Under Ontario law, a couple must live “separate and apart” for one year before a court will grant a divorce. There are two narrow exceptions to this rule: If one spouse can prove to a judge’s satisfaction that the other was unfaithful, or if it can be proved that a spouse inflicted physical harm or mental cruelty on their partner or the
children, a divorce may be granted in less than one year.
We know that a divorce can be expensive. We have lawyers who charge different rates so we always strive to keep your cost low. Also, there are alternatives to court such as a mediated or arbitrated divorce, which cost less. If the divorce is contested, your cost will vary depending on how long it takes to reach an agreement with your spouse and whether we end up in court.
An overriding concern of the court is that the “best interests of the children” are taken into account during a divorce, and that it is generally important for the children to spend time with each of their parents. In practical terms, this means that children are entitled to have as much contact as possible with each parent, provided doing so is in the child’s best interest.
A court starts by assuming there will be joint custody and deviates from this position in limited circumstance. When this happens, usually it is because the Courts feel it is in the best interest of the children for one parent to have sole custody.
There are several ways. One is a sworn affidavit in which you affirm under oath the date on which you and your spouse began living separate lives – even if both spouses remain in the matrimonial home. Evidence of a separation date can be the opening your own bank account, obtaining your own credit cards or filing income taxes separated. If you moved out of the matrimonial home, the date of a lease on a new residence can help establish the date as well.
Each case varies and there is no hard-and-fast rule. Our objective always is to avoid court – partly because of the time and cost, and partly because no one really “wins” in a trial because it is hard on you and your children. So, we look for every possible way to reach an agreement without a trial: Sometimes this means to keep trying to negotiate contentious points, sometimes it means trying solutions such as mediation and arbitration, sometimes it means helping you determine what are the most-important things you want at the end of the process.
If you or your children are under threat from physical violence or severe emotional abuse, we will move quickly to seek a restraining order from the court. A restraining order is brought by one spouse to limit the ability of the other to have contact with them. A court may grant one in a situation where a spouse or the children have been attacked or threatened. If the order is violated, then you can ask the police to intervene and they may arrest the spouse who went against the court order.
Grandparents have no statutory rights to visit their grandchildren. But there is no way to prevent your spouse from allowing contact between a child and the grandparents or other relatives unless the grandparent is a danger to the child. For the sake of helping your children make a smooth adjustment to their changing life, most of the time we suggest that grandparent visits with the kids will be best for their well-being.
If the inheritance was mixed as a family asset, it will be included in the equalization payment. So, for instance, if you used the inheritance to pay down your mortgage, then the money became part of the matrimonial home and chances are you will not get it back. If it went to you specifically and has been kept separate from the family’s funds and assets, it can probably remain with you if careful records have been kept. You need to be able to prove that the money was given to you and also that it was kept in a separate account while you were married.
You can take out your half, but it is not advisable to take all the money in a joint bank account. As a general rule, taking all the money from a joint bank account means you may be required to return the portion that isn’t yours later. The amount you take will be included in the total marital assets that are divided and calculated into the equalization payment as part of a separation agreement or what a judge orders at the end of a trial.
We will always notify you. Your divorce is final 31 days after a judge grants the divorce order.
A judge may decide not to grant the divorce if arrangements have not been made for the care and support of the children.
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