Many of the laws and decisions surrounding divorce in Canada are governed by the Divorce Act.
While the rules and regulations surrounding divorce can be confusing, we have prepared this article, to help you better understand some key concepts relating to divorce.
Whether you are legally married, or living common law, or share a child with someone you were never in a relationship with, this information will be helpful to you.
What Constitutes Grounds For Divorce?
In Ontario, you are able to file for a divorce if one of the following 3 criteria are met:
One Year of Separation
The simplest and easiest way to demonstrate eligibility, or apply for a divorce in Ontario is to live separate and apart from your spouse for a period of at least 12 months. “Separate and apart” does not necessarily mean that you reside in separate dwellings, rather, that your conjugal relationship has ended with no reasonable probability of resuming it.
A divorce is a procedural order that a court will only grant once the underlying issues related to the separation of a couple are resolved. Those can be resolved via a comprehensive separation agreement or by court order and include issues relating to custody (decision-making power over children), access (actual parenting time), child support, spousal support and the equalization of net family property.
If you can prove that your spouse was unfaithful to you, then you may have grounds to seek an immediate divorce. While adultery is considered to be a ground for divorce, it is often very difficult to prove while operating within the rules of evidence – courts are limited in the types of evidence they will deem truthful and will not accept evidence that contains hearsay or that is circumstantial unless very limited exceptions apply. To get a divorce order based on adultery or infidelity, you would need to claim that your former spouse was unfaithful in your divorce application and then you would need to meet the court’s burden of proof to succeed on your claim.
If you are able to show the court that your spouse has been cruel and abusive to you during your marriage, you may be granted an immediate divorce. Cruelty is defined as consistent harassing behaviour and derogatory name-calling, as well as a physical attack or assault.
Divorce applications based on adultery or cruelty are less frequently raised even if issues of infidelity or cruelty exist as the process to obtain a divorce after being separate and apart for one year is more straightforward and generally preferred by judges.
What’s The Difference Between Custody And Access?
These terms cause confusion, so we wanted to clear that up for you: to make matters more complicated, the terminology in the law is changing in the next few months!
Custody refers to the parents’ decision-making power over their children.
This includes decisions pertaining to education, medical care and religious upbringing among other major decisions.
If a parent is granted sole custody, then they are the sole decision-maker when it comes to the safety, health and wellbeing of the children.
More frequently, parents will split custody, this is referred to as having “joint custody” or “shared custody” wherein both parents are involved in the decision making process.
Sometimes, when two competent parents are simply unable to communicate effectively with one another, important decisions and decision-making responsibilities can be divided by category.
Custody arrangements are determined based on the needs of the children and in the best interests of the children.
When parents split decisions into different categories, it is called a parallel parenting relationship and gives parents authority over separate specific issues.
For example, one parent may have decision making authority over education while the other has authority over health care decisions.
Access (also known as parenting time), has nothing to do with decision making.
Rather, it refers strictly to the parenting time that one spends with the child or children of the marriage.
This refers to the schedule of where the child lives or children live, and when.
Parenting plan arrangements can be split however the previously married couple/divorcing couple or the courts have deemed appropriate and consistent with the best interests of the child or children.
Most commonly, however, parents are sharing roughly equal access, whereby each parent has the children around half the time.
Again, this can be split however the family or the courts deem it best.
Common 50/50 schedules often look as follows:
- 2/2/3: This refers to 2 days on, 2 days off and then every other weekend. To clarify, a typical 2/2/3 schedule would have the children with one parent on Mondays, Tuesdays and every other weekend. The children would then be with the alternate parent on Wednesdays, Thursdays and every other weekend.
- Week-to-Week: This schedule tends to be a more popular choice when the children are older. Under this arrangement, children would spend one week straight with one parent and then reside with the alternate parent for the next week, in an alternating fashion.
Co-Parenting Vs. Parallel Parenting
Research shows that when both parents can get along in an amicable and respectful manner, the children benefit.
Showing the children that their parents can be respectful and courteous even if they’re no longer married is a valuable lesson to be able to teach your children.
In a co-parenting relationship, both parents discuss matters affecting the children and come to agreed-upon decisions pertaining to their wellbeing and everyday life.
While co-parenting is ideal, it is not always possible, nor is it always best, depending on the circumstances.
When co-parenting is not a viable option, parallel parenting exists, whereby the divorced couple disengage and have little to no contact with one another.
This must happen when the parents have shown their inability to communicate in a respectful manner with one another.
Do I Have To Go To Court?
Gone are the days when every family law matter ended up in front of a judge.
Over time, the concept of divorce and family has evolved, and the idea now is to move forward in an efficient, effective and respectful manner, with as little conflict as possible.
In the spirit of amicability, and in the best interests of the children, there are now many alternative dispute resolution methods available for settling your family dispute matters.
We have defined a few options below for you to familiarize yourself with:
Counsel-facilitated negotiation: When two like-minded, resolution-oriented lawyers represent each party, the most cost-effective method to resolve a family law matter is by simple negotiation between counsel.
Every separation agreement should be based upon the best interests of the parties’ children and on full and frank financial disclosure.
When lawyers can assist their clients in focusing on these goals, the process of negotiating the parties’ future as a separated couple is straightforward and relatively simple.
Litigation: If one party believes that reaching a negotiated compromise is not possible, they generally opt to go to court.
In court, the initiating party issues an Application and then serves it upon the other party.
The second party serves and files a Response.
The first party may reply to the Response.
Following that, the parties participate in a case conference during which they receive judicial feedback as to the viability of their respective claims and positions.
The goal of the court system is to assist parties to resolve matters on consent, but when that is impossible, the culmination of the process is a trial.
Following a trial, a judge issues a final order dictating the terms of the parties’ separation.
Mediation: This is the process whereby the divorcing parties meet with a neutral third party, a mediator, to resolve any matters and issues between the parties.
The mediator can work with both parties impartially and make suggestions and recommendations to help resolve the issues regarding custody, access, division of property and support.
Mediation is a voluntary process and is generally confidential meaning that potential terms of settlement discussed in mediation cannot later be reiterated in court.
Arbitration: A step further than mediation, here a third party, called the arbitrator, also serves to resolve any matters or disputes between the divorcing parties.
The decisions of an arbitrator are legally binding, whereas a mediator’s are not.
An arbitrator cannot grant you a divorce, but he/she can make decisions regarding custody, access, support and the division of property.
Like with mediation, the arbitrator can only make decisions regarding matters that you bring to them.
Read more about Arbitration.
Mediation/Arbitration: Often referred to as med/arb, the parties select a neutral third party to act as a mediator and simultaneously give that person the right to become an arbitrator in their matter should it not resolve in mediation.
Collaborative Law: A relatively new practise of family law whereby both parties sign an agreement to resolve disputes outside of court.
Here, the parties work with their lawyers and any other agreed-upon third parties to resolve matters.
This is more of a team-based approach to divorce.
Read more about collaborative family law.
What Divorce Professionals Do I Need?
Every divorce is different, and every case has its own set of circumstances.
Your divorce team should consist of the professionals that are relevant to your situation.
You will not likely require all of the options available to you, but it’s good to familiarize yourself with the divorce professionals who can advocate for you and support you through the process.
Lawyer: We highly recommend that you hire a family lawyer who focuses solely on family law to ensure that you’re aware of all your legal rights and obligations. It’s important to also have a skilled negotiator on your side to ensure that you receive a fair and equitable settlement.
Hummingbird Lawyers LLP has a reputable and knowledgeable family law department, and we have been proudly serving our clients in the area of family law effectively and efficiently.
Mediator: A mediator is a third party who can make recommendations to help settle family law disputes on issues surrounding custody, access, parenting plans, division of property and support.
An arbitrator has the same responsibilities as a mediator; the difference being that the arbitrator’s decisions are legally binding.
Parenting Coordinator: This is a qualified third party who is either appointed by the court or agreed upon by the parties to facilitate and assist in parenting matters.
This can be useful if the parties are having difficulty resolving parenting-related issues.
Divorce Coach: A certified divorce coach can be very helpful in helping you navigate the divorce process.
They can refer you to appropriate professionals, can help you organize your financial information and can liaise between you and your lawyer to make you a more efficient client, thereby saving you time and money.
One key role of a divorce coach is to assist you in separating your emotions from your decision making.
A good divorce coach can be an extremely valuable asset to you during your process.
Family Reunification Therapist: This is a professionally designated therapist who helps a parent and child repair damage to their relationship as a result of the divorce or the divorce process.
With increased awareness of the damage caused by parental alienation, family reunification has become a practise supported by the courts and can be either court-ordered or agreed upon by the divorcing parties.
Divorce Financial Analyst: A qualified CDFA (Certified Divorce Financial Analyst) can be very helpful in assisting you to come up with interim and post-divorce budgets.
They can also help you to plan your financial future and paint a picture of what your finances will look like.
They can make recommendations and help you sort out your financial questions.
In Ontario, there are several resources that you can find to learn more about divorce, starting with the Ministry of the Attorney General.
We hope that this information has helped you better understand some divorce terminology and concepts.
For more information or for help with your family law matter, please don’t hesitate to reach out to our qualified, trusted and proven family law department at Hummingbird Lawyers LLP.
In addition to being a very emotional process, divorce can be a very complex legal process too.
Especially when there are children involved, it is always best to seek the advice of a legal professional to understand your rights and obligations.
We can help you answer any questions you may have regarding the divorce process.