Your divorce is granted either after you and your spouse agree on all of the issues and an Application is filed with the court, or following a trial, or prior if permitted by a Court order.
If you and your spouse can negotiate a settlement, the lawyers will draft a document called Minutes of Settlement. If you and your spouse are negotiating outside the court process, your lawyers will draft a document called a Separation Agreement. The main difference between Minutes of Settlement and a Separation Agreement is that Minutes of Settlement can usually be made into a court order more easily.
These documents set out the rights and responsibilities that you and your spouse will follow. Once the agreement has been approved by you, your spouse and your lawyers, each spouse signs the document.
The lawyers then send the signed Separation Agreement to the court and have portions of it turned into a Court Order. If the parties do not choose to turn their separation agreement into a court order, they may have to initiate a legal action later if there is a breach of the Separation Agreement.
Before signing a Separation Agreement, it is important to ensure that both spouses make a complete and accurate financial disclosure.
We will explain the agreement to you because you may be taking on significant responsibilities or waiving important rights. If you have agreed to take on these responsibilities or are waiving rights, it will be very difficult to alter the Separation Agreement once it has been signed.
After the Separation Agreement is signed, if support of any kind is an issue in the matter, you should ensure to continue to provide your soon-to-be ex-spouse with updated financial information each year. Although doing so is only required if it is provided for in the agreement or where support is involved, recent court decisions highlight the importance of exchanging these documents regularly. If either spouse fails to do this when required, they risk having costs awarded against them and paying retroactive support.
Any decision made by a court and parts of an executed Separation Agreement can be turned into a court order, if agreed to.
This means that it can likely be enforced in the event of a breach. If the order deals with a monetary award beyond child or spousal support, it can be enforced by garnishing the paying spouse’s income or bank accounts, or by placing a lien against their property. If the order deals with non-monetary issues and your ex-spouse commits a breach, you can bring a motion to find them in contempt. Once a party is found in contempt, they face a variety of sanctions including the possibility of spending time in jail.
If the order deals with child or spousal support, this portion is enforced through Ontario’s Family Responsibility Office (FRO). The FRO has the ability to garnish wages and bank accounts, but it also has more far-reaching powers ranging from suspending someone’s driver’s license and passport to putting them in jail.
Although the FRO is a valuable tool to enforce support payment, it can take months before the FRO begins the enforcement process.
The Final Divorce Order
The divorce order finalizes your divorce. This means that thirty-one (31) days after a Divorce Order is made, you are now considered legally divorced. A Divorce Order is a legal document and should be kept in a safe place. Once thirty-one (31) days has passed, you are legally allowed to obtain a Certificate of Divorce from the Court Office. For one thing, if you ever decide to remarry, you will need the Divorce Order and the Certificate of Divorce, when you apply for a new marriage license.