FAQ on Ontario Divorces

Legal

1. How long does divorce take in Ontario?

The length of time it takes to finalize a divorce in Ontario can vary widely depending on several factors. If both parties agree on the terms of the divorce, including child custody, property division, and financial support, the process can be relatively quick. In straightforward cases, it can take as little as a few months to finalize.

However, if there are disagreements or if one party contests the divorce, it might take a much longer time. Contested divorces can drag on for many months or even years, particularly if they involve complex issues such as business valuation, significant assets, or child custody disputes.

Additionally, the court’s schedule can also affect how long the process takes. If there are delays or a backlog of cases, this can extend the timeline further. Some courts, like Ottawa’s, are prone to backlogs. Others aren’t. Consulting with a local lawyer is the best way to find out timelines in your location.

2. How to file for divorce?

Filing for divorce is like completing your income taxes. Some people are comfortable doing it themselves, others use software assistance or go to a tax preparer. If you think you would be comfortable filing for divorce yourself, you will need to complete several forms and file those either in person at your local courthouse, or online through the Justice Services Online (JSO) portal that is accessible through My Ontario. You can get the forms, and instructions for completing them, at a helpful website called http://www.stepstojustice.ca

3. Does it matter who files first? What are the advantages and disadvantages of filing first?

In Ontario, the fact that one spouse files for divorce before the other does not significantly affect the outcome of the divorce itself. The courts operate on the principle of equality, and simply being the first to file doesn’t grant any particular advantage or disadvantage to either party regarding the division of assets, child custody, or support arrangements.

However, there can be a few practical considerations surrounding who files first. For instance, the person who initiates the divorce may have some control over the initial terms of the separation and could potentially set the tone for negotiations. Filing first could also mean that the filing spouse has a chance to present their case first in court, should there be disputes that lead to a court appearance.

That said, it’s more beneficial for both parties to focus on cooperation and reaching an amicable separation rather than on who files first. Engaging in open communication, possibly through mediation, can help both parties achieve a more peaceful resolution.

4. What are the legal options for an Ontario divorce?

To obtain a divorce Order – the Order that actually terminates your marriage and lets you get married again if you want – you need to prove one of three things to the Court:

• You and your partner have been separated for 1 year;
• Your partner engaged in cruelty during the marriage; or
• Your partner has engaged in adultery during the marriage.

It often requires lengthy, complex, court proceedings to prove cruelty or adultery, while separation is simple and straight forward. Because of the complexity, most lawyers advise that it is much better to opt for a divorce based on separation rather than trying to prove the other party was at fault.

5. How are assets split in ON?

In Ontario married couples are required to equalize their assets when they get divorced. There can be exceptions for very short marriages, and common law couples do not need to share assets when they separate. The general rule in divorce is that each person should calculate their net assets (net assets are assets minus debt) gained during the marriage. That is (Net Assets on date of separation) minus (Net Assets on date of marriage). That number is considered that person’s Net Family Property (NFP). Then two NFP numbers are compared, and the person with the larger NFP transfers money (or property) to the other person to make the two NFP numbers equal. For a clear, graphic illustration of this process, check out: https://disclosureclinic.com/wp-content/uploads/2021/10/Equalization-Explained.pdf

6. Can you get a divorce without going to court?

You can prepare a separation agreement – a binding legal contract that sets out all the terms that would otherwise go into a Divorce Order – without going to court. But if you want an actual, legal termination of your marriage, you or your ex-spouse will have to file court documents to obtain a Divorce Order. If you already have a separation agreement, you can usually get the Divorce Order without actually seeing a judge, but you will have to file some documents with the court and pay a fee.

7. Do you have to be separated before divorce?

It’s important to understand what separation means in the law. It does not mean that one of you has to move out of the family home. Rather, separation is a state of mind when you’re both agreed that the marriage is over. You may continue to live in the same home for financial or parenting reasons, but you’re no longer living as a couple. You can apply for the divorce at any time after separation, but the actual divorce order will not be granted by the court until you have been separated for at least one year.

8. Do both parties have to agree to divorce?

If one partner does not want to get divorced, they can make the process a bit slower and more painful. They can make it impossible to settle issues without going to court to argue each point. What they cannot do, is prevent the court from eventually issuing a Divorce Order. No one can force you to stay married if you do not want to. In Ontario, there is even a law that says that your ex-spouse cannot try to prevent you from obtaining a religious divorce if you are of a faith that requires a separate religious divorce procedure.

9. What is the average cost of a divorce?

It’s impossible to give an average cost, instead you need to consider a range of prices. At the lowest end, someone who completes and files all the documents themselves would only need to pay the Court filing fees, which add up to approximately $700. At the high end, a couple who go to court and fight over every possible aspect of their separation can easily spend several hundred thousand dollars including appeals. With good will and negotiation, mediation or collaboration, a couple who are seeking to resolve matters rather than litigate them will end up spending $5-20,000.

10. How is child support calculated?

Child support is calculated based on tables created by the government. You can find child support calculators here: https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.aspx or here: https://www.mysupportcalculator.ca/calculator This second calculator will let you figure out child support when there is shared parenting time.

11. What is the new “parenting arrangement” terminology?

The new parenting language in the Canadian Divorce Act emphasizes the importance of prioritizing the best interests of the child. It has replaced terms like “custody” and “access” with “decision making” and “parenting time” focusing on the roles of parents and how they can work together to support their children’s well-being. The Act encourages cooperative parenting and outlines factors to consider when determining a child’s needs, such as their physical, emotional, and psychological safety.

12. Is custody typically awarded to Mother or Father?

Ontario Courts, “parental decision making” (used to be “custody”) decisions are based on the best interests of the child rather than a presumption in favor of either the mother or the father. Courts consider various factors, including the child’s emotional needs, the parents’ ability to provide for those needs, and the child’s preferences, if they are of sufficient age and maturity. Each case is unique, and outcomes can vary widely depending on individual circumstances. It’s always beneficial for parents to work together amicably, where possible, to create an opportunity for joint decision making.

13. At what age can a child decide which parent to live with?

Technically, at age 16 a young person can emancipate from their parents and decide whether to live with one or the other or neither. Between age 12 and 16, the child cannot decide … but their wishes will be taken into consideration as part of deciding what is in the child’s best interests.

14. What is a wife/husband entitled to in a divorce?

When a married couple divorce, they divide the assets that they built during the marriage equally. This usually means that if one spouse has more assets (savings, pensions, property) than the other, that one will have to make an equalization payment. Then, depending on the circumstances, there may be an entitlement to spousal support, sometimes referred to as alimony or maintenance. Either a husband or a wife can be entitled to spousal support, though in a traditional marriage where the woman has stayed home and looked after children while the man worked and advanced his career it is generally the woman who receives spousal support.

15. How are debts separated and paid off?

See discussion, above, on how assets are split. The process looks at net assets, which means that debts are subtracted from assets in the calculation. Often the parties will agree to pay off debts as part of the Net Family Property equalization, especially since the largest debts are often mortgages or lines of credit secured by the family home. Those must be settled when the home is either sold, or when one ex-spouse buys out the other one’s share in the home.

16. Is spousal support (alimony) required or mandatory?

In Canada, the money that one ex-spouse may pay the other after a divorce is referred to as Spousal Support, not alimony or spousal maintenance. Spousal support is not mandatory, and people can agree in a marriage contract or separation agreement that neither one of them will collect spousal support. If the ex-spouses cannot agree and go to court, it is common – but not always the result – that the spouse with the higher income will be ordered to pay spousal support.

17. What disqualifies you from alimony?

Entitlement to spousal support is complicated, based on a sacrifices made during the marriage or on need, and is best discussed with a competent lawyer. At the same time, if a man or woman is entitled to spousal support from their ex-partner, that entitlement does not go away if the recipient enters a new relationship.

18. How long does spousal support last?

There are complicated calculations that go into figuring out a general range of spousal support that an ex-spouse could be entitled to receive and for how long they’re entitled to receive it. The calculations take into account the length of the marriage, the ex-spouse’s age at the time of divorce, incomes of payor and recipient, and other factors. You can find a calculator that will give you a rough idea of what spousal support might be, and how long it would last at the website http://www.mysupportcalculator.ca

19. What is legal aid and how does it work? How do you qualify? How & Where can I apply for legal aid?

https://www.legalaid.on.ca/faq/simple-divorce/