Family Law

Divorce is a deeply emotional and financially taxing experience. If you are going through a divorce, one of the most important decisions you will face is selecting the right lawyer to represent you. 

With so many legal professionals offering different services, how can you determine which type of lawyer is the best fit for your situation?

Understanding Divorce Law in Ontario

Divorce law in Ontario is governed by federal legislation under the Divorce Act, as well as provincial laws like the Family Law Act and Children’s Law Reform Act. These laws regulate issues such as:

• The legal process for divorce
• Division of property
• Spousal support
• Decision-making 
• Parenting time
• Child support 

Given the complexity and emotional weight of family law cases, having a skilled family law lawyer is essential in ensuring your rights and interests are protected.

Types of Divorce in Ontario

Before diving into what kind of lawyer you need, it is helpful to understand the types of divorce processes available in Ontario:

1. Uncontested Divorce – Both parties agree on all issues, and the divorce proceeds without trial.
2. Contested Divorce – There is disagreement on one or more issues, requiring legal negotiation or court intervention.
3. Collaborative Divorce – A cooperative process where both parties and their lawyers commit to resolving disputes without going to court.
4. Mediated Divorce – Involves a neutral third-party mediator to help settle, often with the involvement of lawyers in the background.

Each type of divorce may benefit from a different approach and a different kind of lawyer.

What Type of Lawyer is Best for Your Divorce?

1. Family Law Lawyer

A family law lawyer is typically the best choice for most divorces in Ontario. These professionals specialize in areas that directly affect families, including divorce, child custody and parenting time, property division, and child and spousal support.

When to choose this type of lawyer:

• You need comprehensive legal representation.
• Your divorce involves children, property, or support issues.
• You want a lawyer who understands Ontario’s family court system.

Family law lawyers often handle both contested and uncontested divorces, making them versatile and well-suited for a wide range of situations.

2. Collaborative Divorce Lawyer

If you and your spouse are aiming for a more amicable separation, a family law lawyer who works in Collaborative Family Law may be your best option. These lawyers are specially trained in collaborative law, a process where both parties agree to resolve their differences outside of court.

Benefits:

• Your collaborative Family Law lawyer will support and advise you in the context of collaborative negotiations.
• There is a focus on cooperation and mutual respect.
• The process is typically less adversarial and more cost-effective.
• The process often leads to quicker resolutions.

Ideal for:

• Couples who are amicable and can communicate. 
• Those who want to avoid the stress and cost of litigation.

3. Family Law Lawyer Focused on Mediation 

In some cases, spouses opt for mediation as their primary means of resolving their divorce. In mediation, a neutral mediator assists the parties in generating amicable solutions to their family law concerns. Because a mediator cannot give legal advice, having a Family Law lawyer who may assist in mediation can help you understand your rights and obligations.

Why this matters:

• The Family Law lawyer can support and advise you in the context of mediation negotiations.
• The Family Law lawyer can review agreements generated in mediation before you sign.
• You avoid costly court battles while still getting legal guidance.

Factors to Consider When Choosing a Divorce Lawyer 

Regardless of the type of divorce lawyer you choose, here are some critical factors to keep in mind:

1. Experience and Focused Expertise

Look for a lawyer who works specifically in family law and has experience handling cases similar to yours. Family law is nuanced, and having someone with experience comparable to your matter can be an asset.

2. Communication Style

You will be discussing sensitive matters, so it is essential to have a Family Law lawyer who listens, explains things clearly, and respects your concerns. 

3. Cost and Fee Structure

Legal fees in Ontario vary widely. Ask prospective Family Law lawyers about hourly rates, flat fees, or retainers. Some lawyers offer initial consultations at no cost or for a reduced fee.

Conclusion

Choosing the right lawyer for your divorce depends on your specific needs, your relationship with your spouse, and the complexity of your case. Invariably, a family law lawyer is the ideal choice, as they offer comprehensive knowledge in all areas of divorce and family law.

Be sure to take the time to research, ask the right questions, and find a lawyer who can alleviate some of the stress you are facing. While divorce is always difficult, having the right legal support can make the process smoother and more manageable.

Aarushi Gandhi, a Family Law Lawyer at Bair Family Law, offers empathy, unwavering support, and a listening ear when you need it most. Whether you are facing divorce or navigating other complex family law matters, Aarushi is here to guide you with compassion, clarity, and drive.

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Short answer – Generally speaking, no. One parent cannot unilaterally block the other’s parenting time. Family law focuses on the child’s meaningful relationship with both parents, not on either parent’s wishes. 

The Legal Framework

• Equal Starting Point – Until a Court Order or agreement directs otherwise, a child’s parents are equally entitled to decision-making with respect to the child, including decisions about each parent’s interaction with the child. – Section 20(2) of the Children’s Law Reform Act
• If Parents Separate – If the parents of a child separate and the child lives with one of them with the consent of the other, the right of the other to exercise decision-making responsibility with respect to the child is suspended, but not the other’s entitlement to parenting time, unless or until a separation agreement or order provides otherwise – Section 20(4) of the Children’s Law Reform Act
• Parenting Time – Parenting time includes the right to visit with and be visited by the child and includes the same right as a parent to make inquiries and to be given information about the child’s well-being, including in relation to the child’s health and education – Section 20(5) of the Children’s Law Reform Act.
• Best-interests test: Section 24 of the Children’s Law Reform Act and section16 of the Divorce Act lists the factors a court must consider in making parenting orders. A consultation with a Family Law lawyer will allow you to understand how to advance the parenting plan that best serves you and your child.
• Parenting orders & agreements: Once an order or agreement sets out parenting time, both parents must follow it.
• Parental alienation: Courts view unjustified denial of contact as harmful; repeated interference can lead to remedies ranging from make-up time to a change in the primary residence of the child from the residence of the interfering parent to that of the denied parent.

When Contact Can be Limited

The law allows temporary restrictions only when necessary to protect the child, for example:

• Documented family violence or serious risk of harm.
• Substance abuse that endangers the child.
• A parent’s repeated failure to return the child.

These are just a few examples of the circumstance that might prompt a restriction to parenting time. You should consult with a Family Law lawyer to obtain a complete evaluation of the circumstances that impact your child.

Even then, courts prefer supervised visits or safety conditions over a total ban. The concerned parent must move quickly for an interim order. Taking actions on your own to limit or deny parenting time to another parent, without Court oversight and a Court order, is harmful and may backfire. Again, risks and considerations should be evaluated with your Family Law lawyer.

Common myths vs. reality

What a Parent Can Do if Access is Blocked

1. Keep record of conversations regarding parenting time and parenting issues, especially the requests and the denials. [Note – at law, you cannot make an audio or video recording of another without their consent.]
2. Propose alternative dispute resolution such as mediation or arbitration.
3. Ask a family law lawyer to bring an application or a motion in court to achieve the best parenting time plan for your child.

Conclusion

In Ontario, only a judge can limit or end a parent’s time with a child. It must be remembered that best interests of the child is paramount, not adult grievances. If you believe contact is unsafe—or if your parenting time is being wrongfully denied—get prompt advice from a family law lawyer to protect both your rights and your child’s well-being.

Adi Choudhary, a Family Law Lawyer at Bair Family Law, brings empathy, insight, and steady guidance to his work. With a calm and client-focused approach, Adi supports individuals and families navigating separation, parenting disputes, and financial conflicts with clarity and compassion.

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Divorce is a major life event, and along with the emotional challenges, there are significant financial considerations. One of the most common questions people have when facing divorce is: Who will pay for the costs involved? 

The cost of a divorce typically includes legal fees, court fees, and, in some cases, the costs of mediation or other dispute resolution methods. This post will break down the various costs associated with a divorce and explain who may end up covering them.

Common Divorce Costs in Ontario

Before exploring the question of who pays, it is essential to understand the typical costs associated with a divorce. Depending on the complexity of the case, the costs may differ, but these are the most common expenses involved in a divorce:

1. Legal Fees

Hiring a family law lawyer is the most common way to navigate a divorce in Ontario. A divorce lawyer helps guide you through the process, advises on your rights, and represents you in legal proceedings. Legal fees can vary depending on the complexity of the case and the divorce lawyer’s hourly rate. If both spouses agree and the divorce is uncontested, the fees could be modest. However, in cases where the divorce is contested, the legal costs can increase significantly.

2. Court Fees

If your divorce requires you to file paperwork in court, there are court fees that need to be paid. In addition to the filing fee, there may be other costs related to court appearances, document retrieval, or the need to pay for copies of legal documents. Your family law lawyer will guide you in relation to these procedural concerns.

3. Mediation and Alternative Dispute Resolution Costs

Many couples opt for mediation or collaborative divorce to resolve issues amicably, avoid court, and minimize costs. While these methods are often more affordable than traditional litigation, they still carry a fee. Mediators typically charge an hourly rate, which can vary based on their experience and expertise. The couple usually shares the cost of the mediator, but how the fees are split depends on the specific situation and any agreements made between the spouses. Also, for many mediations, each party will have a family law lawyer to support and advise them in the process.

Who Pays for the Divorce Costs?

Now that we understand the types of costs involved in a divorce, the next question is: who is responsible for paying these expenses? The answer is not always straightforward. 

Several factors can influence who will ultimately pay for what. Here’s an overview:

1. Who Files for Divorce? (Applicant vs. Respondent)

In Ontario, the person who commences the divorce process is called the “Applicant,” while the other spouse is the “Respondent.” Simply being the party to file for divorce does not automatically mean that you will be responsible for all the costs associated with it. Both parties are expected to cover their own legal fees, Court costs and other expenses, unless the court orders otherwise.

2. Court Orders for Costs

Ontario courts have discretion over who will pay legal and other divorce-related costs. 

• If one party is found to be acting unreasonably, for example, by dragging out proceedings or refusing to negotiate in good faith, the court may order that party to cover some or all the other party’s legal fees. This can help discourage unnecessary delays or unfair practices that may complicate or prolong the divorce process.
• Further, for an argued stage of a Court proceeding, Rule 24(3) of the Family Law Rules contains a presumption that the successful party is entitled to costs, meaning that a percentage of his/her costs will be paid by the opposing party, by an order of the Court.

3. Shared Responsibility

• Simple/Uncontested Divorce – A claim for divorce is just one claim that can arise on the breakdown of a marriage. A divorce order and Certificate of Divorce confirm the legal termination of the parties’ status as a married couple. However, there are many other claims that can arise from a divorce, such as claims around children, support and property division. These claims are called corollary claims. 

In many cases, the cost of a simple/uncontested divorce, which does not include any corollary claims,  is split equally between the two spouses. 

• Mediation – Similarly, if a couple opts for mediation to avoid a lengthy court battle, they may share the cost of the mediator equally. 

Conclusion

The cost of divorce can vary widely based on factors such as the complexity of the case, each spouse’s financial situation, and the approach taken to resolve disputes. Typically, each party is responsible for their own legal fees. However:

• the court may order one spouse to contribute to the other’s costs, especially in cases of unreasonable conduct by one party; and
• there are certain low conflict issues or resolution approaches for which the parties may equally share their total costs.

Aarushi Gandhi, a Family Law Lawyer, at Bair Family Law, offers empathy, unwavering support, and a listening ear when you need it most. Whether you are facing divorce, or navigating other complex family law matters, Aarushi is here to guide you with compassion, clarity, and drive.

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Why Costs Matter

Going to the court is expensive. Ontario family judges can order one party to contribute to the other’s legal bill so that the process is fair and efficient. This type of award is described as an order for “costs.” Rule 24(3) of the Family Law Rules contains a presumption that the successful party is entitled to costs.

What “Costs” Really Means

A costs award usually covers a portion of lawyer’s fees, disbursements and HST. Full-recovery is rare; most orders are partial indemnity. Partial indemnity orders typically allow for recovery of 40-60 % of actual fees. Courts aim for a number that is reasonable and proportional to the dispute. 

How Judges Decide the Amount

Generally, when fixing costs, a judge looks at the following:

• Outcome: Who was more successful overall?
• Behaviour: Did either side act unreasonably or in bad faith (e.g., hiding disclosure, ignoring deadlines)?
• Offers to settle: A party which gets a better order than their own Offer may get enhanced costs; a party which rejects a fair Offer may have to pay more costs.
• Complexity & importance: What was the reasonableness and proportionality of
  • the party’s behaviour; 
  • their conduct of the case; and 
  • their fees and expenses claimed,

in relation to the importance and complexity of the issues in play? 

Tips to Keep Costs Down

A Family Law lawyer will be able to guide you as to approaches that will manage your costs in relation to a Court action but here are some general tips that will assist in achieving this goal:

1. Settle early if you can. A practical offer to settle protects you; if the other side refuses and does worse at trial in relation to an agued step before the Court, they may get costs against them. To benefit from the cost consequences of an offer to settle, your offer must meet certain requirements. Your Family Law lawyer will ensure that these requirements are met.
2. Be fair, disclose early. Judges penalize parties who initiate or continue conflict for no good reason and fail to disclose important and required information. Work with your Family Law lawyer to ensure that you are meeting your requirements to the Court and, therefore, minimizing any exposure to an order for Costs.
3. Budget with your family law lawyer. Ask for realistic fee estimates and weigh them against what’s at stake.
4. Use other methods of dispute resolution like mediation or arbitration. They’re almost always faster and cheaper than Court action a full trial.

Conclusion

In Ontario, the basic rule is: “costs follow the event.” In layperson’s terms, costs will follow, and be prescribed by, the outcome of each step in a case. Work closely with an experienced family law lawyer to negotiate smartly, act reasonably and minimise the risk of paying the other side’s bills. Litigation is sometimes necessary – but unnecessary costs can still be reduced.

Adi Choudhary, a Family Law Lawyer at Bair Family Law, brings empathy, insight, and steady guidance to his work. With a calm and client-focused approach, Adi supports individuals and families navigating separation, parenting disputes, and financial conflicts with clarity and compassion.

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Introduction 

Family law lawyers are often asked how long spousal support is payable for. Spousal support is a highly discretionary area of law, meaning that both quantum (amount) and duration (length of time spousal support is payable) are highly dependent on the facts of a particular marriage or common law relationship.  This blog entry will focus on ‘duration’, i.e.: the appropriate length of time for which spousal support is payable. 

When determining the duration of spousal support, the first thing that family law lawyers must consider is the objectives for spousal support. For married spouses, these objective are identified in Section 15.2(6) of the Divorce Act, which stipulates that an order for spousal support ought to: 

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
• apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
• relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
• in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

For common law spouses, Section 33(8) of the Family Law Act provides similar objectives for spousal support. And, according to a decision of our Supreme Court of Canada, Bracklow v Bracklow [1999] 1 SCR 420, “No single objective is paramount; all must be borne in mind.”

Since 2008, spousal support has been calculated with reference to the Spousal Support Advisory Guidelines (‘SSAGs’). The SSAGs provide family law lawyers with a framework for determining duration and quantum of spousal support. The SSAGs are not binding, but if a family law judge makes a spousal support order that deviates from the SSAGs, they must justify their reasoning.

So, armed with:

1. the objectives identified in the relevant Acts, above; and 
2. the SSAGs, 

we begin our evaluation of the duration of spousal support in Ontario.

Child Support and Spousal Support are different, but interconnected 

It is important to understand the relationship between child support and spousal support. As stated at Section 38.1(1) of the Family Law Act: “Where a court is considering an application for the support of a child and an application for the support of a spouse, the court shall give priority to the support of the child in determining the applications.”

In cases where both child support and spousal support are payable, child support impacts both the quantum and duration of spousal support. In cases where both child support and spousal support are payable, the SSAGs require a ‘With Child Support’ calculation, resulting in a lower range of spousal support, than in circumstances where no child support is payable. Once all ‘children of the marriage’ have aged out of child support, the duration of spousal support might be extended, to make up for the reduced spousal support that the recipient received while the parties were raising children. 

First, Will there Be Any Spousal Support At All?

Before we get into consideration of the length or quantum of spousal support, the first question a family law lawyer must ask is whether there is entitlement to spousal support. To establish entitlement, family law lawyers will look into various factors, such as the: 

1. length of the relationship, 
2. roles adopted by the parties, 
3. differences in the parties’ incomes, 
4. differences in the parties’ levels of education, and 
5. ages of the parties  at the time of separation. 

If there is entitlement, family law lawyers move forward to next steps.

Termination of Child Support vs. Termination of Spousal Support 

Whereas child support terminates when a child ceases to be a ‘child of the marriage’, there is no such bright line rule when it comes to the termination of spousal support.

In short and mid-term marriages, the SSAGs offer a range with respect to the duration of spousal support. We will address the definition of short and mid-term marriages below.

In long term marriages, or marriages where the ‘rule of 65’ applies, spousal support duration under the SSAGs is indefinite. We will address the definition of long-term marriage and the meaning of the term “indefinite” below.

Relationship Between Duration and Quantum 

The SSAGs do not identify a specific quantum or duration of spousal support. Rather, they offer:

• a range for the quantum of spousal support, from low, mid, to high, and
• a range for the appropriate duration of spousal support.

The SSAG are programed to consider certain factors, such as the parties’ incomes, ages, and length of relationship, in arriving at these ranges.  

Generally, relationships of a longer duration generate spousal support payments of a longer duration. 

The presence of young children and the high dependency of the primary child-caring party may also generate longer durations.

Self-Sufficiency

If there has not been economic disadvantage arising from the relationship, time-limited or ‘transitional’ support is often awarded.

One of the stated objectives of a spousal support order pursuant to Section 15.2(6)(d) of the Divorce Act, is to “in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.” In cases where economic dependency has been established, the Supreme Court of Canada has rejected the suggestion that there is an absolute obligation on the recipient spouse to become self-sufficient (Moge v Moge, [1992] 3 SCR 813). 

However, the longer the relationship, the more intertwined spouse’s financial lives become. In long-term relationships, or relationships where the recipient spouse is nearing retirement age at separation, the recipient spouse may be unable to become self-sufficient, and therefore, indefinite support may be ordered. 

‘Self-sufficiency’ is not only measured by income and employability, but also by the recipient spouse’s wealth (assets vs. debts). In circumstances where the recipient spouse receives a large equalization payment (property settlement) under Part 5 of the Family Law Act, there is an expectation that the recipient spouse will utilize their assets to support themselves or generate income. For example, in the case of LeVan v. LeVan, 32 R.F.L. (6th) 359, where the recipient spouse was expected to eventually receive an equalization payment of $5.3 million, temporary spousal support was terminated upon a full payment of the equalization payment. As you might imagine, the wealth of the recipient spouse would, generally, have to be substantial in order to terminate an otherwise existing spousal support entitlement 

Duration of Relationship and Duration of Spousal Support 

Per Section 15.2(4)(a) of the Divorce Act, ‘the length of time the spouses cohabited’ is one factor the court shall take into consideration, when making an order for spousal support. 

1. Short term marriages (0 – 5 years)

A marriage of 5 years or less is considered a short-term marriage for the purposes of the SSAGs. At the end of a short-term marriage spousal support is generally time-limited in duration. It is intended to get the recipient spouse ‘back on their feet’ after the end of a short relationship or marriage. Some recipient spouses may utilize this time for post-secondary retraining. 

For example, in the case of Tailor v. Tailor, 2008 CarswellOnt 5866, 59 R.F.L. (6th) 316 (S.C.J.), the court ordered spousal support payable for a period of 20 months, after a 10-month cohabitation period. 

An example where the court awarded time-limited spousal support after a 5.5-year relationship is found in Ammar v. Smith, 2021 ONSC 3204. In Ammar, the Court ordered time limited spousal support payable to the wife for one year. The fact that the wife would receive a significant property award, and the judge’s dissatisfaction with the wife’s plan to earn less than minimum wage, spurred the judge to order spousal support payable at $656.00 a month for one year, to be reduced to $1.00 per month after the first year.

Although the length of the relationship provides some guidance to family law lawyers on the issue of duration of spousal support, sometimes short relationships can have long term consequences, and sometimes those consequences are outside of the parties’ control. As the Supreme Court of Canada noted at para 42 of Bracklow: “A spouse’s lack of self-sufficiency may […] arise from […] sources, like:

• the disappearance of the kind of work the spouse was trained to do […] or […];
• ill-health.” 

An example of a case where the recipient spouse was awarded longer term spousal support after a one-year marriage is found in Spurgeon v. Spurgeon, (2001), 15 R.F.L. (5th) 440. In Spurgeon, the wife was in receipt of weekly spousal support payments of $350.00 from her first husband, on the condition that she remained unmarried. She remarried at 56 years old, and the marriage to her second husband lasted only one year. The trial judge awarded the wife one-time lump sum spousal support of $10,000.00, relying heavily on the short length of the marriage to the second husband. The wife appealed this aspect of the decision, and the higher court found that, “While the length of marriage is of some relevance, even a brief marriage can give rise to lengthy and perhaps even permanent support obligations.” The second husband was ordered to pay weekly support to the wife in the amount of $175.00 until the wife’s 65th birthday. 

2. Mid-term marriages (5 – 20 years) 

There is a greater tendency in case law, for family law judges to order time-limited spousal support, in mid-term marriages. 

In the case of Davies v. Quantz, 2010 ONCA 896, the total cohabitation period of the wife and husband was 18 years and 3 months. In the Davies case, both the wife and husband were very highly educated. During the first part of the parties’ relationship, the wife pursued her post-secondary education, and built up her career and clientele in the Montreal area, while the husband pursued his medical career in London, Ontario. After the parties’ children were born, the wife sold her book of clientele and moved from Montreal to London. She did not return to remunerated employment until after the parties separated. Justice Marshman found at trial that spousal support should be time limited. Justice Marshman made a finding that although the relationship was over 18 years, the period that gave rise to the wife’s entitlement for spousal support was only 10 years. Justice Marshman mentioned the wife’s duty to become self-supporting or “eventually readjust her lifestyle” over time. On the facts of the Davies decision, Justice Marshman ordered that spousal support be time-limited to a period of 8 years, which was upheld by the Ontario court of appeal. 

In the case of Fisher v Fisher, 2008 ONCA 11, the Ontario Court of Appeal ordered time-limited spousal support of 7 years, after a 19-year marriage. In Fisher, the husband had a much higher income than the wife upon separation, the parties did not have children of the marriage, and the wife suffered depression because of the husband ending the marriage, which kept her out of the workforce for about one year. The court relied on the wife’s youth, lack of dependents, good health, limited debt, and past work experience, as reasons for limiting the support duration to 7 years. Since the parties did not have children together, the court found the parties economic lives were less intertwined than spouses who had children together, and thus the court leaned heavily on the wife attaining self-sufficiency. 

In the case of Cvetkovic v. Cvetkovic-Gorovic, 2021 ONCA 193, the court considered a 16-year marriage where spousal support had been paid by the husband to the wife for more than 10 years. In the Cvetkovic case, the SSAGs prescribed a duration of support between six-and-a half and thirteen years. The judge made a finding that the wife had not made sufficient efforts to attain self-sufficiency and had enough equity in her home to pay off her debts. The wife’s evidence regarding her inability to maintain employment was also unconvincing to the trial judge. The judge ordered that spousal support would terminate after 10 years. The Cvetkovic case is a good illustration of the various factors the court will consider when determining when, within the duration prescribed by the SSAGs, the court will decide to terminate spousal support in a mid-term marriage. 

3. Long term marriages (20 years or longer) 

If a marriage is 20 years or longer it is generally deemed a long term marriage. For such marriages, the SSAGs prescribe an indefinite period of spousal support. Stated another way, family law judges are not inclined to put a ‘hard’ termination date on a spousal support order when the parties’ marriage lasted 20 years or more. This can be difficult to accept for some payors, especially approaching retirement age. 

Long-term marriages often create financial interdependence that cannot be disentangled in a fixed period. Unless a spousal support recipient can become self-sufficient within a fixed period, the spousal support award will be indefinite. 

Since spousal support is a fact-driven area of law, there are some circumstances where judges will award time-limited support after a long marriage. For example, in the case of Grinyer v. Grinyer, 2008 CanLII 2604 (ON SC), the parties cohabitated for a period of twenty-two years. In the Grinyer decision, Justice Gray made a step-down order for spousal support, with the recipient wife receiving $2,500 per month for the first year and $1,000 per month for the next three years, with spousal support to terminate after 4 years. Justice Gray considered the relative youth of the wife – she was in her early 40s at the time of separation – in determining she could become self-sufficient after 4 years. 

It is important to understand that ‘indefinite’ does not necessarily mean ‘forever’. Per Section 7.5.2 of the SSAGs, ‘support may even be terminated if the basis of the entitlement disappears’. The principle that ‘indefinite’ does not equal ‘forever’ is well illustrated in the case of Hancock v Rutherford, 2018 ONSC 556. The husband was seeking to terminate a Final Order for ‘indefinite’ spousal support on a Motion to Change. The judge hearing the Motion to Change ordered a set termination date for spousal support, which was appealed by the wife. One of the wife’s arguments on appeal was that the Motion judge had erred by ordering a termination date on an ‘indefinite’ order. Nevertheless, the Motion judge’s decision was upheld on appeal. 

In lieu of a termination date, family law judges sometimes order a ‘review date’ for spousal support, to encourage the recipient spouse to work towards self-sufficiency. While spousal support does not automatically terminate at the review date, the review date does allow either spouse to bring a Motion to Change after the date. 

4. “Rule of 65” 

If the length of the cohabitation period, plus the recipient’s age at the date of separation, is more than 65 years, than the ‘Rule of 65’ applies, and spousal support is presumptively payable for an indefinite period per the SSAGs. For example, if the relationship was 15 years long, and the recipient spouse was 50 on the date of separation, the Rule of 65 applies. 

The Rule of 65 does not apply to cohabitation periods of less than 5 years duration.

Irrespective of the parties ages at separation, unless the order or agreement for spousal support explicitly states that spousal support is payable until the death of the recipient, spousal support orders – even ‘indefinite’ orders – are always subject to a material change in circumstances and variation by the Court.  

Conclusion

Parties who are not properly advised of their family law rights and obligations by a knowledgeable and experienced family law lawyer, may inadvertently:

• contract to pay spousal support for a longer period than the SSAGs stipulate, or 
• accept spousal support for a shorter period than the SSAGs suggest they are entitled to.

As revealed by this blog, all aspects of spousal support are complex. They are, perhaps, some of the most unpredictable components of Family Law. Therefore, beware of trying to craft your own deal. The Supreme Court of Canada held at paragraph 53 of Bracklow that: “subject to judicial discretion, the parties –  by contract or conduct –  may enhance, diminish or negate the obligation of mutual support.” 

If you are facing a claim for spousal support, or believe you may have entitlement to spousal support, contact Bair Family Law today for a consultation. Our team of experienced family law lawyers can assist you in determining how the SSAGs apply to the facts of your case and give you a better picture of how long spousal support may be payable for in your circumstances.

Katelyn Anderson, Senior Associate Lawyer

Getting Divorced in Ontario: What to Expect

Let’s face it – divorce is never easy. As a family law lawyer who has sat across from clients about to embark on the separation process, I understand the emotional rollercoaster you’re on right now. Whether you’ve been contemplating this decision for years or recent events have pushed you toward separation, navigating the divorce process in Ontario comes with its own unique challenges and administrative hurdles.  Many clients tell their divorce lawyer they feel overwhelmed by, not just the emotional aspects, but also the practical “what happens next” questions.  That’s completely normal.

The good news?  With the right family law lawyer by your side, this process becomes much more manageable.  Let me walk you through what you need to know as someone who’s helped guide countless Ontario residents through this difficult transition to their next chapter.

How Long Does It Take?

A surprising compliment of variables can come into play when answering this very fair question, many of which are made much simpler with the guidance of an experienced divorce lawyer.  For example, do you know exactly when you and your partner separated, and do the two of you agree upon this date?  Do you know where your marriage certificate is?  Do you know how busy the courts in your area are and how long they generally take to process an application?  We will explore all of these factors and more in this blog! 

As I’m sure you can imagine, no two situations are exactly alike and when a divorce lawyer is asked the very common question of, “how long will this take?” The first thing they will work to determine is where exactly you are in your separation process.  This helps them determine what steps may or may not have happened so far, and is the best bet to begin establishing an approximate timeline. 

In Ontario, you can pursue divorce on three grounds:

• Separation for one-year 
• Cruelty
• Adultery

Most people work with a family law lawyer to file an application for divorce under the first ground, one-year separation.  This “no-fault” approach simplifies the process considerably compared to proving cruelty or adultery, as is the case when filing for a divorce under those two grounds.

Most clients approach the separation process with a preference for expediency.  People can feel optimistic about the next chapter of their lives, perhaps they have a new relationship or partner, or they just recognize that the separation process can be challenging and emotionally tedious.  So, while a one-year separation is the most common path to divorce in Ontario, it’s also probably the aspect of this process that can be the hardest for clients to digest.  “I have to wait a year to get on with my life!” Perhaps, but there is a chance that year has already begun.

The date of separation is the date you and your spouse separate and there is no reasonable prospect that you will resume your relationship.  You can be separated from your spouse while living under the same roof.  Chances are, you will see a divorce lawyer some time after your separation date.  

Simple Divorce 

A simple divorce, also often referred to as “uncontested divorce,” is when both you and your spouse agree to proceed with the divorce.   The divorce process is different when spouses do not agree on other aspects of their separation, such as child and spousal support, custody, parenting time (often referred to as “access”) or property issues.  These other aspects of separation are called “corollary issues.” When corollary issues are in play, spouses often resolve these issues before requesting to obtain a simple divorce, and this is, generally, the best practice. Certain corollary claims, such as claims in relation to property, can be negatively affected if you finalize your divorce prior to resolving them. For this reason, a good divorce lawyer will always do an evaluation as to the presence of corollary issues before simply commencing a claim for a simple/uncontested divorce.

Processing Timelines Vary by Courthouse

An experienced family law lawyer will tell you that the processing times for divorce applications vary significantly depending on which courthouse you apply to and that Courthouse’s current workload.  For example, at the time of writing this blog, at the Barrie courthouse, a divorce lawyer typically estimates that a simple divorce application will take between 2 and 5 months to process.

However, as any honest divorce lawyer will explain, these timelines can fluctuate based on court delays, staff shortages, or high volumes of cases.  Some courthouses move more quickly than others, which is something your family law lawyer can advise you about based on local knowledge and experience.

Getting Started: The Paperwork

When you’re ready to begin, your divorce lawyer will help you determine which court to apply to.  This depends on where you live – something a family law lawyer can quickly clarify for your specific situation.  If you have questions about what Courthouse you need to apply to, you can access a list of all court locations here.

Next comes document gathering. You’ll need:

1. Your Marriage Certificate.
   1. if you no longer have your marriage certificate, you can apply online here to obtain it online from Service Ontario. 
2. Your Court documents, including your divorce application.
3. To pay Court fees.

In Ontario, there are three “filing fees” that must be paid.  At the time of writing of this blog they are:

• the Divorce Application fee of $224.00, 
• the Affidavit For Divorce fee of $445.00, and 
• the Certificate Of Divorce of $25.00.

This amounts to total fees of $694.00, at the time of writing this blog.

A good family law lawyer can guide you through completing these forms correctly the first time, preventing costly delays that often happen when people try to navigate the system without a divorce lawyer.

Important Considerations

Before rushing to file, remember that divorce involves more than just ending your marriage legally.  A divorce lawyer will advise you that there are several important issues you’ll need to address:

• Decision making responsibility and parenting time arrangements;
• Child and spousal support calculations;
• Spousal support considerations; and
• Property division.

You do not want to jeopardize your rights in relation to these critical issues by rushing ahead with a claim for a simple/uncontested divorce without first evaluating and addressing these issues.

If you haven’t resolved these matters, talk to a family law lawyer before proceeding.  An experienced divorce lawyer can ensure you’re taking the right steps at the right time.  You want to tackle this process in the proper sequence – especially when important financial and family matters are at stake.

Working with a knowledgeable family law lawyer can make all the difference in navigating this challenging life transition smoothly and protecting your interests for the future.​​​​​​​​​​​​​​​​

Perla Smith, Associate Lawyer

It’s on the Rise – What You Should Know

A “grey divorce” refers to the dissolution of a marriage among older adults, typically those over the age of fifty. Regardless of the parties’ age at the time of separation, the breakdown of a marriage is never easy; however, couples over the age of fifty face a unique set of challenges when separating. 

In the last few decades, there has been a steady rise in the average age of divorce in Canada. According to data released by Statistics Canada, even though the average length of marriage did not change significantly between 1970 and 2020, the average age at divorce in 1970 was 38 years while the average age at divorce by 2020 was 46 years. Another chart released by Statistics Canada revealed that over the last thirty years, age-specific divorce rates have fallen for young adults (35 to 49 years old age group), but have risen slightly for older adults (50 to 64 years old age group).   

So, what could be the reasons behind the increasing number of grey divorces? There is no one-size-fits-all answer to this; however, the following is a non-exhaustive list of factors that may lead to a grey divorce:

• Empty nest syndrome: As the children grow older and leave the family home, some parents experience grief and loneliness. This can be especially hard for a stay-at-home parent whose life revolves around caring for the children. Although there is no specific data in Canada regarding the correlation between empty nest syndrome and marriage breakdown, the rise of grey divorces in Canada is often associated with this condition. 
• Age at marriage: Again, accordingly to Statistic’s Canada data, about three decades ago, the average age at marriage was about 25 years and the average age at divorce was 38 years. As of 2020, the average age at marriage increased to 30 years and the average age at divorce was 46 years. These numbers are only expected to go higher with the upcoming generations focusing more on financial independence before considering marriage, and the inability to buy a property in the current market. 
• Changing mindset: Society’s attitude toward divorce has shifted in general, and the negative connotations around divorce have diminished. Women have become more educated and financially independent and are less likely to stay in marriages that do not meet their needs, even if it means ending the relationship after spending decades together. 
• Life expectancy: Research shows that life expectancy has increased globally. People are more likely to reconsider their life choices when they realize that they have a limited number of years left, and this may involve their choice of their life partner. Once a 65-year-old client told me that she was “done being married”. She said, “We had a good marriage and a good life together, but I am 65 years old, and with my health challenges I do not expect to live over 70 years. The children have their own lives, and my spouse is a workaholic. I want to live my life, have fun, and do things that make me happy, I cannot wait for him forever.” 

These reasons may or may not resonate with you, however, if you are over fifty and have decided to end your marriage or a long-term common-law relationship, the following key considerations will help you navigate through these challenging times.

1. Legal Process

• Grey divorces follow the same steps as any other divorce in Ontario. A family law matter may involve uncontested divorce or a divorce with claims for corollary relief. Claims for corollary relief include claims in relation to parenting, support and the division of property, as well as other claims naturally arising on the breakdown of a marriage. Grey divorces generally do not involve children, eliminating parenting related claims, so there may be more limited issues to be addressed, such as support and property division. Still this process can be emotionally and financially draining. It is always a good idea to consult with a family law lawyer to understand your rights and obligations. Having a lawyer involved may also help in setting realistic expectations. 

• In Canada, divorce is governed by the Divorce Act, and can be obtained on the following grounds under section 8(2):
• Separation for at least one year: The parties must be separated for at least one year, before applying for divorce. It is important to note that you and your spouse can live separate and apart under the same roof. 
• Adultery: If one spouse has committed adultery, the other spouse can file for divorce without waiting for a one-year separation period. Unless the adultery is admitted, evidence of adultery must be provided.
• Cruelty: If one spouse has treated the other spouse with physical or mental cruelty to the extent that it makes it unreasonable to continue living together, this can be grounds for divorce without the one-year separation requirement. The threshold for this ground for divorce is very high.

1.1 Date of Separation: 

In long marriages, sometimes couples separate and then get back together and then separate again. Or they start using separate bedrooms. It is important to determine when the relationship ended beyond the scope of reconciliation. If there are disputed dates of separation, or more than one date of separation, a Court will consider the following factors:

1. Did one party clearly express their intention to separate, even if the other party was in denial, through written communication such as text messages or emails?
2. When did the parties begin to present themselves as no longer being together to family, friends, and others?
3. When did the parties start separating their finances?
4. When did the parties begin sleeping in separate bedrooms or stop having sexual relations?
5. When did the parties stop sharing meals or attending social events together?
6. When did the parties begin dividing childcare responsibilities or start caring for the children separately? 

This is not an exhaustive list but captures some of the Court’s critical considerations.

2. Property Division

• In Ontario, property division is governed by the Family Law Act, which dictates that any assets and debts accumulated during the marriage are divided equally, subject to some identified exclusions and deductions.
• This includes real estate, vehicles, savings, pensions, investments, and other assets. For older couples, pensions and retirement savings are often among the most significant assets.
• The division of property can be convoluted, especially when a couple is approaching retirement or is already retired. The timing of the divorce can also affect the division of pensions, RRSPs, and other retirement savings.
• Division of the matrimonial home can also be challenging. In the post-pandemic real estate market, property prices have increased exponentially. For couples approaching retirement or already retired, it is nearly impossible to qualify for a mortgage, unless their current home has substantial equity, and they have the option of splitting the equity and downsizing. Otherwise, buying out the interests of one spouse or selling the home and splitting the equity may not result in one or either party having sufficient funds to buy another home or pay for their expenses for the spend the rest of their lives.
• Sometimes parties to a grey divorce have been previously married and have existing legal obligations to a previous spouse. This must be factored into their resolution.
• Sometimes parties to a grey divorce bring substantial assets into a second marriage. Generally speaking, the value of assets that are brought into the marriage is not shared, at law, on the parties’ separation. A limited asset holding spouse may be surprised to learn that they will not share in substantial pre-marriage wealth.
• Sometimes a party to a grey divorce will invite the other into a home owned by that party on the date of marriage, and the parties will make this their family home. Older parties may have amassed a good deal of equity in such a property. While, generally speaking, the value of assets brought into the marriage are not shared, this is, typically, not true of a home that is ordinarily occupied by the parties as the family home (and meets the test to become a “matrimonial home”). Therefore, the home owing spouse may be surprised to see the substantial value of their pre-marriage equity shared.

3. Spousal Support

• Definition – The Department of Justice Canada defines spousal support as “the money that one spouse may have to pay to the other spouse for their financial support following a separation or divorce. It is sometimes called “alimony” or “maintenance.” Spousal support is usually paid on a monthly basis, but it can be paid as a lump sum.” 
• Spousal Support Advisory Guidelines – The Spousal Support Advisory Guidelines (SSAG) are non-binding guidelines used in Canada to help determine the amount and duration of spousal support. They offer a framework for calculating support based on various factors. 
• Factors to be Considered – The quantum and duration of Spousal Support will be significantly affected by the length of the marriage and the financial needs, means and circumstances of both parties, including such factors as the income differences between spouses, the presence of children and the roles adopted by the parties during the marriage. 
• Duration of Support:
  • For grey divorces, spousal support may become a significant concern, especially when the parties are over or close to the retirement age, or when they are already retired and living on a fixed income. 
  • Grey divorces may involve relationships of significant duration, thereby increasing the likelihood of longer term, or even indefinite, spousal support. 
  • Additionally, under the SSAG, when the length of the marriage exceeds five years, and the age of the support recipient plus the duration of the marriage exceeds 65 years, the duration of spousal support becomes indefinite. This is called the Rule of 65. While, as the name suggests, the SSAGs are “advisory” and not binding, the Courts have discretion to follow or deviate from the Guidelines, on a case-to-case basis. 
  • From the perspective of the support recipient, a 30-year-old support recipient would generally be expected to achieve self-sufficiency, except in case of a disability. However, the same cannot be expected from a 60-year-old support recipient who has never worked or a 65-year-old recipient who has retired with limited income. 
  • From the perspective of a support payor, while a 30-year-old support payor would generally be expected to work and maximize his/her income; at the age of 65, a support payor might be found to be entitled to retire and might not be expected to work indefinitely, even if his/her obligation to support a former spouse was characterized as indefinite in the first instance. 
• Amount of Support – When considering the amount of spousal support to be paid in grey divorces, relationships of extended duration, with parties of greater years, incline a Court to seek to try to equalize the parties’ net disposable incomes, by way of support.
• Complexity Requires Advice – It is imperative that you consult with a family law lawyer to know your rights and obligations. As a support recipient, you must not shortchange yourself or deprive yourself of your entitlement. Once you sign a domestic contract without legal advice or accept support below your entitlement, it can be extremely challenging, and financially daunting, to change spousal support later on. 

4. Retirement Considerations

• Many Canadians have concerns about their retirement plans, and these anxieties are amplified by divorce. The division of assets and pensions, once intended to fund a shared retirement, may now be expected to support two separate households.
• Divorce during retirement or the years leading up to it often brings complicated financial issues, as both spouses may have limited time to rebuild their wealth or plan their future.
• One must consider how any pensions, investments, and retirement savings will be equalized and how each party will support themselves moving forward. This consideration may be more daunting if there is a significant income disparity between the parties. 

5. Tax Implications

There are potential tax consequences when dividing retirement accounts, investments, and pensions. For instance, transferring funds between spouses may be subject to tax if it is not done correctly. It is crucial to consult with a family law lawyer and a financial advisor/accountant to ensure that your property division and/or support arrangement do not result in unintended tax consequences. 

6. Estate Planning

As we mature, we must ensure that we plan for our inevitable passing, as well as any possible separation or divorce. 

The Ontario Family Law Act governs the sharing of property between married spouses in the event of a separation. It can also come in to play on the passing of a spouse. It is important to know that, on the passing of a spouse, the surviving spouse can elect to receive his or her entitlement to property sharing identified under the Ontario Family Law Act, instead of any provision made for him or her under the deceased spouse’s Will or under laws that govern division of property where a Will is not in place. Older spouses should be particularly alert to this possible outcome.

After a divorce, it is crucial to update your will, powers of attorney for property and personal care, and beneficiary designations, particularly if you had previously listed your spouse as the primary beneficiary or your attorney for property and/or personal care.

7. Emotional Impact

• Grey divorces may lead to isolation and loneliness and therefore it is imperative that the parties build a support system for themselves consisting of their friends, family, and professionals qualified to provide psychological assistance in accordance with each party’s needs.
• Grey divorces can be emotionally challenging, not only for the separating couple, but also for their children and grandchildren if they feel the need to choose between one of the parents or act as a mediator. The added responsibility of caring for their elderly parents can also strain their personal lives, and social gatherings may become awkward with both parents present.
• Further, if a spouse to a grey divorce is on their second or third marriage, children of an earlier marriage may feel greatly threatened by the claims that the new spouse may have to the income and assets of their parent. In these circumstances, the children sometimes prompt their parent to consider some form of marriage contract, to ensure that the children’s inheritances are not adversely affected. The spouse to a grey divorce must separate his/her wishes around allocation of his/her income and assets from those of his/her children.

8. Cognitive and Mental Health Capacity

With age, some people may experience memory loss, declined cognitive abilities, difficulty understanding complex legal and financial issues, the inability to appreciate the nature and consequences of legal separation and signing domestic contracts, and other mental health issues. Negotiating an enforceable settlement with a person who lacks capacity can be extremely difficult and expensive. 

What should you do if your spouse lacks capacity? An experienced family law lawyer can help you navigate a settlement with a person with capacity issues. In these circumstances, both parties need to be represented by lawyers, who may also involve other experts such as qualified capacity assessors.

9. Alternative Dispute Resolution vs. Court

If you:

• do not have an ongoing source of income and your assets and resources are limited, 
• or you simply seek a more amicable and cost-efficient method of resolving your divorce concerns,

it is highly recommended that you exhaust all mutually agreeable alternate dispute resolution methods before considering litigation. Good alternative dispute resolution options include counsel negotiation, mediation, and collaborative practice. 

If you are navigating a grey divorce in Ontario, it may be useful to consult with a family lawyer who has great experience with these types of cases. At Bair Family Law, our focus is on solutions, healing and restoration for our clients. We can help with the division of assets, spousal support, and any other matters related to divorce, under the laws of Ontario, and we are skilled a recognizing and addressing the needs of our clients of mature years.

Surabhi Pathak
Associate Lawyer

Surabhi Pathak, a family lawyer at Bair Family Law, focuses on making complex family law dynamics uncomplicated, and transforming challenges into rewarding solutions. She attentively listens to her clients’ needs, devising solutions with them and not for them. The key to her success is guiding clients to options for resolution that suit their individual circumstances. Whether serving as a powerful advocate in the Court context or skillfully advancing low conflict approaches to settlement, she believes in coaching her clients and helping them to make informed decisions for successful, long-term outcomes. Her commitment to this approach allows her clients to achieve high satisfaction, efficient and amicable resolutions to their family law concerns. Read More…