How to Start a Divorce in Ontario

The basics

• What do I need to get a divorce? 
• How soon can I get divorced? 
• My spouse and I don’t have anything, can we just get divorced?

These are all questions that clients have asked me early in the process, even at our first meeting. 

At your first consultation, your divorce lawyer should provide you with a road map to get where you need to go, based on your unique situation and needs. My goal at each consultation is to ensure my clients leave a meeting feeling confident and empowered, because now they know what lies ahead, and the steps they need to take to move forward.

Settlement vs. Divorce

Something that is helpful to understand is that a settlement and a divorce are two different things. 

• Your settlement is the final resolution of your case. A settlement details the arrangements that you and your partner have agreed upon, such as arrangements for your children, child and spousal support, the final division of marital assets, etcetera 
• Divorce is the legal process that terminates a marriage, after which you are free to remarry.

It may be helpful to think about it as a two-step process. The first step is typically to arrive at a settlement. The second step is when your divorce lawyer files an Application for Divorce with the Court. 

It is recommended that you reach a full and final settlement before applying for a divorce. This is because the completion of a divorce may limit your ability to pursue other claims arising from the breakdown of your marriage which remain unsettled at the time of the divorce. It may be legally impossible to make a claim for division of property two years after the marriage is terminated by divorce, or six years after the date of separation, which ever date comes first.

First things first

As with most any service, there is a qualification process that divorce lawyers go through to determine the unique aspects of your situation and what exactly you need to begin the divorce process. It is safe to say that no two divorce cases are the same. Normally, you will want to deal with all aspects of the separation before you apply to the Court to obtain a divorce. Here are just some of the categories that your divorce lawyer will first think about:

• How long have you been married?
• How long have you been separated?
• Do you have children, if so, how many? Do your children live at home?
• Who is the higher earner in the home?
• Will a party pay, or receive, child or spousal support?
• Do you own any property? If so, do you own it jointly with your partner?

There may also be some questions to better understand the circumstances that lead to your separation. Even your spouse’s temperament and personality can be helpful when deciding on a particular approach for your case. The answers to these questions will determine the specific path that your divorce lawyer will design for you. 

Be ready!

Once you and your divorce lawyer have discussed the answers to these questions, he or she will ensure that all the issues that apply to your specific case are addressed in your final settlement. For example:

• child and spousal support,
• property division,
• payment of section 7 expenses (these can include extracurricular activities costs, childcare costs, dental and other medical expenses not covered by OHIP, post-secondary education expenses, etc.).

Be prepared to inform your divorce lawyer of specifics about your situation even at your very first consultation. For example, you and your spouse’s income information could come in handy, so you can leave the meeting with an idea of the amount of child support you can expect to pay or receive. 

Once you have a settlement, your divorce lawyer will ensure that the agreement you’ve reached is captured in a legal document. That document could be called a Separation Agreement or a Court Order. Your Separation Agreement or Court Order is a legally binding document that provides details of:

• Child support (how much support is owed, if any);
• Spousal support (how much support is owed, for how long. Alternatively it could confirm that no support is owed at all);
• Property division (what asset each party is walking away with, for example a sum of money, what vehicles each is keeping, etc.);
• Living arrangements;

among other important and essential terms that your divorce lawyer will include to make the document strong and enforceable.

A Separation Agreement or a Final Court Order that deals with all the important aspects of your exact situation typically ends the settlement phase of the process.

I have a settlement, now what?

There are three grounds for divorce in Ontario. They are:

1. one-year separation,
2. adultery and
3. cruelty. 

The most common ground to apply for a Divorce is one-year separation (living separate and apart for one year). Living “separate and apart” does not require the parties to live in separate residences. A separated spouse can live separate and apart in the same household. 

The other two grounds (adultery and cruelty) are rarely used in our court system because a party will likely have a difficult time proving those in court, and the standard of proof to grant a divorce on either one of those grounds can be very high.

Beware of the common misconception about divorce in Ontario, which is that separation and divorce are the same thing. Being separated and being divorced are different things. For our purposes here we will define the two as:

Typically, your settlement will include a term that allows the parties to apply for an “uncontested divorce”, and the cost to be equally shared between the parties, or in some other manner agreed upon by the parties. 

Once an Application for Divorce is submitted to the court, a judge will typically grant the divorce if the spouses make proper arrangements for their children. This means that a judge can actually refuse to grant a divorce if he or she is not satisfied that parents have made suitable arrangements for the children, specifically, arrangements such as:

• payment of child support where child support is owed and,
• parenting time (most commonly known as “custody arrangements”).

No two proceedings are ever the same, and you and your partner’s specific circumstances will impact these steps. Below is a high-level summary of the process as we have described it here:

1. Separation
2. Get a divorce lawyer and have an initial meeting
3. Draft and agree upon a settlement agreement or obtain a court order from the court
4. Apply for divorce to terminate your marriage
5. Abide by the conditions of your Separation Agreement or your Court Order as they pertain to:
   • Spousal support
   • Child support
   • Property division, etc.

Conclusion

We will always be more comfortable going through something when we know what to expect. Separation and divorce are not something that the average person has a lot of experience with, but your divorce lawyer does. So, if anything in this article was new to you, you are not alone. Our clients trust that we will answer their questions in detail. This in turn leaves them with a sense of empowerment over the process. As divorce lawyers we are highly experienced in this process and can help provide you with the clarity and comfort that you need.