Divorce
Separation and divorce are emotionally difficult processes. We’re here to help.
Divorce is the formal dissolution of the marriage pronounced by the Ontario Court. In Ontario, a separated couple can obtain a divorce one year after their date of separation, without having to specify the reason for the divorce.
However, divorce can become contentious when there are disputes regarding cruelty, adultery, or where there is no consensus on the date of separation.
It is highly recommended that advice from and representation by an experienced family law lawyer is sought before embarking on this process.
Clients at Holam Law PC can be assured that our legal team will help them navigate the requirements to obtain a divorce in Ontario, while helping them prioritize and resolve other paramount concerns, such as child custody and parenting schedules, child and spousal support and property division.
Ontario family law differentiates between the terms “separation” and “divorce”. Separation applies to both married couples and common-law couples, while divorce only pertains to married couples.
Separation refers to the physical and emotional act of separating from a spouse, or the dissolution of the marriage or relationship.
The date of separation refers to the date of the dissolution of your relationship or marriage, which involves parties making it known to family, friends and the general public that they have ended the relationship, with no opportunity to reconcile.
However, when spouses cannot agree, it is crucial to seek the advice of an experienced family law lawyer.
In Canada, there are three legal reasons or grounds for divorce:
Separation
If you and your spouse have been separated for a period of 12 months or more, you can obtain a divorce on the grounds of separation. Separation means your marriage has ended with no possibility of reconciliation.
Spouses can live separate and apart in their matrimonial home, or reside in separate residences. Living arrangements do not affect a party’s ability to obtain a divorce on the basis of separation.
However, some spouses cannot agree on the date of separation, which then becomes a fact that must be proven on the balance of probabilities. If there is a dispute on your date of separation, you should consult with a divorce lawyer in Ontario.
Cruelty
Cruelty must be proven on the balance of probabilities, meaning a party must produce evidence of cruelty in the marriage necessitating a divorce. If proven in Court, a party can obtain a divorce less than twelve months from the date of separation.
If you believe that there may be grounds for a divorce based on cruelty, you should consult with a divorce lawyer in Ontario.
Adultery
Adultery must be proven on a balance of probabilities, meaning a party must produce evidence of adultery in the marriage necessitating a divorce. If proven in Court, a party is able to obtain a divorce less than twelve months from the date of separation.
Spouses are often unlikely to admit in Court that they have engaged in cruelty or adultery, which means the grounds for divorce may be opposed, resulting in increased legal fees and litigation.
If you believe that there may be grounds for a divorce based on adultery, you should consult with a divorce lawyer in Ontario.
Most divorcing parties rely on separation as their grounds for divorce, and will wait the required 12-month period from the date of separation to obtain a divorce.
The process to obtain a divorce in Ontario can be complex. If any corollary claims are made related to parenting issues, child support, spousal support, and property division, then the parties must also apply for a divorce in the correct Ontario jurisdiction.
Our family lawyers are prepared to guide you through the following areas:
+ Do I have to share my pension with my spouse?
If you are married and you do not have a Marriage Contract specifically excluding your pension, then it will be considered an asset, just like any other asset, that must be equalized when you separate.+ Can my spouse kick me out of the matrimonial home if I’m not on title?
Because the matrimonial home has special status under Ontario family law, regardless of who holds title, both spouses have equal rights of possession to the home until those rights are voluntarily relinquished, or through an order of the Court. A party has the option of asking the Court for an order granting him/her exclusive possession of the home. In short, no, you cannot be immediately kicked out of the home if you are not on title.+ The matrimonial home is only in my name. What happens if I separate/divorce?
If you have a Marriage Contract setting out how this asset is to be divided upon separation, good for you! The terms of your contract will dictate how the home will be divided between you and your former spouse. However, if you do not have a Marriage Contract, the matrimonial home has special status under Ontario family law regardless of who holds title. The value of your home at the time of separation will therefore be subject to equalization between you and your former spouse.+ What happens to our pet if I separate/divorce?
Many of us consider our pets to be members of our family, but in Ontario, pets are still considered as property. Pets will therefore be divided according to ownership. That being said, it’s not uncommon for people to negotiate terms into their Separation Agreement providing for how their beloved pet will be shared and cared for.+ What happens to the engagement ring if I get separated/divorced?
It depends. If the wedding is called off, there may be a requirement to return the engagement ring. If the wedding is not called off and you get married, the ring is yours, however you may need to share in the appreciation of the value of the ring between the date of marriage and date of separation. To ensure that there is no misunderstanding, a Cohabitation Agreement or Marriage Contract can set out how the ring will be treated in the event of a separation.+ What is an uncontested divorce?
An uncontested divorce is when one party files an application for divorce, and the other spouse does not file an answer because he/she does not oppose or contest the divorce. Generally at this stage, the parties have already resolved all of the issues arising from their separation such as custody, access, child support, property division/equalization, etc., and are ready to move forward with finalizing their divorce. In other instances, the parties may just be looking to obtain a divorce order at that stage in their lives.+ When would be a good time to make my will?
If you don’t already have a will and you are going through a separation, we strongly recommend that you make a will once all the issues in your separation have been resolved. If you do have a will and it was made prior to your marriage, your will will be automatically revoked upon your subsequent marriage unless the will was made in contemplation of that marriage. It is therefore highly recommended that you have a will done immediately after the issues in your separation have been resolved.The first step in resolving your family dispute is to contact us for a consultation so we can better understand your circumstances. Consultations can take place by telephone or Zoom.
Call us at 365-608-6161, email us at info@holamlaw.com, or fill out the form below to schedule an appointment today.