Divorce

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Divorce

Separation agreements and court orders can resolve some family matters when you separate but they do not legally end your marriage. The only way to legally end your marriage is to get a divorce. Before making any decisions about divorce, you should understand your rights and obligations. While you do not need a lawyer to file a divorce application, it is a good idea to consult one before doing so.

An application for divorce can usually be finalized within four to six months, provided there are no other issues, such as custody/access, support or division of property. If your application is more complicated, the completion time will depend on how complex the issues are and whether they can be resolved with the agreement of both parties. In order for a divorce to be granted, you must have been separated from your spouse for one year, unless you have established other grounds, such as adultery or mental or physical cruelty.

It costs approximately $450.00 to file for divorce in Ontario: Court fees of $167.00 are due when an application is filed. An additional $280 is due when an affidavit for divorce is filed, for total of $447.00. Court fees may be paid by cash, cheque or money order payable to the Minister of Finance. If you are unable to pay the court fees, you may request a fee waiver.

Here you can find some information, including the care and support of your children, support for you or your partner and the division of your property. This resource does not offer legal advice. For legal advice, consult a lawyer. The following links will help you find more information about divorce law and procedure.

  • “What You Should Know about Family Law in Ontario” (available in 9 languages at http://www.attorneygeneral.jus.gov.on.ca/english/family/famlawbro.asp) covers many aspects of divorce and separation, including mediation, choosing a lawyer, going to court, your rights and obligations
  • Family Law Information Centres (FLICs): An area in each family courthouse where you can receive free information about divorce, separation and related family law issues (child custody, access, support, property division and child protection) and referrals to community resources. Each FLIC has a variety of publications available addressing these issues, as well as guides to court procedures. Staff and Advice Lawyers are also available at designated hours

 “GETTING DIVORCED”

We think that the best way to start with is “Getting Divorced” (written by CLEO – Community Legal Education Ontario – www.cleo.on.ca – with funding from Legal Aid Ontario and the Department of Justice Canada): a brochure that provides information about legally ending a marriage in Ontario.

Do I need a reason to get a divorce?

The only legal reason you need for a divorce is marriage breakdown. The law accepts that there has been a breakdown of your marriage if you can prove that you and your spouse have lived separate and apart for at least one year. This means that you have not lived together as a couple during that time.

In some circumstances, spouses can be living separate and apart even though they still live under the same roof. This is possible as long as they are no longer living together as a couple. If this is your situation, it is up to you to prove it. This can be complicated and you should get legal help.

You do not have to wait until you have been separated for a full year to apply for a divorce. You can start the application as soon as you separate, but the court will not give you the divorce until the year is up.

A divorce can be granted without waiting for one year of separation if you can prove that your marriage has broken down because: your spouse had sex with someone else after you married (adultery), and you did not forgive the adultery or live together for more than 90 days after finding out; or your spouse was physically or mentally cruel to you. However, if you apply for a divorce on either of these grounds, your spouse might be more likely to oppose it. This could lead to a longer and more expensive process.

How you prove marriage breakdown does not affect decisions the court might make about custody, access, and support. These decisions are not based on who was at fault in the marriage breakdown.

Can there be a divorce if only one of us wants it?

Yes. It is not necessary for both of you to want to end the marriage. If one spouse wants a divorce, the marriage has broken down. You can get a divorce after one year of separation, even if your spouse does not want one. If you can prove that your spouse committed adultery or cruelty, you can get a divorce whenever the court can hear your application. However, if you are the one who committed adultery or cruelty and you are also the one who wants the divorce, you will have to wait until you have been separated for one year. You cannot use your own adultery or cruelty as the reason for the divorce.

Who can apply for the divorce?

Either of you can apply, or you can make a joint application.

If we try to get back together, but it does not work out, do I have to wait for another year?

No, as long as you do not get back together for a period of more than 90 days, or for several periods that add up to more than 90 days. This time will still be counted as part of the time that you are separated. This allows you to try to repair your marriage without delaying your divorce if you are not successful. Marriage counselling might be an option. In fact, if you see a lawyer about getting a divorce, the law says that in most cases the lawyer must talk to you about counselling.

Can I get a divorce if I am not a Canadian citizen?

Yes. You do not have to be a Canadian citizen to get a divorce in Canada. It also does not matter if your marriage took place in another country. You can apply for a divorce in any province where either you or your spouse has been living for at least one year. You might be asked to prove that your spouse’s home address or your home address is in that province. If you often travel out of the province, you will still be able to get a divorce as long as your permanent home is in that province.

When do we decide about support, property, and the children?

There are a number of things you may need to decide when you separate from your spouse. For example:

  • Who will make the major decisions about the children (custody)
  • Where the children will live
  • When the children will spend time with a parent if they will not be living with that parent (access)
  • Financial support for the children
  • Financial support for you or your spouse
  • The division of any property you have, including such things as pension benefits,
  • Who gets to stay in the home, or if it will be sold
  • Who will pay any family debts, or how they will be divided.

You can decide these things as soon as you are separated. You do not have to wait for the divorce. If you and your spouse can agree about them, you can put them into a written separation agreement. In order for the agreement to be legally binding, each of you must sign it in front of a witness who must also sign it. The agreement can then be included in the divorce judgment. If the agreement includes support provisions, it can also be registered at an Ontario court so that the support terms can be enforced.

Agreements are treated seriously by the court. They are reviewed by the court, and any terms that are clearly unreasonable will not be accepted. However, judges do not usually change property or spousal support terms that you agreed to in writing, even if they would have set different terms if you did not have an agreement. Therefore, you and your spouse should each consult a different lawyer to learn your legal rights before making the agreement. Your lawyers should also look at the agreement before you sign it.

If you and your spouse cannot agree about some or all of these matters, you can have a mediator help you resolve them, or you can have a judge decide them. You can do this at any time. You may need to have some or all of them decided right away, before the required waiting time for the divorce is over. The judge does not need a divorce application in order to consider these matters.

If there is no urgency, you may want to wait and have some or all of these things dealt with by the court at the same time as the divorce. But getting a divorce does not automatically mean that the judge will also decide these other matters unless you include them in your divorce application.

“Custody and Access” and “Child Support and the Child Support Guidelines” are two other publications produced by CLEO.

Are there time limits?

There are no time limits for applying for a divorce. No matter how long you and your spouse have been separated, one or both of you can make a divorce application. There are also no time limits for asking for support for you or your child. However, spousal support is partly based on need. If you wait a long time before asking for it, a judge may decide that you do not need it.

Although there are also no time limits for custody or access applications, it is important to keep in mind that stability is one of the things that judges consider when deciding where a child should live. If a child has been living primarily with one spouse for any length of time, a judge may be reluctant to make the child move.

There are time limits if you and your spouse have to ask the court to decide how to divide up the property you shared while you were married. The time limit for applying for this is one of the following, whichever comes first:

  • two years after the date of your divorce or annulment, or
  • six years after the day that you separate with no chance of getting back together, or
  • six months after your spouse dies.

If you want to ask a court for an order that you can stay in the home, you must do this before your divorce becomes final.

Can I share my spouse’s Canada Pension Plan credits?

The Canada Pension Plan (CPP) is a benefit plan for workers. Most workers and their employers make regular CPP contributions so that when the worker retires or can no longer work because of disability, he or she gets a pension. The amount of the pension depends on the size of the contributions.

When you separate or divorce, you can apply to CPP for a Division of Unadjusted Pensionable Earnings (DUPE). This is a division of the pension credits that the two of you earned while you were together. The credits that you and your spouse earned for that period of time are added together and then split evenly between you. If your spouse had more credits than you, this might help you qualify for a pension, or increase the amount of your pension if you already have one.

“CPP Benefits: Are you entitled? Separated? Divorced?” is another publication produced by CLEO.

How do I get divorced?

It is best to go to a lawyer. Issues such as property, support, custody, and access can be very complicated. A lawyer can help you find out what your legal rights are. They might also be able to help you reach an agreement with your spouse about the issues related to your divorce so you do not have to take those issues to court. If you are not able to reach an agreement, your lawyer can help present your case to the judge in the best possible way. You have a better chance of getting what you are entitled to if you have a lawyer.

Even if all you want is a simple divorce, it is useful to consult a lawyer. They can advise you about your personal situation and help you get through the court procedure more smoothly. For a simple divorce, you could decide to go to court without a lawyer representing you, but it is still worthwhile to consult a lawyer first.

What if I cannot afford a lawyer?

You usually cannot get legal aid for a divorce. You may be able to get a legal aid certificate for custody and access or support issues. These issues can be dealt with apart from the divorce or together with the divorce application. Contact Legal Aid Ontario to apply for legal aid or to find out if your situation can be covered.

For more information about Legal Aid Ontario go to www.legalaid.on.ca or you can call them at:

Toll-free 1-800-668-8258
Toll-free TTY 1-866-641-8867
Toronto area TTY 416-598-8867

Can the terms of the divorce be changed after the divorce?

When the divorce has been granted and the 31‑day appeal period is over, the divorce is final. This means that it cannot be undone by anyone, including the court. However, custody, access, and support are never completely final. Sometimes the court will change these things if there has been a major change in circumstances since the agreement or court order was made.

SETTLING OUT OF COURT

  • Mediation: The mediator, a neutral third party, can help you reach an agreement on a variety of issues, including support payments, the division of property, and child custody and access. Mediators, unlike judges or arbitrators, do not decide cases or impose settlements
  • Arbitration: Arbitrators, like mediators, are neutral third parties. However, unlike mediation, parties who wish to arbitrate must agree to be bound by the decision made by the arbitrator
  • Collaborative Family Law: Collaborative lawyers assist parties in negotiating a resolution of their dispute(s) in a principled and respectful fashion without going to court. Both parties and their lawyers sign a contract committing to this process in advance

GOING TO COURT

If you and your spouse cannot agree on how to resolve your family law issues, you can go to court and ask a judge to decide for you.

Guide to procedures in Family Court: The Family Court is a branch of the Superior Court of Justice. The Family Court is the only court in Ontario that can hear all family law cases, including divorce, child and spousal support and child custody/access cases

Guide to procedures in the Ontario Court of Justice: The Ontario Court of Justice can hear family law cases involving child and spousal support, child custody and access, child protection and adoption. It cannot grant a divorce order or decide property matters

Guide to procedures in the Superior Court of Justice: The Superior Court of Justice can hear family law cases involving the same types of issues as those in the Family Court, except for adoption and child protection applications. These types of cases can only be heard in the Family Court or the Ontario Court of Justice

How to get a copy of a divorce order, certificate of divorce or other court document

In order to obtain a copy of any of these documents, you must request them from the court office where the case was started. If you are unable to attend in person, you may ask a representative to attend on your behalf or you may write to the court office. You may wish to call the court office in advance to ask about any steps that are necessary in order to obtain the documents. For example, a fee of $19.00 is charged in order to obtain a Certificate of Divorce.

Separation and children

Custody and access: When you separate or divorce, you must arrange for the care of your children. This includes where they will live and how important decisions about them will be made

Child support: Both parents have a responsibility to financially support their children. If you do not have custody, the amount of child support you must pay is based on your income and the number of children you must support

Caring for children: Looking after children during or after a separation can be difficult. Here are some links to information that may help

Supervised access to children: Where there are concerns for the safety of the children and/or a parent, a court can require that visits with children be supervised. The parents can also agree upon supervised visits without a court order

Child Protection: When concerns are raised about a family’s ability to care for a child, a child protection agency may take steps to investigate the care the child is receiving and potentially to remove a child from his or her home

Other Financial Issues

Spousal support: Learn how claims for spousal support are addressed, including the advisory spousal support guidelines

Division of Property: How property, including the home where you and your spouse live, is divided when a marriage ends, including a description of the equalization of net family property rules

ARCHIVES OF ONTARIO

How do I find a particular Birth, Marriage or Death Registration?

Due to limited resources and very high demand, the Archives of Ontario is not able to perform searches and provide copies of registrations. You must perform your own search using microfilm by doing one of the following:

  • Visiting our Reading Room, 134 Ian Macdonald Blvd., Toronto.
  • Borrowing the indexes and registrations that you require through our Microfilm Interloan Service. This service allows you to order microfilmed records through a public library or another institution that is part of the interlibrary loan system. The Vital Statistics main page is designed to help you find the microfilm reels that you need.
  • The indexes and registrations up to and including the 1912 births, 1927 marriages, and 1937 deaths can also be borrowed from the Church of Jesus Christ of Latter-day Saints through their Family History Centres. The Family History Centres have a different numbering system than the Archives of Ontario. Use the microfilm conversion list to convert our reel numbers to one you can use at a Family History Centre.
  • Hiring an independent researcher to perform a search for you. Please see Archives of Ontario Customer Service Guide 111: Genealogical Researchers in Ontario.
  • Purchasing microfilm copies of the reels of indexes and registrations that you require through the Ontario Genealogical Society (OGS). For information on how to place an order, visit the Ontario Genealogical Society website or contact the OGS at:
Ontario Genealogical Society
40 Orchard View Blvd. Suite 102
Toronto ON M4R 1B9
Phone: 416-489-0734 Fax: 416-489-9803
E-mail: provoffice@ogs.on.ca

What if I need a Registration for Legal Purposes?

It is possible to obtain a certified copy of birth, marriage and death registrations held by the Archives of Ontario.

You or a representative must visit the Archives Reading Room (134 Ian Macdonald Blvd., Toronto) and print out the registrations from microfilm in the presence of Archives staff, who will then forward the printouts for certification by the Archivist of Ontario. The printouts can be mailed to you or picked up from our reception desk in about two business days. See Archives of Ontario Customer Service Guide 111: Genealogical Researchers in Ontario for a listing of independent researchers people who can be hired to perform a search for you.

As of April 1, 2000 all certifications cost $25.00 plus HST.

Please note: The Archives does not issue birth, marriage or death certificates.

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