Deciding to separate or divorce can be one of the hardest decisions an individual makes in life. Before taking definitive steps to end a relationship, it is important to understand what it entails from a legal standpoint, the consequences, and the options available.
Considerable help for separating spouses and families is available, such as counselling and mediation, but a marriage can only end with final approval through the Ontario court system.
So, if you’re considering separation or divorce in Ontario, here’s what you need to know about the steps to take and other options that may be available to you.
What to do when separating or divorcing in Ontario
If you have already decided to separate and divorce but are unsure how or where to start the process, a few practical steps can help you and your spouse manage the difficult period ahead so that neither you nor the children are disadvantaged by the split.
No separation or divorce is identical to any other. Each has its own set of complexities—though understanding the general steps can help ease concerns.
First, depending on the status of your relationship, how amicable the split is, and whether you have children, taking legal advice is advisable. This may be necessary simply to draft or review a separation agreement or, in contested divorces, to negotiate or collaborate on a solution. In highly contested cases, litigation with the help of an experienced divorce lawyer may be required, as a last resort.
A seasoned family lawyer can walk you through the following steps…
Disclosing finances
Both parties in a divorce must disclose their finances in full. A complete understanding of each party’s income, assets, and debts will assist spouses in making informed and fair property division, spousal support, and child support calculations.
Collaborating and negotiating
Often, fair outcomes can be reached through negotiation. Collaborative divorces involve each party hiring a lawyer and meeting to negotiate a mutually beneficial settlement. This can help avoid the costs and stress of litigation, while also keeping matters private and confidential.
Creating the separation agreement
If discussions lead to agreement over the main divorce matters, such as property division, spousal support, child support, parental responsibilities, and parenting time, you are ready to draft a separation agreement.
This document will lay out the conditions of separation and must be legally enforceable, i.e., the agreement must be in writing, both parties must be of sound mind when they sign it, witnesses must be present, both parties must have taken independent legal advice, and the exchange of financial information must be sworn under oath.
Filing for divorce
When you file for divorce in Ontario, you must detail the legal grounds for divorce (the breakdown of the marriage), usually demonstrated by separation for at least one year. The divorce papers must be “served” to your spouse, who typically has 30 days to respond. The case will then pass through the court system and, if everything is in order, a judge will sign the final divorce decree after a few months.
Prepare for court
In a minority of cases, no settlement is possible and the case proceeds to court. Contested matters may require motions, temporary court orders, court conferences, hearings, and a trial—although opportunities often exist to settle matters beforehand through mediation. Each party presents its case, usually with legal representation, and a judge will make decisions based upon the evidence presented.
Consider mediation as an alternative to litigation
Disagreements between spouses over key matters like parenting, decision-making for the children, property division, and support are normal in divorces and separations. Such matters do not necessarily have to end up before a judge, though that is an option.
Mediation has an excellent success rate when resolving family disputes in Ontario. During mediation, a trained and independent mediator attempts to guide the disputing parties to a mutually beneficial resolution. The process is private, less time-consuming, less costly, and helps to preserve relationships much better than litigation.
Mediation also helps partners and spouses maintain control over the decision process. Mediators cannot make binding decisions or offer legal advice. They can, however, explain the legal consequences of decisions. If a mediated agreement is possible, each spouse should seek independent legal advice to ensure that the agreement is in their best interests.
Should you leave the family residence after separation?
One of the major considerations for spouses or common-law partners who separate is whether to leave the family residence. Many wonder how this move will affect their legal rights and what will happen if the children remain with the other spouse.
Spouses should rightly be cautious about leaving the family residence—but, in most cases, it will not impact the right to an equal share of the property if the home was purchased after the marriage started.
However, if the children remain behind, this can damage a parent’s status when discussing parenting and decision-making responsibilities for the children—both during a collaborative divorce and a litigated one.
The “status quo” principle in Ontario
The status quo principle guides Ontario judges when considering the children’s primary residence. To fulfill their duty to make decisions in the best interests of children, judges will invariably favour non-intervention in a child’s living, parenting time, and decision-making arrangements if the present setup is working well.
So, leaving the family home and the children with the other spouse for an extended period of time can lead a judge to determine that the spouse who remains in the home is the de facto “primary parent”.
If you are considering leaving the family home during a separation or divorce, therefore, seek legal advice before doing so. Depending on the circumstances, you may be advised to remain in the home until a court order has been issued. However, any evidence of abuse towards a spouse or the children may require urgent action so that protective orders can be issued and the abusive parent may be required to leave the family residence.
If a married or common-law couple wants to separate and both want to remain in the home, a “nesting” arrangement can occasionally work, whereby the parents adjust schedules so that only one spouse is in the home with the children at a time.
For assistance with any aspect of a separation or divorce in Mississauga, consult with an experienced family lawyer at Amiri Family Law. Book a consultation for advice on your legal options.