Separation & Divorce
It doesn't have to be complicated
On average 70,000 people in Canada get divorced annually – of which about 28,000 are in Ontario. Of all the divorce cases only 1% go to trial, while 99% are settled outside of trial. Of the 99%, a large number attend court for motions, orders, case conferences, settlement conferences and court directions. The cost of uncontested divorce is on average $2,000, while contested divorce can range from $7,000 to $75,000+. What does this mean?
This means, the cost of a divorce is largely dependent on how the parties choose to approach the process. As lawyers, we inform you of your rights and fight to get you what you want within the limitations of the law. The cost/risk analysis and final decision rest with you. It is always advisable to take the approach which is most efficient, cost effective and mutually agreeable. Of course, a civil approach may not always be available. No matter the situation we are here to inform you, guide you and ensure you have a strong advocate to represent you.
Where Do I Start?
It depends. The approach you take will be largely dependent on what you want to achieve, the issues in dispute (if any) and the dynamic between the parties. We have had cases where parties have simply agreed on all the terms and signed a mutually agreed Separation Agreement followed by filing of divorce after a year. We have also had cases where one party has left the country to evade their financial responsibilities, parties refusing to pay their mahr, refusal to disclosing business records and parties depleting their assets maliciously, to name a few. As you can imagine, the legal approaches to these situations are vastly different. For a better idea as to how you should proceed based on your particular set of facts make an appointment with one of our licensed lawyers. We provide free consultations by appointment only.
The Basic Law
The Divorce Act dictates the criteria for obtaining a divorce in Canada. As a no-fault proceeding, the system functions on the basis of a breakdown of marriage which is established when:
The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceedings; or
The spouse whom the divorce proceeding is brought has, since celebration of the marriage,
Committed adultery, or
Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Note, living separate and apart does not always mean having physically lived in a different home. There are a number of factors to consider including the intention of the parties, where each party slept, daily activities and other elements. It should also be noted that a reconciliation of more than ninety days could mean the separation date is reset.
The courts have been clear that a spouse cannot benefit from their own misconduct; accordingly a spouse who cheats cannot request a divorce based on adultery nor can they be a co-applicant in requesting a divorce on the basis of adultery. The innocent party making the application on the basis of adultery or physical/mental cruelty must prove it.
The separation date is also called the evaluation date. This is the date on which the parties have either physical separated (ie. One party has left the home) or have disclosed their intention to separate. An intention to separate may be as simple as stating the fact to your spouse. Separation can also be construed through behaviour. A few examples of behaviour indication separation are: the parties no longer sleep in the same bed, they do no interact unless they have to, one party has moved to their own section of the home or the parties no longer participate in the same activities, like having family meals.
The separation date is used to calculate the division of assets. The value of assets and property on the separation date are used in the equalization calculations. This includes the value of each bank account, investments, pensions, homes, vehicles, boats, jewelry and other items of value. Determination of when items were bought in relation to the separation date is also significant in order to exclude or include them in the calculations.
Often parties can agree on a separation date; however, in cases where one spouse wants to exclude/include a transaction from the formula, they may argue a date that is more beneficial to them. It is important parties have a means of proving the separation date when it is in dispute.
Contested v. Uncontested Divorce
Uncontested Divorce (aka Simple Divorce) is when there are no issues in dispute between the parties. They have resolved and agreed to all issues (custody, access, support and property division) via a Separation Agreement. The parties can either apply jointly for the divorce or one party may commence a petition for divorce and have it served on the other spouse. If the other spouse does not contest the petition for divorce, the divorce is then granted. It takes approximately 8 – 16 weeks for an uncontested divorce to be finalized.
A Contested Divorce means one or both parties have a claim against the other which has not been resolved through an agreement. This usually includes custody, access, support and property division. The parties must first finalize these issues either through an agreement or by way of a court order before being granted a divorce. This process can take between 1.5 to 2.5 years if the parties do not come to an agreement.