Family Law FAQs
1. I want a divorce, but my spouse does not. What can I do?
Getting a divorce does not have to be a unanimous decision, however before you can begin filing for a divorce you must have been separated for a year - this is one of the possible grounds for divorce and is the most common route people take. The other two grounds for divorce are adultery and cruelty, however the burden of proof is much higher for these cases and proving in court will be lengthy, costly, and draining. The first step to getting a divorce is separating from your spouse, which can be as simple as sending a text message expressing your wish to separate. Within the year, you should take steps to physically distance yourself from your partner, such as moving to another place, sleeping in a different room, having separate bank accounts, not engaging in any social events with your spouse, etc. After a year, you may file for a divorce and have your spouse served with divorce papers. If he/she refuses to show up to court, your lawyer will have to default them for failing to appear. After exhausting all possible methods of contact, the judge will grant you a divorce by default and likely all the terms you asked for.
2. Who gets custody of the kids?
This will be up to the courts to decide based on the “best interests of the child”. In most cases where the child(ren) lived with both of their parents, both parents will get an equal right to their child(ren) and share responsibilities.
3. Do I have to go to court to get a divorce?
No. You never have to step foot inside a court to get a divorce as long as both parties are willing to communicate amicably and agree to the terms of their separation.
4. What is the difference between a separation and divorce?
A separation is when a couple decides to live apart from each other because the relationship has broken down. The couple may be married, or they may be unmarried but living together like a married couple in a common-law relationship. A divorce is when a court officially ends a marriage. Separation is one of the necessary conditions for divorce.
5. Am I entitled to spousal support?
You may be entitled to spousal support if you were either: married, lived together as a couple for at least three years, were in a relationship of some permanence for any length of time and had a child together. However, spousal support is not an automatic right associated with the breakdown of a marriage.
In Ontario, you are only eligible for spousal support:
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To compensate a spouse for hardship or opportunities lost due to the marriage or its breakdown;
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To fulfill a contractual agreement, expressed or implied, that the parties were responsible for each other’s support; or
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On a non-compensatory basis, to assist a spouse in need where there is the capacity to pay, even in the absence of a contractual or compensatory foundation for the obligation.
6. Who pays child support and how is it calculated?
There is a set calculation method for child support. Factors that determine child support include gross income and the number of children.
7. What happens to our home in separation or divorce?
Both parties have an equal right to the matrimonial home regardless of who owns it. This means both parties can live in it during separation and the proceeds of the sale of the house is split according to equalization. If one spouse wants to keep the matrimonial home, they can negotiate a purchase of the other’s share, or one spouse may voluntarily transfer their interest in the matrimonial home to the other spouse as part of the divorce settlement. If an agreement cannot be made regarding the matrimonial home, the Partition Act provides the court with the power to force the sale.