obtaining the disclosure.
Participation in the collaborative process is voluntary and either party may withdraw
at any time.
Collaborative law requires you to be assisted at all times by your lawyer and therefore
you will always be getting proper independent legal advice.
Mediation does not always involve a lawyer and deals with a mediator who cannot take
sides and cannot give legal advice.
Mediation may be appropriate for people who can discuss the matters themselves without
the need for a lawyer to represent them.
Collaborative law is useful for people who want to negotiate the matters themselves,
but have a lawyer with them to provide continual independent legal advice, guidance and
problem solving skills.
Collaborative law requires all the parties to put their efforts into settlement without
fear or threats by the other party of going to court. As a result settlement can be
reached easier and quicker.
Part of the collaborative process can involve the use of divorce coaches, financial
advisers, and child specialists to assist in reaching the best results.
All issues arising in Family law can be dealt with in the collaborative process
including child custody, access, child support, spousal support and an equalization of
property.
Once an agreement is reached on all the issues a detailed agreement is prepared by your
lawyer and signed by the parties and their respective lawyers.
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When Am I Separated?
Parties are separated when they form an intention that they no longer wish to live
together.
A Separation Agreement can confirm the separation date.
The Divorce Act requires that the parties have lived separate and apart for at least
one year immediately proceeding the determination of the divorce proceeding and were
living separate and apart at the commencement of the proceeding, Section 8(2).
It is possible to still be separated but to live separate and apart under the same
roof. You will have to show that you were living separate lives while residing in the same
residence. You would have to prove:
- Spouses occupy separate bedrooms;
- Absence of sexual relations;
- Little, if any, communication between the spouses;
- Wife performing no domestic services for husband, or husband refusing to assist in
household maintenance; and
- No social activities together.
It must be remember that even though you are separated, you are still married until
divorced.
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What is a Common Law Relationships?
Common Law couples have some of the same rights as married couples regarding support
obligations and custody of children.
Under the Family Law Act, spouses are defined either as two people who are not married
to each other and have cohabitated:
- continuously for a period of not less than 3 years; or
- in a relationship of some permanence if they are the natural or adopted parents of a
child.
There are a number of differences between married and common law rights.
There is no right to an equalization of property if the parties separate in a common
law relationship.
The concept of matrimonial home does not apply to common law relationships. In order to
claim an interest in a house owned by the other spouse; the common law spouse will have to
resort to concepts of unjust enrichment or constructive trusts.
There is no right to automatically inherit property if a common law spouse dies.
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What are the Grounds for a Divorce?
A Court can grant a Divorce on the grounds that there has been a "breakdown of the
marriage".
Breakdown of marriage is established only if:
- The spouses have lived separate and apart for at last one year immediately preceding the
determination of the divorce proceedings and were living separate and apart at the
commencement of the proceedings, or
- The spouse against whom the divorce proceedings is brought has, since celebration of the
marriage:
- committed adultery; or
- treated the other spouse with physical or mental cruelty of such a kind as to render
intolerable the continued cohabitation of the parties.
The Divorce Act requires that every lawyer draw to the attention of the parties the
provisions of the Divorce Act, that have as their object the reconciliation of spouses,
and to discuss the possibility of reconciliation and to inform the spouses of marriage
counselling or guidance facilities. The lawyer is also obligated to discuss with the
spouse the advisability of negotiating matters that may be subject of a support order or a
custody order and to inform the spouses of mediation facilities known to the lawyer.
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What are the Steps in a Divorce?
An Application for Divorce is prepared and issued. The Divorce Application can deal
with custody, access, child support, equalization and spousal support. It will be
necessary to also file a Financial Statement showing the parties financial position at the
date of separation (valuation date).
The Respondent files an Answer, Claim by Respondent and a Financial Statement.
Basically he/she outlines his position to the issues raised by the Applicant. The
Applicant has a chance to file a Reply, if necessary. There can be on-going negotiations
between the parties while these documents are being prepared.
The Courts in Ontario require a formal mandatory mediation called Conferences". It
will be necessary to set up a Case Conference in front of a Judge. The issues as outlined
in the Application and Answer are discussed with an aim of trying to resolve the issues. A
Judge will usually not make an order at these Conferences unless it is on consent.
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What are Motions?
If there are issues that still cannot be resolved at the Case Conference, or matters
that are urgent and cannot wait for a Conference to take place, such as support or
stopping a child from being taking out of the jurisdiction, then a Motion can be brought
to deal with the matters on a temporary basis.
Orders dealing with custody, access, child support, spousal support, restraining
parties from disposing of assets, or restraining orders can be obtained on Motions. It is
suggested that Offers to Settle are provided with the motion material.
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What is a Settlement Conference?
A Settlement Conference is similar to a Case Conference, but requires Offers to Settle
to be submitted.
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What is a Trial Management Conference?
A Trial Management Conference is a final attempt to try to settle the issues before a
Judge prior to a Trial.
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What are Examinations and Questioning?
This allows one party to obtain information and to question the other party on any
outstanding issues prior to the Trial.
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What is a Trial?
If the parties are unable to resolve any issue, then a Trial in front of a new Judge
will take place (not the Judge that was in attendance at the various Conferences).
The Trial can deal with all the issues, or just issues that have not been settled. Both
parties will get a chance to take the stand and tell their story to the Judge. A party
will be cross-examined by the other parties counsel. You will also have the right to call
witnesses to support your position. The Judge will make a final decision.
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