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17 Common Myths About Divorce In Ontario

  1. My spouse moved out of our home six months ago so we are separated, right?

Probably, but not necessarily.

The Date of Separation is the date upon which there was no reasonable prospect of reconciliation between the parties, which means that there was no realistic chance of you and your spouse getting back together. This is sometimes, but not always, the same date that one of the spouses moves out of the home.

The Date of Separation is usually marked by the parties sleeping in separate rooms, no longer attending family functions and other social events together, no longer doing chores for each other, having a definitive conversation about the end of the relationship, and/or no longer introducing each other as spouses. These are just a few examples of factors that may help determine the Date of Separation.

  1. I can get a fast divorce if my spouse and I agree to property, custody and support issues.

Reaching agreement on all of the key issues in a divorce always is helpful because it moves things along more quickly and reduces the cost. A signed separation agreement, which is essentially a contract between ex-spouses, is key. It details child custody and access, child and spousal support, and division of net family property. It is important to get legal advice before making any agreements with your spouse because obtaining legal advice is the only way to ensure that any agreements that you make are in your best interests.

In Ontario, family law requires a couple to live “separate and apart” for one full year before a divorce is granted. Unlike in, say, Nevada or Mexico, there is no such thing as a “quickie” divorce in Ontario or anywhere else in Canada. After living “separate and apart” for one year, either the husband or the wife may apply for a divorce decree. A divorce decree is necessary if either spouse wishes to re-marry.

  1. Grandparents have a right to see their grandchildren.

The law in Ontario allows anyone to apply for access to any child. The court will award access to anyone who can prove that spending structured time with the child(ren) it is in the child(ren)’s best interests. Depending on the facts of the case, judge may award grandparents access or visitation rights. An important factor in deciding whether grandparents, or anyone else other than a parent, will be awarded access is how often they spend time with the child(ren) and how strong a bond they have with the child(ren). Also, if grandparents are to be given access, they must be a party to the Agreement or court case that provides them with this right, because the court and Agreements cannot bind third parties.

  1. I have proof that my spouse cheated on me. So, an unfaithful spouse can be punished by being made to pay more support than is provided in the guidelines, right?

As painful as being cheated on can be, family court will not use support payment levels to punish bad behavior. Although judges are not bound by the Spousal Support Advisory Guidelines, they must explain why they will not follow them if they choose not to do so. A spouse being unfaithful is not a factor used to determine the amount of spousal support payable. Factors that are used to resolve the issue of spousal support include the income of the parties, the length of the relationship, any previous written agreements, the responsibilities of the parties throughout the relationship, and the ability of each party to be/become self-sufficient after separation. .

  1. Mothers always get custody of the children?

Mothers no longer get custody automatically.

Custody includes making major decisions for the children. There are two types of custody arrangements: Sole Custody and Joint Custody. Sole Custody means that one parent is responsible for making major decisions for the children and Joint Custody means that both parents are responsible for making major decisions for the children. Major decisions include those regarding the children’s education, religion, and medical treatment.

  1. The law treats a traditional marriage and my common-law marriage the same when a relationship ends.?

In some ways it does, but in some ways it doesn’t. The issues of custody, access, and child support are usually resolved the same way regardless of whether the spouses are actually married. The issue of spousal support will also be treated the same provided that the spouses have lived together for at least three years or have lived together for less than three years and have had or adopted a child together.

The process for dividing property in a common-law marriage is very different than the rules that apply in a traditional marriage. For example, there is no such thing as an “equalization payment” to divide a couple’s assets at the end of a common-law relationship. Generally speaking, the common-law partner who bought the item or asset owns it, but you need to be able to prove that you bought it. Sometimes, common-law spouses must divide their assets with each other, such as when they can show that they have acted like a married couple in various respects or what the courts call a “joint family venture”. Even when this can be proven, a different method of dividing property is used than the method used when the spouses are actually married.

  1. I peeked into my spouse’s computer and found evidence of my spouse’s affair on email. I can print those emails and give them to my lawyer as proof of adultery.

Recently, the Ontario Court of Appeal created a new cause for action, called the Tort Of Intrusion Upon Seclusion, so your spouse can sue you for snooping. Also, having an affair is likely irrelevant to your family law matter.

  1. My former spouse is not paying the child support that we agreed on. In fact, my payments are 6 months behind. I won’t give access to the children until I receive my payments.

Looking at it from a child’s point of view, you cannot deprive a child access to his or her father or mother. As well, the court takes a dim view of withholding access to children. Courts are concerned with the best interests of the children. This means two things: Courts are in favour of ensuring that children spend time with both of their parents, unless there are strong reasons against doing so. The court will not deprive a child of visits with a parent even if that parent is not paying child support. It is a better idea to report non-payment of support to the Family Responsibility Office (FRO) and have them take appropriate steps so that your support resumes promptly.

  1. I am in a common-law relationship and my partner brought children to the relationship but I am not the biological parent, so I will not have to pay child support if the relationship ends.

Courts are concerned with the best interest of the child. So, if you have been acting as a mother or father to someone else’s children, such as taking them on vacation, helping with homework, buying them presents, sending them to camp, or being called “mom” or “dad,” you may have to pay child support.

  1. My parents gave me $140,000 which we used to pay off the mortgage on the matrimonial home. Now that we’re splitting up, I want that money back. My parents wanted me to have it, not my spouse.

Money from a gift, or inheritance received by one spouse that goes to paying for the family home remains as part of the value of the house and cannot be excluded from the value of the matrimonial home. But, if a gift or inheritance goes to a specific spouse and is kept separate, it can probably remain with the recipient if careful records are kept before and during marriage. If the money was given to you after you married, you need to be able to prove that the money was given to you and also was kept separate from your spouse’s assets while you were married.

  1. I am planning to leave the marriage so it is alright for me to clean out our joint bank account.

Circumstances vary and your particular situation will be taken into consideration. But, as a general rule, the spouse who takes the money may well be required to return it to the joint account or the amount you took will be included in the total assets to be divided and calculated into the equalization payment. If you leave your spouse with no money to use to pay his or her bills, you may find yourself in front of a judge explaining why you behaved this way.

  1. My car just gave out! I need another one right away just to see my kids. I know a dealer who can get me a real deal on a used Mercedes.

During any legal dispute, optics are important. If you purchase an expensive car, or other asset, after you separate, it may be very difficult for your spouse or a judge to believe that you have little income available to pay support. Always ask yourself how a judge would look at it. The court takes a dim view of large expendi­tures before a division of assets is agreed upon. A car with a reputation for being expensive might create a needless issue but a mod­erately priced, safety-checked, used car that is within your means would probably be alright, especially if the car is needed to go to work or transport your children.

  1. The divorce has caused me so much stress that I need a vacation; my mother loaned me the money.

During any legal dispute, optics are important. Always ask yourself how a judge would look at it. Taking a pricey vacation at a deluxe resort while you are complaining about high child support payments means the court is likely to look askance at the trip. But if the price is reasonable and within your means – for instance, a discount air fare to stay free at someone’s vacation condo in the Bahamas – the trip may not be viewed negatively.

  1. I can get even with my spouse by posting all the bad things about their affair on Facebook and Twitter. My spouse deserves public shaming.

It is a bad idea to complain publicly because your spouse can tell the court about comments you made about them on social media. Plus social media postings can harm the children, if they have access or are told about the comments. In any event, negative comments about a spouse on Facebook, Twitter, Instagram and other media can be used as evidence against you if the proceedings go to trial. Remember, social media are not private and judges frown on public shaming.

  1. It is easier if I move out of the house as soon as possible because we are fighting constantly. Keeping the peace and my peace of mind is important.

It may be easier in the short-term, but simply moving out is bad strategy in a divorce as it may affect your claim for custody and/or access. To a judge, it may appear that you “abandoned” your family responsibilities while, in fact, you were trying to reduce conflict. Read our Best Interest of the Children.

  1. Lawyers make the divorce process more complicated than it needs be.

This doesn’t happen if you have a good lawyer and are clear about what you want to achieve in the divorce. Even when a divorce is amicable, having a lawyer review documents before they are signed will help ensure that the agreements comply with the law, are enforceable, and are fair to you. Read our Field Guide to Divorce.

  1. Lawyers make the divorce process more expensive than it needs to be.

Many people believe that lawyers make divorce expensive. Lawyers and judges follow the law, such as the Divorce Act and the Family Law Act. While it is true that family court could be more electronic-friendly and we need more judges to hear family law matters so the process is speedier, the biggest factor driving up fees for divorce lawyers is couples who are unable to reach an agreement. Being inflexible, unrelenting and unwilling to compromise, unable to move on with your life, focusing on your need to “get back” at your spouse instead concentrating on the needs of your children, and keep fighting just to annoy your ex are good ways to drain your bank account. Having a lawyer help you understand the issues in your matter and how to resolve them fairly can help save you time and money because fixing an agreement that was improperly drafted is almost always more expensive and time consuming that getting it done right the first time. Read our Reducing the Cost of Your Divorce.

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