Divorce & Separation in Ontario

It is important for spouses to understand the difference between Divorce and separation because, legally, they have different meanings.

Separation occurs when one party has the intention to live separately and apart from the other. This does not mean that the parties have to be living in different homes. It is possible for parties to live separately and apart under the same roof. In order to determine if or when a couple begins living separate and apart, we look at certain factors, including, but not limited to, whether they share a bedroom, whether they share meals and chores, whether they engage in sexual relations, and whether they socialize as a couple. Separation is not something that spouses need to apply to the Courts for, and it is what happens once a relationship breaks down.

There are specific issues surrounding separation that may need to be addressed immediately. These issues include financial support and dividing assets. If there are children, such issues also include a parenting schedule for each parent, how major decisions regarding the children will be made, and how the children will be financially supported now, and in the future.

The actual Divorce usually cannot be resolved right away. Unless there are issues of adultery or cruelty, spouses must wait at least one year from the date that they separate until they can apply for a Divorce Order. Even once the year has passed, if there are children involved, the Courts will likely not grant a Divorce unless they are satisfied that the children are being properly cared for.

Fault & No-Fault Divorce

Canada has a “no-fault” divorce regime. This means that when determining the parties’ legal rights and obligations relating to the children, child or spousal support, and property division, the “fault” or blameworthiness of a spouse in the marriage’s breakdown is generally not a factor taken into consideration.

Even if one spouse is more responsible for the end of the marriage, Canadian family law takes an objective approach to dealing with the issues arising from the Divorce. The family legal system will not review the reasons for the separation.

Uncontested & Contested Divorce

In Canada, the Law sets out that you can only obtain a divorce if certain criteria are met, namely that the marriage between two people has broken down. By Law, this is deemed to occur if:

• You’ve lived apart from your spouse for 1 year with no intention of reconciling; or
• You’ve not absolved your spouse from having committed adultery; or
• You’ve received physically or mentally cruel treatment from your spouse, making a living together intolerable. Cruelty may include acts of physical violence and those causing severe mental anguish.

An uncontested divorce is one where the spouses agree on all the issues raised by the Divorce. Where spouses agree on the issues, the Courts will generally process the Divorce without requiring the spouses to appear in Court. 

Note, however, that you cannot file an “uncontested divorce;” rather, the Divorce becomes uncontested after the spouse has been served and decides not to respond by filing an Answer within the required period of time. The failure to file an Answer makes the Divorce uncontested. A contested divorce is usually much more drawn out than an uncontested divorce; the duration of the proceedings will depend on if and when the case settles.

Seeking Legal Assistance 

It is not required by Law for any party to have a lawyer to represent them in their Family Law matter. The goal of having a lawyer on your side is obviously to make sure that you have legal representation to ensure you know your rights. A Family Lawyer can give you legal advice to ensure that you understand the right option for you and they are aware of the laws. A good example is a parenting schedule or decision-making terms; in those cases, if you don’t have legal advice, you essentially don’t know if your settlement is in your best interest. It is always the right decision to seek the advice of a Family Law Lawyer.  

A Family Law lawyer is likely able to deal with issues more efficiently and effectively. A Family Law Lawyer will be able to identify unfair situations and may be able to resolve the outstanding issues in a more time-efficient manner. 

My sister Ritu and I own and operate Hora Family law. We live and work in the Greater Toronto Area and understand how changes in life can be stressful and complicated. Our signature family-focused approach stems from our combined experience and knowledge as lawyers and as family members. Our office offers free initial consultations so that potential clients have an opportunity to speak with one of our lawyers, discuss their legal matters, explore various options and consider a plan that best suits their family.