1. Family Law & Separation and Divorce in Ontario
Going through a divorce or separation can feel like an emotional and legal maze. When a marriage or common-law relationship dissolves and couples are separating or divorcing, critical issues around parenting decisions, access to children, child support, spousal support, and property division must be addressed. Understanding applicable family laws relating to these issues empowers individuals to protect their rights and successfully navigate this transition. That is why you need this essential Ontario family law guide to separation and divorce.
Being well-informed about relevant family law issues can help individuals set realistic expectations and make sound decisions. It allows them to anticipate potential disputes and negotiate fair settlements. People who ignore family law issues, either willingly or unintentionally, often find themselves facing painful surprises and outcomes down the road.
Additionally, family law continues to govern relationships even after a divorce or separation is finalized. Parenting schedules and decision-making, child support, spousal support, and property division arrangements can often be revisited and modified over time as circumstances change.
Ending a marriage or common-law relationship involves navigating complex emotional and legal matters. Fortunately, solutions exist beyond painful court battles. Mediation and arbitration provide simpler pathways to resolve separation and divorce disputes amicably. This article outlines key family law considerations and processes to empower you through peaceful transitions.
2. Understanding Divorce and Separation in Ontario
2.1. Definition of Divorce and Separation in Ontario
Divorce and separation have distinct meanings and legal implications in Ontario.
Divorce refers to the formal legal dissolution of a marriage between spouses. It is an order granted by the court that officially ends the marital relationship. A divorce settlement will deal with issues like parenting schedules and decision-making, child support, spousal support, and property division. After divorce, the parties are free to remarry someone else.
Separation refers to married spouses who have voluntarily decided to live apart from one another and end their cohabitation and marital relationship on a permanent basis. However, if married, they remain legally married even after separating. Either spouse can apply to legally divorce after being separated for at least one year. Separated couples must still address legal issues like parenting, support, and property division.
“Common-law” spouses cannot divorce as they were never legally married. However, common-law separation occurs when unmarried cohabiting partners end their conjugal relationship. They must settle any outstanding legal issues between them.
2.2. Legal Implications of Divorce and separation in Ontario
While being legally divorced and separated both dissolve the marital/common law relationship, there are some notable differences in their legal implications:
- Divorce provides a clean legal break from the marriage, allowing remarriage. Separation does not.
- The one-year separation period must elapse before the Court will grant a divorce. No mandated wait time for separating.
- Courts grant divorce while spouses themselves decide to separate.
2.3. Common Misconceptions About Divorce and Separation
Some common misconceptions about divorce and separation include:
- The false belief that a separated couple are still bound by vows like fidelity – in reality the marital relationship ends with separation.
- Thinking that separation agreements are all that’s needed to fully end a marriage – divorced is still required for a complete legal dissolution.
- Assuming divorce is always highly litigious – many are settled out of court mutually by agreement.
- Believing common-law couples can get legally divorced (they must simply separate).
3. Major Issues in Family Law during Divorce or Separation
3.1. Child Parenting and Access Rights in Ontario
3.1.1. Definition And Types of Parenting (Sole, Joint, Shared, Split Decision Making)
Parenting refers to the various arrangements for which parent(s) will be responsible for making significant life decisions regarding the children, and the living arrangements for the child(ren) after divorce or separation. Some common parenting arrangements include:
- Sole Parenting – One parent has full decision-making authority, and in most cases, the child lives primarily with them.
- Joint Parenting – Both legal parents share major decision-making about the children and parenting time is as agreed upon by the parents or imposed by a Court or arbitrator.
- Shared Parenting – Each parent has roughly equal parenting time with the child(ren).
- Split Parenting – Siblings are split between parents (one has custody of Child A, the other has primary residence of Child A and the other has primary residence of Child B).
3.1.2. Factors Considered in Parenting Arrangements
When determining parenting arrangements, courts consider the following factors:
| Factor | Description |
|---|---|
| Child’s views | Child’s preferences, depending on age and maturity |
| Parent-child relationship | Quality of bonding and attachment with each parent |
| Ability to provide for child | Which parent can better provide for physical, emotional, and financial needs |
| Parenting history | Level of past involvement and caregiving for child |
| Mental health and substance abuse | Any issues like addiction that jeopardize child’s welfare |
| Domestic violence | History of abuse toward child or spouse |
| Cooperation between parents | Ability to communicate, cooperate, make joint decisions |
| Schedules and support systems | Work schedules, proximity, and family support available to help with child |
| Status quo and stability | Maintaining consistency for child rather than disruption |
3.1.3. Parenting for the Non-Residential Parent
The non-residential parent is entitled to reasonable parenting time with the children in accordance with the children’s best interest. This is outlined in a parenting schedule and may include overnights, weekends, holidays, etc. Restrictions may apply where justified.
3.1.4. Changing Parenting Arrangements
Parenting may be re-examined if there are material changes affecting the child’s best interests. The parent seeking a change must show: 1) a material change in circumstance, 2) Change is in child’s best interests, 3) Benefits outweigh disruptiveness of change.
3.2. Child Support
3.2.1. Understanding Child Support Obligations
The paying parent must financially support the children, to cover their reasonable needs and living standards. Child support is determined by income, province, and number of children. Special expenses may be added.
3.2.2. Factors Influencing Child Support Amounts
Certain of the key factors affecting the amount of child support are the following:
| Factor | Description |
|---|---|
| Payor’s income | Gross annual income amount of the paying parent |
| Child support guidelines | Province’s guidelines table amounts based on income and number of children |
| Number of children | More children mean higher total support amounts |
| Special expenses | Added childcare, medical, or educational costs |
| Payor’s ability to pay | Consideration of debts, expenses, assets, and living costs |
| Recipient’s means | Income and resources available to recipient parent |
| Child’s Best Interests | Lifestyle and expenses required to meet the child’s reasonable needs |
| Time spent with each parent | Proportion of time child spends with each parent |
| Additional dependents | Support obligations for other children / families |
| Undue hardship | Financial difficulties making it extremely difficult for paying parent to comply |
3.2.3. Duration Of Child Support
Support continues until the child(ren) is no longer a child of the marriage. It may continue through post-secondary education if child remains financially dependent.
3.2.4. Enforcement And Modification of Child Support
If the paying parent defaults on child support, the receiving parent can pursue enforcement remedies through the courts and the Family Responsibility Office in Ontario such as garnishing wages, seizing assets, suspending driver’s licenses, or other penalties.
The court can also issue an order to change the amount of support if there has been a material change in circumstances such as a loss of job, change in income, or increased expenses.
The paying parent must provide updated financial disclosure for the court to reconsider the appropriate support amount based on their current means.
The law requires parties to exchange financial information annually and an agreement or order governing the parties may allow for automatic increases tied to inflation/cost of living.
Child support typically continues until the child turns 18 or graduates high school but may be extended if pursuing post-secondary education.
3.3. Spousal Support (Alimony)
3.3.1. Eligibility For Spousal Support
In Ontario, the recipient spouse must demonstrate need for support and the paying spouse must have the ability to pay. Courts look at factors like:
| Factor | Description |
|---|---|
| Length of marriage | Courts consider the duration of the relationship |
| Roles during marriage | Contributions and responsibilities, such as caregiver vs breadwinner |
| Age and health | Impact on earning capacity and financial needs |
| Education and employability | Job qualifications, skills, experience and earnings ability |
| Ability to become self-supporting | Can the spouse reasonably become financially independent in the future? |
| Loss of marital standard of living | Support required to maintain or approximate marital living standard |
| Compensatory basis | Did marriage impose economic disadvantages on the spouse claiming support? |
| Economic hardship | Urgent financial need for support |
| Means and needs | Incomes, expenses, assets and debts of both spouses |
3.3.2. Determining The Amount and Duration of Spousal Support
The Spousal Support Advisory Guidelines provide ranges for duration and amount based on the payer’s income and length of marriage. Courts consider the recipient’s needs and living costs, as well as assets received through equalization. Time-limited support may encourage self-sufficiency. Agreements often provide cost-of-living increases.
3.3.3. Modification And Termination of Spousal Support
Spousal Support typically ends upon death of either party, or support may be reviewed if the payer loses their job or retires, or the recipient remarries, cohabits or increases earnings substantially. Courts favor certainty in support arrangements. Clear termination clauses may be included in agreements.
3.4. Equalization of Net Family Property (Division of Property) – Only Applicable to Married Spouses
3.4.1. Understanding Family Property and Excluded Property
Family property refers to all assets (includes almost anything including pensions, and debts) acquired by either or both spouses during the marriage. Excluded property belongs to one spouse exclusively and is excluded from division. This includes gifts, inheritances, insurance settlements, and pre-marital property, which has been kept in that spouse’s name.
3.4.2. How Property Is Divided in Ontario
Ontario uses an equalization regime to divide marital property upon separation. The net value of property owned on the valuation date is calculated, then the difference between spouses’ net values is split evenly.
3.4.3. Special Considerations
Pensions are valued and divided using various methods like lump sums or division of payments. Business assets are typically valued by Charter Business Valuator’s who prepare objective valuations. The matrimonial home‘s value will be equalized and contrary to popular opinion is NOT automatically owned/shared equally. Debt repayment must also be addressed.
3.5. Tax Implications
3.5.1. Tax Issues Related to Spousal Support and Child Support
Spousal support is taxable income to the recipient and tax deductible for the payor. Child support is not taxable for the recipient nor deductible for the payor. Support in arrears/lump sum payments may have different tax treatments.
3.5.2. Tax Considerations When Dividing Property
Transfers of property between spouses at separation are usually tax neutral. However, selling or transferring certain assets may trigger capital gains or other taxes if not handled properly. Professional tax advice is recommended when dealing with significant assets, property, and complex separation agreements.
4. The Legal Process of Divorce and Separation
4.1. Initiating The Separation or Divorce Process
In Ontario, either spouse can initiate divorce or separation proceedings. The process typically begins by one spouse consulting a family law lawyer to understand their rights and options. For divorces, couples must be separated for at least one year before the Court will issue a the Divorce Order.
4.2. Legal Requirements and Paperwork for Separation or Divorce
There are several legal documents required to formally initiate and finalize divorce or separation including:
- Application for Divorce/Application for Separation – Filed to the court requesting dissolution of the marriage;
- Financial Statements – Sworn statements declaring income, expenses, assets, and liabilities.
- Separation Agreement/Minutes of Settlement – Contracts signed by spouses outlining all settlement terms. These become legally binding and are often incorporated into a court order.
- Divorce Order – Final legal document granted by the court formalizing the dissolution of marriage.
4.3. Role Of Mediation and Arbitration in Resolving Family Law Disputes
Mediation and arbitration provide alternatives to litigating disputes in court. An impartial mediator or arbitrator helps spouses negotiate mutually acceptable settlements. These processes can save time, money, and emotional toll compared to prolonged court battles. Legally binding agreements can result. For additional information regarding mediation and the mediation process, see our family mediation series of articles starting with Family Mediation: Resolving Family Law Disputes – An Essential Guide.
4.4. Going To Court for Family law Issues: What to Expect
If agreements cannot be reached out of court, issues like parenting rights and schedules, child support, spousal support and property division will be decided by a judge.
4.5. Finalizing The Divorce or Separation Agreement
Once terms are mutually settled or ruled on by a judge, they are incorporated into a final order or agreement. This comprehensively deals with all legal and financial obligations arising from the ended marriage or relationship. Family law requires complying with these binding terms.
5. Coping with Divorce or Separation
5.1. Emotional Aspects and Seeking Support
Divorce and separation involve profound grief and loss. Seeking counseling can help process difficult emotions like anger, loneliness, resentment. Joining a divorce support group provides connection. Confiding in close friends/family also helps. Prioritizing self-care aids healing.
5.2. Impact On Children and How to Help Them Cope with Separation or Divorce
Children often blame themselves when parents split up. Providing reassurance and emphasizing both parents’ love is critical. Maintaining routines and open communication can help children adjust. Watch for signs of prolonged struggle like declining grades. Counseling may assist children dealing with emotional trauma.
5.3. Importance Of Self-Care During the Separation or Divorce Process
Practicing self-care helps maintain stability amidst the stress of marital dissolution. Sufficient sleep, regular exercise, healthy eating, and relaxation techniques preserve emotional equilibrium. Setting boundaries around divorce discussions prevents burnout. Individual counseling provides coping strategies. Pursuing enjoyable hobbies and social activities boosts mood.
6. Final Thoughts: Managing Family Law Issues During Separation or Divorce
6.1. Recap Of the Major Issues in Family Law During Divorce or Separation
In summary, the major legal issues that arise during divorce and separation include determining parenting decision making and schedules for children, child support amounts, spousal support eligibility, amount and duration, and the division of property. Debt obligations, and tax implications must also be addressed. Out-of-court dispute resolution methods like mediation or arbitration can facilitate amicable settlements. The emotional toll on spouses and children must be managed through support systems and self-care.
6.2. Encouragement For Seeking Legal Advice and Support During Separation or Divorce
Navigating the complex legal process of common-law or marital dissolution requires experienced professional guidance. Consulting a lawyer protects your rights and interests when dealing with critical issues like parenting and support. Take advantage of available emotional support and counseling resources. Although challenging, divorce or separation can represent a chance for a new beginning.
Although separation and divorce present legal and emotional challenges, peaceful resolutions are possible. Mediation helps couples restructure lives through mutual problem-solving and compromise, rather than confrontation. Arbitration also settles disputes privately and cost-effectively.
As a mediator and arbitrator, I have seen respectful dialogue transform relationships. Progress takes courage, but harmonious outcomes can arise even amid grief and conflict. With greater understanding of family law issues and constructive conflict resolution processes, you can navigate this transition with knowledge and grace.
7. Links to Relevant Laws and Regulations
Ontario Family Law Act
Ontario Divorce Act
Ontario Child Support Guidelines
Spousal Support Advisory Guidelines
8. Frequently Asked Questions About Family Law Separation and Divorce
Q: How long does it take to get divorced in Ontario?
A: In Ontario, you must be separated for at least one year before applying for a divorce. The divorce process takes around 16 – 20 months total from start to finish.
Q: What is the difference between separated and divorced?
A: Separated couples are still legally married but live apart. Divorced couples are legally separated and can remarry. Separation is grounds for divorce.
Q: How is property divided in a divorce in Ontario?
A: Ontario uses equalization to divide marital property. The difference in spouses’ net worth is calculated and split 50/50. Exceptions include gifts, inheritances, and pre-marital assets.
Q: Am I entitled to spousal support after divorce?
A: A spouse may claim support based on financial need and the other’s ability to pay. Factors considered include income disparity, marriage length, age, and employability.
Q: Can I change the parenting schedule after divorce is finalized?
A: A parenting schedule can be modified by court order if there are substantial changes affecting the child’s best interest or both parents consent.
Q: Does adultery affect divorce and asset division?
A: Ontario is a no-fault jurisdiction. Marital misconduct like adultery typically does not impact property division or spousal support awards.
Q: Can I represent myself in my divorce?
A: You can self-represent but divorce involves complex legal issues. Consulting a family lawyer protects your interests and children.
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Cheryl Goldhart is a mediator and arbitrator who can make a difference: Positive Resolution of Your Family Disputes
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- With nearly four decades of experience in family law, Cheryl Goldhart brings a wealth of knowledge and expertise to every case.
- Her Masters degree in counseling adds a unique dimension to her approach, fostering empathy and understanding in managing family disputes.
- Cheryl is a Family Law Specialist was certified by the Law Society of Ontario.
- As a mediator, she has Accreditation from the Ontario Association for Family Mediation.
- Cheryl, in her role as an arbitrator, is designated as an ADR Professional by the ADR Institute of Ontario.
- Recognized for her exceptional contributions, Cheryl Goldhart has been honored with the Ontario Bar Association’s Award For Excellence In Family Law.
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