Frequently Asked Questions About Family Law & Divorce
Separation & Divorce
Couples are considered separated once one spouse expresses the intention to end the relationship, and they begin living “separate and apart” with no likelihood of reconciliation (in certain circumstances, this can include parties residing under the same roof).
Divorce is a court order granted under the federal Divorce Act that formally terminates a marriage.
To obtain a divorce order under the Divorce Act, there must have been a “breakdown of the marriage”. In most cases, this is demonstrated when separated spouses have lived separate and apart for one year before applying for divorce. The one-year separation period may be waived in limited circumstances involving adultery or cruelty.
A separation agreement is a contract documenting a separated couple’s agreements about various matters at issue in their separation, including child and spousal support, parenting time and decision-making responsibility, and division of property. Separation agreements are usually created through negotiation or mediation and can form the basis for the terms of the parties’ divorce order (if they were legally married).
Most family law cases are settled without the need for a trial. There are a variety of alternative dispute resolution processes to help separated spouses resolve their outstanding disputes. However, some matters are best resolved by trial, such as where there is a history of family violence or a high level of conflict.
Alternative dispute resolution methods are used to settle disputes between parties outside of the court process (litigation). Negotiation, mediation, and arbitration are all examples of alternative dispute resolution. Ontario family law requires a separated couple to try to resolve their conflict using alternative dispute resolution before resorting to a trial.
Family mediation is an alternative dispute resolution method in which an independent facilitator, known as a mediator, helps spouses resolve disputes and reach an agreement. The mediator helps diffuse conflict and facilitates respectful communication. Mediation can be used to resolve an entire separation or divorce or can help settle a specific issue. A mediator does not have the power to make a binding decision on any issues.
Family arbitration is a process for resolving family law disputes. An independent adjudicator known as an arbitrator hears both parties’ evidence and makes a binding decision. The parties control the time and place of the arbitration, which is more informal and private than a court trial.
Spousal support is money paid by one spouse to the other, and is intended to prevent a spouse from suffering financial hardship after the couple separates. It is often used to balance the scales between the primary income-earning spouse and a spouse whose responsibilities in the relationship prevented them from earning income (for example, because they stayed home to raise the couple’s children).
Spousal support is calculated by considering several factors, including the length of the relationship, the spouse’s roles in the relationship, and the claimant spouse’s level of financial independence. The federal Spousal Support Advisory Guidelines can provide guidance for spousal support calculations but are not law (as is the case with the Federal Child Support Guidelines).
Yes. Common law spouses may claim spousal support under Ontario’s Family Law Act if the couple cohabited continuously for a period of three years or more or cohabited in a relationship of some permanence and have children together.
Parenting time, formerly known as “access”, is the amount of time a couple’s children spend in the care of each parent after they separate.
Decision-making responsibility, formerly known as “custody”, is a parent’s ability to make decisions about their child’s upbringing. Decision-making responsibility can be granted to one or both parents and gives them the legal right to make decisions about the child’s education, medical care, and religious upbringing.
Grandparents do not automatically have the right to have contact with their grandchildren. However, grandparents can apply for a contact order under either the federal Divorce Act if the parents were married or Ontario’s Children’s Law Reform Act if they were unmarried. Contact orders are only granted if contact between the grandparent and child is in the child’s best interests.
Child support is the money paid by one parent to the other to cover certain costs of raising their child(ren). As parents are obligated to support their children financially, the right to child support belongs to the child and not the recipient parent.
Child support in Ontario is calculated using the formula set out in the Child Support Guidelines. The formula considers the payor parent’s income and the number of children they support. The basic child support paid each month is often referred to as the “table amount”, as the Child Support Guidelines have tables for calculating support payments.
Special, extraordinary, or “section 7” expenses are all names for the same type of child support. They are costs not covered by the Child Support Guidelines tables. Some examples of special expenses are childcare fees, medical insurance premiums, school expenses, and extracurricular activity costs.
Yes. A parent has a duty to financially support their child, regardless of whether they were in a common law relationship or formally married. Common law spouses can bring a claim for child support under Ontario’s Family Law Act.
A parenting plan documents each party’s parental rights and responsibilities, such as decision-making responsibility and parenting time. Some parenting plans also set rules for how the parents communicate and establish a consistent routine for the child’s care. The terms of a parenting plan can be integrated into the couple’s separation agreement or court order.
A parent who has primary residence of a child may or may not be able to move away with the child. If the parent is simply changing residences – that is, they are not moving far enough to impact the other parent’s parenting time or decision-making responsibilities – they only need to advise the other parent of the change.
However, if the proposed relocation will affect another person’s agreed-upon or court-ordered parenting time, decision-making responsibilities, or contact with the child, the parent must provide all affected parties with notice of their intentions. The affected parties may contest the move, requiring the court to decide whether the move is in the child’s best interests.
Division of Property
Equalization is a process under the Family Law Act that ensures separated spouses share the wealth and increased family property value obtained throughout their marriage. Equalization only applies to married couples.
Financial disclosure is the legal obligation for separated spouses to exchange all relevant information about their finances. Complete and accurate financial disclosure is required to calculate spousal support, child support, and division of family property.
No. Unlike married couples, common law spouses in Ontario are not automatically entitled to any property division. A number of factors determine whether a common law spouse is entitled to a division of property, including but not limited to the length of the relationship, whether there are any children, financial contributions of the parties throughout the relationship, etc. It is important to obtain legal advice from a family lawyer on this issue as soon possible after separation.
The matrimonial home is the residence where a married couple lived with their children. In some circumstances, a family may have more than one matrimonial home, such as a family cottage that was “ordinarily occupied” by the couple and their children. The term “matrimonial home” carries specific legal protections that only apply to married spouses.
The value of a matrimonial home is shared between married spouses under the Family Law Act’s equalization process. However, the matrimonial home is treated differently than other family property as it is often the largest family asset.
Both spouses have an equal right of possession of the matrimonial home, even if only one spouse owns the home. A spouse may be given exclusive possession of the home by court order or through a separation agreement between the parties.
No. The concept of the matrimonial home does not apply to common law spouses. If the common law spouses jointly owned the home, they may both be entitled to half its value; however, either spouse may make a claim to a larger share of the value. In some circumstances, a common law spouse who was not on the property title may bring a claim against the owning spouse for the non-owning spouse’s contributions to the home (for example, mortgage payments or labour for improvements). It is important to obtain legal advice from a family lawyer on this issue as soon possible after separation.