You’ve Decided You Want a Divorce… What Do You First?

Getting a divorce is one of the most difficult experiences a person can go through. Divorce is not only emotionally stressful. It can also have long-lasting financial consequences, and effects on any children. Although divorce is always difficult, there are steps to keep the process from being more stressful than necessary.

Can I Divorce?

Canada has no-fault divorce. That means exactly what it sounds like: you do not have to prove that your spouse did something wrong in order to ask for a divorce. In fact, you and your spouse can even make a joint divorce application.

The only legal reason you need in order to get a divorce in Canada is breakdown of the marriage. You can show marriage breakdown in the following ways:

• If you and your spouse have lived apart for a year or more
• If your spouse has been physically or mentally cruel to you
• If your spouse has committed adultery

The first requirement may be fulfilled even if you and your spouse have continued to live under the same roof. The court looks at the applicable factors to determine if you and your spouse have ceased to live in a “marriage-like” fashion.

With the second two requirements, it is possible to obtain a divorce before the separation period of a year. However, in that case there must be proof of mental or physical cruelty or adultery.

Important Issues

Important family law issues to consider when getting a divorce include:

• Division of property
• Child support
• Spousal support
• Child custody and access

The federal Divorce Act sets out rules for child support, spousal support and custody and parenting arrangements. Property division, however, falls under provincial or territorial law.

Child support is paid by the other parent to the child’s primary caregiver. The Federal Child Support Guidelines are used to determine child support amounts. The amount is based on the paying parent’s income, the number of children and the province or territory that the paying parent lives in. Amounts vary by province and territory due to differences in income tax rates.

The Spousal Support Advisory Guidelines are often used by judges and family lawyers to make decisions about spousal support. Unlike the Child Support Guidelines, however, they are not law.

If you have children, the court will not grant a divorce until you have made child support arrangements.

Divorce Process

To start a divorce application in Canada, you must fill out the correct forms for your province or territory and file them in a court. A lawyer can do this work for you as well. You can get these forms from places like your Ministry of Justice or Attorney General’s website or office, a court or even a bookstore. There may be a fee associated with your application.

Family law is complex, and the family law issues associated with divorce will have a profound impact on the rest of your life. In order to make sure that your rights are protected and your obligations met, it is always a good idea to obtain legal advice when getting a divorce.

Contested and Uncontested

An uncontested divorce is the ideal situation. In most Canadian provinces, if your divorce is uncontested you and your spouse can get a “desk divorce,” meaning you do not have to go to court. Instead, you and your spouse can come to decisions together about the important issues that you must address. The parties to the divorce can create a legally-binding separation agreement rather than leaving these issues for a court to decide.

However, if there is any issue that you and your spouse cannot agree on, the divorce becomes contested. If your divorce is contested and you wish to avoid going to court, or if you need help in coming to agreement on all issues with your spouse in the first place, you may want to use Alternative Dispute Resolution.

A Toronto Divorce Lawyer can help you understand the law, protect your rights and keep the stress of divorce to a minimum.