Divorce in Ontario – Some Frequently Asked Questions
By Jan Jaluvka
What is a divorce?
A court judgment which legally dissolves or ends the marriage between two people.
Who is eligible to apply for a divorce in Ontario?
You may apply if:
1. you were legally married to your spouse in Canada or any other country;
2. you are already living apart from your spouse with the intention of not getting back together or you plan to permanently separate from your spouse with the belief that there is no possibility of the two of you reconciling or getting back together again; and
3. either you or your spouse have lived in Ontario for at least one year immediately prior to starting the application.
I live “common law” with my partner but we’ve never been married. Am I able to apply for a divorce?
No. You cannot apply for for, nor do you need to apply for one. Only married people, whether they are of the opposite or same sex, are eligible to apply. Despite your exclusion from the divorce process, you may still be able to apply to the court or negotiate a formal separation to settle support, child custody and other outstanding matters between you and your partner.
What are the legal grounds for ending a marriage?
The Divorce Act, the governing federal statute, provides that a court may grant a dissolution of the marriage on the ground that there has been a breakdown of the marriage. Marriage breakdown is deemed to have occurred where:
1. the spouses have lived separate and apart for at least one year immediately before the divorce judgment is obtained; or
2. the spouse against whom the divorce proceeding is brought, has, during the marriage, committed adultery (has had sexual relations with another person outside the marriage) or treated the other spouse with physical or mental cruelty of such a kind as to make it intolerable or unbearable for the spouses to continue living together.
The vast majority of divorces granted in Ontario are based on one year separation. This ground does not require proving fault on the part of either spouse and proceedings based on this ground often take less time to complete than those conducted on the fault-based grounds of adultery or cruelty.
How does the ground of one year separation work?
Since this is a no fault ground, the question of who walked out on whom does not affect the proceeding. Either or both spouses may apply to the court to end the marriage where the couple has lived separate and apart for one year. Living separate and apart does not even require that the spouses take different residences. They can continue to live under the same roof provided they do in fact keep themselves separate and apart from one another.
If my spouse and I start living together again to try to resolve our differences, does it affect our ability to apply to the court to end our marriage based on one year separation?
No, provided the total time period you live together while attempting reconciliation does not exceed ninety days. In fact, the law encourages spouses to try to resolve their differences and the court must first be satisfied that there is no possibility of reconciliation between the spouses before allowing the hearing of a divorce application to proceed. However, if the spouses do resume cohabitation in an attempt to reconcile and they fail to do so, with the time period involved exceeding ninety days, the one year period would start again as of the date the unsuccessful reconciliation attempt ended.
How do the grounds of adultery and cruelty work?
These grounds for ending the marriage require that the spouse bringing the action against the other spouse prove fault on the part of that spouse, i.e. that the spouse committed the specific act(s) of adultery or cruelty complained of. An application to the court to end the marriage based on either of these grounds can be brought without waiting for the one year period to elapse. Proving the commission of the act(s) in question in court can be problematical, especially when the other spouse contests the claim by denying having committed the act(s). Furthermore, in order to succeed on either of these grounds the spouse bringing the action must be innocent of any of the acts alleged to have been committed by the other spouse. Divorce proceedings based on either of these grounds can be arduous and expensive.
What is a “legal separation”?
When the spouses in a marriage start to live separate and apart from each other with no intention of resuming cohabitation, it is advisable to obtain a legally-binding and enforceable resolution or settlement of any outstanding issues between the spouses such as spousal support, child support and child custody Such a settlement is commonly called a “legal separation”.
The settlement may be effected by means of a separation agreement worked out by the spouses and/or their respective lawyers which formally spells out the arrangements between the parties relating to the relevant issues. This takes the form of a legal document prepared by a lawyer which is signed by and legally binding on both spouses. In the absence of a separation agreement, one spouse may apply to the court to obtain court-imposed settlement of any of the above-noted issues between the parties.
Why do I need a divorce when I already have a legal separation?
Your marriage is not terminated upon you and your spouse starting to live separate or apart or obtaining a “legal separation”. Only a judgment of the court under the Canada Divorce Act can legally end your marriage. If you plan to remarry, a certificate of divorce issued pursuant to such court judgment would be required in order to obtain a marriage licence.
How is property divided between spouses when the court grants a dissolution of the marriage?
If no prior agreement has been reached by the spouses the court will apply the provisions of the Ontario Family Law Act to apportion the assets between the parties. Contrary to popular belief, the court does not merely split the assets down the middle on a 50-50 basis. Instead, it is the value of property accumulated by the two spouses during the course of the marriage which is divided equally after first deducting the value of property owned by each spouse as of the date of the marriage.
Generally speaking, subject to certain exceptions, this allocation or “equalization” of property between the spouses is designed to award each spouse a one-half share of the value of the property acquired by both spouses during the marriage while allowing each spouse to retain the value of property they originally brought into the marriage.
How are spousal support, child custody and child support dealt with when the court grants a divorce?
If no prior agreement has been reached between the spouses the court will decide these issues. Spousal support is determined based on several factors including the need of the recipient spouse, the payor spouse’s ability to pay, the standard of living of the spouses at the time of separation and the efforts made by the spouses to support themselves. Child custody is awarded based on the best interests of the child and not those of the parents. The amount of child support is calculated according to the Federal Child Support Guidelines as applied to the income level of the payor spouse.
This article has dealt with some of the important legal issues involved in legally ending a marriage in Ontario. If you are considering applying to do so you should obtain proper legal advice from a knowledgeable, experienced divorce lawyer.
For other legal articles which may be of interest in this context please see the following: Where There’s A Legal Will There’s A Way—Your Way and Power of Attorney in Ontario
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