What is the Difference Between A Separation
and Divorce in Ontario?
When spouses separate, they often wonder what they have to do to get a legal Ontario separation and divorce.
As you already know, you must first consult with an experienced family law and divorce lawyer to protect your legal rights. When you contact Thomas O’Malley, a top-notch family law and divorce lawyer, at (905) 434-8837, you will get solid legal advice on how to defend your legal rights and get an excellent settlement that solves your family law issues.
When you are legally married to your spouse, you can only legally end or dissolve your marriage by getting a legal divorce from your spouse. However, even if you want to divorce your spouse, there are many other issues that are often involved in a divorce situation. These other issues usually involve child custody, access to the children, child support, spousal support, and the property issues.
You are divorced when you have obtained a court order for a divorce that legally ends your marriage. You are separated from your spouse when you are no longer living with your spouse, whether you are married or in a common-law relationship.
A formal legal separation involves coming to an agreement, usually through a separation agreement, about these family law issues. Whereas a divorce will formally end your marriage to your spouse, a legal separation deals with all the issues related to your separation from your spouse.
A legal separation does not mean that you have divorced your spouse. You get a divorce by formally filing court papers and you have to get a formal or official divorce order and divorce certificate from the court.
What is the Difference Between a Contested
and Uncontested Divorce?
If you have to deal with issues, such as child support, child custody and access, spousal support, and property issues, you should first try to negotiate a separation agreement with your spouse to resolve these issues.
If you do not handle these issues through a separation agreement, you will probably have to go to court to deal with these issues. When you go to court to deal with these issues, you now have what is called a “contested” divorce. A contested divorce means that there are other issues, such as child custody and access, in the case besides your claim for a divorce.
You can also proceed to court about issues of child custody and access, spousal support and property issues without claiming a divorce, especially when you are in a common-law relationship.
A contested divorce is a court proceeding that can cost you thousands of dollars in legal fees. You should try to avoid a contested divorce if you can since a contested divorce is very costly and very stressful.
The most effective and lowest cost approach to avoid a contested divorce when you have other issues, such as child support and child custody, that must be resolved is the following approach:
- Hire a lawyer and negotiate a separation agreement to deal with issues, such as child custody, access to the children, child support, spousal support, and property issues.
- When you have resolved these issues in a signed separation agreement with your spouse, you can then apply to court for an uncontested divorce.
When you have resolved all issues in your separation, generally in a separation agreement, your application to court for a divorce will be what is called an “uncontested” divorce. In other words, you are only making a claim for a divorce since the other issues, such as child custody, in your case have been settled.
If you have not resolved the issues in your case and you apply for a divorce, your spouse can make claims against you for any issues that have not been resolved, such as child support, spousal support, and property issues. You will then have a contested divorce on your hands. It is beneficial to try to negotiate a separation agreement before you try to get a divorce so that you can get an uncontested divorce.
Read this key article on how to get a fair and reasonable separation agreement that protects your family law rights.
However, if you do know that there are certain issues that your spouse will not agree on and your lawyer has advised that your position is reasonable in law, it might make sense to just go to court to start to deal with your family law issues.
To find out the best approach to solve your family law and divorce issues, set up an initial consultation with Thomas O’Malley by calling (905) 434-8837 today. You won’t be disappointed.
Grounds for a Divorce in Ontario
You can get a legal divorce in Canada when there has been a breakdown of the marriage. A breakdown of the marriage can only occur in the following three situations:
- You and your spouse have lived separate and apart for one year or more.
- Your spouse has committed adultery.
- Your spouse has inflicted such physical or mental cruelty of such a kind as to render intolerable the spouses living together as a married couple.
You can get a divorce granted in your case as long as you have been separated from your spouse for one year or more. This is sometimes called “no-fault” divorce. Most spouses get a divorce on the basis of the one-year separation.
You can pursue a divorce on the grounds of adultery or physical or mental cruelty. However, you will have to go to a trial to prove these grounds unless the person against whom those claims are made admits them. This can be a more difficult approach to get a divorce compared to simply getting a no-fault divorce based on the one-year separation rule.
When Does Ontario Divorce Law Consider Spouses
To Be “Separated?”
How do you show that you and your spouse have lived separate and apart for one year? This is usually not a problem in most cases. For example, if you and your spouse live in separate residences, this is usually sufficient proof that you and your spouse live separate and apart. You can even live separate and apart from your spouse even though you and your spouse continue to live in the same house or residence.
As long as you both lead your own separate lives, sleep in different rooms, do not have sexual contact, do not share meals and social activities, and there is minimal communication between you and your spouse, you will then be viewed as living separate and apart from your spouse. However, this situation can be obviously more difficult to prove compared to the situation in which the spouses live in separate residences.
You do not even have to wait a year to start divorce application in court. However, a court will only grant a divorce order when you have lived separate and apart for one year or more at the time the divorce order is made.
What Can Stop Your Divorce!
A court will only delay or stop the granting of a divorce in a few situations. The court must satisfy itself that there has been no collusion or deceitful conduct respecting the divorce application. The court must satisfy itself that reasonable arrangements have been made for child support and, if such arrangements have not been made, to delay the granting of the divorce until such arrangements are made. The court must also be satisfied that there has been no condonation or connivance on the part of the spouse bringing the divorce application respecting the other spouse’s act of adultery or physical or mental cruelty.
If you are involved in a contested divorce, you can usually get a divorce granted even though the court has not yet dealt with the other issues, such as spousal support.
The Superior Court of Justice in Ontario has the jurisdiction to grant a divorce as long as either the husband or wife has been ordinarily resident in Ontario for at least one year prior to the start of the court case for divorce. The husband or wife who is seeking a divorce can bring a divorce application in Ontario by relying on the fact that either he or she living in Ontario for a year or more or the fact that his or her spouse has lived in Ontario for a year or more.
Myths About The Divorce Process in Ontario
As you pay close attention to this page, you feel more and more comfortable about dealing with your separation, divorce or family court case, especially when you are working with an experienced lawyer.
But wait, it doesn’t stop there. You will now be in an even better position to get your divorce in Ontario when you know these5 myths about Ontario divorce law.
This advice can save you a fortune in time, money and frustration.
Myth #1: You Don’t A Need a Lawyer to Get Your Divorce
In fact, one of the worst things you can do is decide not to hire an experienced lawyer to help you with your separation or divorce.
Obviously, most spouses getting separated or divorced are already facing a tremendously difficult and emotionally-draining time in their life. This probably includes you.
The family law issues can easily overwhelm you. Why would you or any spouse take a chance trying to protect their legal rights without the experience and wise counsel of a respected family law and divorce lawyer in your area?
Picture this situation: You are trying to negotiate a reasonable settlement with your former spouse. But your spouse just will not budge. They are locked into a very unreasonable position on an important issue in your case, such as custody of your children.
What’s the answer to this difficult situation? You need to get the advice of an experienced lawyer to help you deal with Ontario divorce law and how it applies to your situation.
Go to this important article on how to work with an experienced family lawyer to protect your legal rights in your separation, divorce or family law case.
Myth #2: You Get to Show How Badly Your Spouse Has Treated You
Undoubtedly, getting separated or divorced is probably one of the difficult situations in anyone’s life.
However, family court is not the place for dealing with the emotional aspects of your separation or divorce. You should certainly get the help of a professional counsellor for dealing with the difficult emotional issues in your separation. A professional counsellor can guide you on the most effective ways to deal with difficult emotionally-draining aspects of the end of your marriage or common-law relationship.
A family court judge will not focus on the emotional aspects of the end of your relationship. The judge will give you and your former spouse good advice and recommendations on how to settle the legal issues in your case.
The judge will not listen to which spouse is at fault for the breakdown of your relationship since this issue usually has no bearing on the legal issues in your case.
An experienced family lawyer can clearly advise and guide you on the important legal issues in your case based on Ontario divorce law.
Myth #3: Ontario Divorce Law Treats Married Spouses The Same As People Who Are Living Together
Ontario divorce law treats married spouses differently than spouses who are living together in some important ways.
For example, you are not considered to be in a common-law relationship or living together with another person from a family law point of view unless you have lived with another person for three years or more or you are in a permanent relationship with a person and you are the natural or adoptive parents of a child.
Common-law spouses cannot make what is called an equalization claim, involving an assessment of the net worth of both spouses, which married spouses can claim.
Myth #4: You Need Your Spouse’s Consent or Signature to Get a Divorce in Ontario
Many people believe you need your spouse’s consent to get a divorce in Ontario. Fortunately, you do not need your spouse’s approval or consent to get a divorce.
Ontario divorce law only requires that a spouse completes a divorce application. Then the spouse files this divorce application at their local courthouse. Your spouse then has thirty days to respond to the divorce application.
Your spouse cannot challenge the divorce claim itself. Your spouse can only make a claim against you about a divorce-related issue, such child custody and access, child support, and spousal support.
When you have signed a separation agreement with your spouse, you have settled those divorce-related issues. Therefore, your spouse cannot challenge your divorce. He or she simply will not respond to your divorce claim. After thirty days have passed, you cannot proceed with your divorce by completing some additional paperwork.
Myth #5: The Ontario Divorce Court Is Not Fair To Men
The Ontario family court system actually does a very good job of treating both men and women fairly in divorce cases.
In fact, Ontario divorce law continues to recognize the important role that both a father and mother play in the lives of their children. Fathers are increasingly having as much time with their children as the mother has with them after their separation and divorce.
The Truth About How To Solve Your Divorce Legal Problems
There is no doubt about it: When you use the services of an experienced divorce lawyer, you can avoid so many problems in getting your divorce and solving your Ontario divorce-related issues.
Imagine feeling totally relieved you have an accomplished divorce lawyer on your side working diligently to protect your legal rights and get your divorce and a good settlement for you.
Soon picture that divorce order in your hand. Feels good, doesn’t it?
Call Thomas O’Malley, a dedicated Ontario divorce lawyer, today at (905) 434-8837 to set up your initial consultation.