Answering Your Main Questions About Family Law In Ontario
You and your spouse should hire different lawyers to represent your best interests in your divorce agreement. This applies even in the case of amicable separations.
Experience tells us that agreements that start off as amicable do not always remain that way. With emotions running high, the situation can rapidly change and disputes can arise..
Besides, it is impossible for one lawyer to represent the best interests of opposing parties in a divorce.
Most family law firms should run “conflict of interest checks” before taking on a client, according to the rules of professional conduct that they are duty bound to follow.
So, you should take the necessary steps to ensure that the firm you trust with your future is not working for the other side too.
At first, it may seem easier and cheaper to hire the same divorce lawyer as your spouse but the golden rule is to hire separate lawyers to defend your competing legal interests and rights.
Some divorcing couples work on their own divorce agreement or quickly draft a set of guidelines about how the key aspects of a divorce will work (division of property, child custody, child support, spousal support, etc.)
They simply want to get the divorce out of the way as smoothly and as quickly as possible with minimum fuss.
While that is admirable, it may not be in their best interests and it may well hurt them in the future.
It is always important to protect what you are legally entitled to.
Besides, problems can and often do arise. A matter that starts out as an uncontested divorce can end up creating conflict between spouses.
An uncontested divorce that is smooth from start to finish is the ideal scenario. It takes the least time, is the least stressful, is the least expensive in terms of legal fees, and neither party is required to appear in court.
However, all divorces must be approved by the Court. If the Court believes that the agreement presented to it is not in the best interests of the children, or there are other problems with it being executable (for instance, if you have not been separated for a year before filing for a divorce), a judge will intervene. This will usually cause untimely delays and extra costs.
Thus, simple divorces can become much more complex.
The best way to avoid this is to hire a skilled divorce lawyer from the beginning.
An experienced and knowledgeable family lawyer can guide you through the divorce process, and anticipate and quickly resolve any issues that would otherwise delay your divorce Order being granted by a judge.
In the eyes of the Court, the most important part of a divorce agreement is what happens to the children of the marriage.
The children’s best interests come first and a judge will consider their unique situation and requirements, basing his or her decisions on these factors, first and foremost.
There are several possible outcomes:
- Joint Custody – where both parents share the right to make important decisions regarding a child’s upbringing, such as decisions related to healthcare, education, extra-curricular activities, and religion..
- Sole custody – where one parent has the right to make important decisions regarding the child’s upbringing alone, but must inform the other parent of the decisions that have been made.
- Split custody – where one parent has custody of one or more of the children of the marriage, and the other parent has custody of one or more of the other children of the marriage. Note that this is a very rare arrangement.
In most cases, the preference for the court will be for the children to live together and for both parents to have a say in their upbringing, with joint decisions made on important matters such as education, healthcare, etc.
Where no divorce agreement can be reached between spouses even with the intervention of mediators and arbitrators, divorce litigation may be required.
In these cases, the divorce process is likely to extend well beyond the few months that an uncontested divorce generally takes.
In fact, with the most complex legal battles, multiple appearances in court may be required and proceedings may last over a year.
The most common points of contention in a divorce are
- Child custody: which parent(s) will make important life decisions and look after the children?
- Child Support: which parent will pay support and how much will they pay?
- Division of Property: how assets (money, property, shares, vehicles, etc.) are divided
- Payment of Debts: who is responsible for the outstanding debts?
- Spousal Support: how much is required to support a spouse after the marriage ends?
Make sure that the family law firm you hire at the beginning of your divorce process is able to represent you for litigation, if necessary.
If you do need to go to court, an experienced divorce litigator can greatly affect the settlement or result you achieve through litigation. And this will have a tremendous impact on your future.
With a contested divorce, you and your lawyer will usually need to complete the following steps:
- Complete the relevant divorce Application forms
- File the application with the Ontario Superior Court of Justice and pay the filing fee ($212.00)
- Serve the Application to your spouse
- Await your spouse’s “Answer” (within 30 days)
- Serve and file your “Reply” to your spouse’s Answer (10 days)
- Attend the Mandatory Information Program at the local courthouse
- Attend a Case Conference with your lawyer, your spouse and their lawyer, and a judge
- Serve, file, and argue motions (temporary rulings) if child custody, child/spousal support, or other important interim matters are not settled at the case conference
- Attend a settlement conference and/or trial management conference if you and your spouse are unable to reach an agreement after the case conference
- Conduct a trial, where a judge will issue a ruling on the remaining issues
Prenuptial agreements are legal contracts, recognised by the Ontario Family Law Act, that set out the terms of a marriage and divorce.
They cover topics such as:
- Ownership and Division of Property
- Spousal Support Obligations
- Who has the right to direct the education and moral training of the children
In the past, prenuptial agreements were mainly drawn up by high net worth individuals who wanted to protect assets accumulated over their lifetimes.
However, they have become more widely used as people tend to get married later (or divorce and re-marry) and have already accumulated significant assets that they wish to protect in the event of separation or dissolution of marriage.
A prenuptial agreement can also be a useful tool for protecting the rights of children from a previous marriage.
Note that the Ontario courts are able to exercise discretion when enforcing these contracts, especially when it comes to the best interests of the children and when deciding whether the division of property or spousal support that was previously agreed to was, in fact, fair to both parties.
The agreement may also be challenged if there are grounds to do so (for instance, if one of the parties failed to disclose some assets or it was discovered that one party entered into the agreement under duress).
It is important to discuss with a family lawyer whether a prenuptial agreement is right for you as an individual and as a couple.
If so, your family lawyer will help ensure that the agreement is drafted not only to protect your interests but to be enforceable according to family law in Ontario.
Remember that it is never too late to draw up a marriage contract to serve the same purpose as a prenuptial agreement. This is sometimes called a “postnuptial agreement” and it can be created after you are married if you and your spouse are in agreement.
According to a recent study by Canadian Lawyer Magazine, the average hourly rate for a lawyer in Ontario is $219 – $438.
The average cost of a family lawyer for an uncontested divorce in Ontario was $1,302 and for contested divorces, the average cost was $15,306.
At Amiri Family Law, we will happily provide you with a legal fee estimate after meeting with you and discussing your case.
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