Can I get divorced without going to Court?
No it is not possible to get divorced without a Court Order. However, it is possible to settle all issues between a couple by other methods in advance of a divorce. If this occurs the divorce can proceed on the basis of affidavit evidence and there is likely no need for either party to attend Court.
What are the grounds for a divorce?
The ground used most often is a separation of 1 year. To obtain a divorce it just has to be shown the parties have been separate and apart (a physical separation is not absolutely necessary to meet the definition of separated) for at least 1 year. It should be noted the process can be started any time after separation but it will require the timelines to run in order to obtain the divorce. Other much more rarely used grounds are adultery and cruelty.
What is a legal separation?
There is no such thing is a legal separation. A separation occurs where one party has reached the conclusion the relationship is at an end. Several factors point to a separation including a physical relocation, division of finances, ceasing relationship counselling, ceasing a social relationship etc. The date of separation is important for married spouses because that is the date when time is frozen to calculate each party’s net family property and any equalization owing to the other spouse. It is also the date the clock begins ticking for the year separation to obtain a divorce.
When am I considered common law?
The legislation states a party is common law after three years living together in a conjugal relationship or one year if there is a child between the parties. It is important to know this is the definition for family law purposes. Other matters such as income tax provisions or group benefits plans have their own definitions of a spouse.
Are there different rights between married spouses than common law?
Yes and no. Under the law married spouses are entitled to an equal division of net family property. This means that they share equally in the benefits (assets) and drawbacks (debts) of a relationship. This is a legislated right. For common law individuals there is no law to an equal division. It will depend on the facts of every situation. The common law (judge made law) can be used as a guide to determine what rights a common law spouse is likely to have but there is no definitive answer for the division of property. Another major difference is the rights to the home where the parties reside. In a marriage the home the parties live in is called the matrimonial home. A matrimonial home is unique under the law because both parties are entitled to reside there post separation and both are entitled to a legal interest in the property regardless of whose name the property is registered. For common law spouses the starting point is the legal ownership of whose name is on the deed. To acquire an interest in the property a person will have to show her or she contributed in a meaningful way to acquiring or maintaining the property during the relationship.
On the other hand, spousal support does not differentiate between married spouses and common law spouses. Nor is there a difference in parental rights for someone who is married or common law.
How do I know what to pay in child support?
There are Federal Child Support Guidelines which are income based. For employed individuals the important number to know is a person’s line 150 income. The formula is completed by inputing the number of children, the children’s residence and the provincial location of the payor. Self employed individuals are more difficult because a number of write offs for income tax purposes (capital cost allowances, home office expenses) likely do not qualify for child support purposes. In cases like these income is added back into the payor’s overall income to determine the appropriate payment. In the event a payor is alleged to be underemployed there is also a way to assign income (based on the totality of evidence) to someone so that the child support is calculated based on what a person in similar circumstances should be able to earn.
Can the Federal Child Support Guidelines be changed?
In certain limited situations the answer is yes. Where each parent has physical care of a child more than 40% of the time we call this a shared parenting relationship which could (not guaranteed) have an effect on the amount of child support payable. Another change in Guideline Support can occur where a child attends a post secondary educational institution. The amount to be paid will depend on the residency of the child, the resources of each party and the amount of funding the child has for his or her post secondary education. Finally, another way to deviate from a Guideline Support payment is through an undue hardship claim. This is a very limited way to change support because the test for meeting the threshold is so high. A payor can have his or her support lowered if the payment would cause the payor an inability to meet his or her own needs. It is likely not enough that a payor can’t meet his or her debt requirements, continue residing in his or her chosen accommodation, or care for children of a new relationship. Every situation must be considered on the merits.
How is spousal support calculated?
Unlike child support, there is no chart to determine a spousal support payment. Instead there are Spousal Support Advisory Guidelines (SSAG) which provide a range of support. The SSAGS are not binding but they are often followed in practice. To determine the amount of support payable to an individual various factors are used such as the length of the relationship, opportunities given up by an individual, health, age, minor children etc.
Who gets custody of the children?
In law both parents are equally entitled to custody until there is a signed Separation Agreement or Court Order determining otherwise.
My spouse and I are in the process separating, can I get an immediate order for interim custody of the children?
While it is possible for an order for such an order to be made, these orders are rare and very difficult to obtain. The Court process prohibits emergency/urgent order for all issues including custody, support, restraining orders, property etc. unless the highest of thresholds is met. This does not mean a parent is entitled to bring such a motion if he or she is concerned the parties will be unable to agree on the appropriate parenting schedule for the children. It requires more such as the discovery a party intends to leave the jurisdiction with a child, is addicted to drugs or alcohol to the point of placing a child at risk or any other situation based on evidence which requires an immediate decision.
My spouse has a pension. What is it worth?
For most pensions it is impossible to know simply by looking at the documents what a pension is worth. To determine value it is important that a pension valuation be completed by an actuary. In Ontario new regulations came into effect at the beginning of 2012 which determine how a pension is valued. Further information on this issue can be found on the Financial Services Commission of Ontario website.
How do I know if I am owed a payment from my spouse?
If you are married, the law determines your entitlement. To calculate whether a payment is owed we take the value of assets and debts on the date of separation. It must be noted though that certain assets may be excluded depending on how they were received, such as by inheritance. There is the added component of marriage assets and debts which may also factor into the calculation. Once the full formula is utilized the value of each party’s net family property is calculated. The spouse who has the higher net family property will owe the other ½ of the difference. By way of example, if one spouse is worth $100.00 and the other is worth $50.00, the $100.00 spouse owes the other $25.00 so that at the end of the process each is worth $75.00. The complicating factor in this process is often that assets and debts may be joint which can have an effect on the overall division of assets and debts.
For common law spouses the above process does not apply. It will be fact specific whether or not a payment is owed from one party to the other.