Starting the Process of Ending Your Marriage

If you are the one who wants a divorce, you may feel calm, in control, and sure of your decision. Going through a divorce is different from what you experienced breaking up with past romantic partners. A divorce formally ends your marriage. It can be a complicated, lengthy and a harrowing procedure. There will be some emotional pain, potential doubts about your choices, and the challenge of coping with the other person’s emotions, fears and desires. This may seem overwhelming, but it’s only the tip of the iceberg because you haven’t even begun to work out who will get the house, the car, and the kids.

If you are thinking of divorce, the best thing you can do is plan and prepare. You should know exactly what the process for ending a marriage in Ontario involves. Here is a guide to begin planning your next steps.

1. Know the Basics of Getting a Divorce 

Knowing some basic facts about the divorce process is a good place to get started. Here are some basics:

• One or both spouses can apply for the divorce
• You don’t need a ‘reason’ to apply for divorce; marriage breakdown is enough
• You are not legally required to get a lawyer, though it’s highly recommended
• You don’t have to be a Canadian citizen to obtain a divorce; you just have to be living in Ontario for more than 1 year.
• There is no time limit for applying for a divorce, nor for support payments and child custody. But if you wait a long time, the courts may decide you don’t need the support and may be reluctant to move the children.
• The time limit for division of property is 2 years after the date of your divorce or six years after your separation date, whichever comes first

2. Separation Agreements

There are different ways to reach an agreement on the details of the breakup, including division of property, support payments, and child custody. The best way to do this is to write a separation agreement outlining your decisions. Once signed and witnessed, it’s a contract that both of you are legally bound to honour for the rest of your lives or until a new agreement is negotiated. If you don’t know how to word the agreement, or can’t agree on its contents, you can use a lawyer, a mediator, or an arbitrator to help you negotiate the terms. As a last resort, if you cannot agree, you can ask the court to decide.

FAQ: How does mediation work? Family mediators are trained, neutral professionals who listen to both parties and help you reach an agreement on the issues. Though they are available in connection with Ontario family courts, they don’t give legal advice or take sides. The cost is generally quite reasonable. If mediation fails, you can move on to an arbitrator, who does have the power to make binding decisions for you, or even the courts.

3. Seek Legal Advice

Before you sign a mediation agreement, you should consult with an experienced family lawyer. Though you have already agreed to the terms, the wording may leave you open to problems later.

If you can prove that your income is low, or you have been a victim of violence, you might qualify for legal aid to help defray some or all of your legal costs. You can call Legal Aid Ontario toll-free at 1-800-668-8258 to inquire. All the conversations you have with any lawyer about the divorce process for ending marriage are confidential.

If you go to court, both you and your spouse will have to attend a Mandatory Information Program where you will learn more about the divorce process. You’ll have the opportunity to meet with your lawyers in front of a judge who may advise you on the likely outcome of a court case.

4. Get the Divorce

A separation agreement will resolve your family issues post-divorce, but in order to legally end your marriage, you must get a divorce through the courts by proving your marriage is over. There are three ways to prove this:

• Being separated for 1 year
• Evidence of spousal infidelity
• Evidence of physical/mental cruelty

FAQ: What paperwork do I need to file the divorce? It is a good idea to speak to a lawyer first, even if you are both already living by the separation agreement, because there are future implications of the divorce process for ending marriage such as taxes, pension and other issues.

5. Provide for Your Children

This may be the most difficult aspect for separating couples – keeping their children safe, supported and happy even without living together. The best thing to do is write out your agreed-upon child care arrangements, including how much time each parent will spend with the children. If you can’t agree, a judge can decide for you.

FAQ: What’s the difference between custody and access? Custody determines where the children will live and who will make important decisions about their education, religion and care. Parents with joint custody share the right to make those decisions and must cooperate and communicate about them. Access refers to how often parents can see their children. Access may be arranged, open, or even supervised if there are concerns for the children’s safety. Custody and access orders are enforceable by law.

6. Child Support

Both parents are financially responsible for supporting their children, no matter who has custody or how much access is granted. The parent without custody usually pays child support according to the Federal Child Support Guidelines, but sometimes the courts can award a higher or lower amount of support. Confirmation of income is usually required yearly.

FAQ: I am making more money now than I was before. Do I automatically have to pay more? No. You have to agree on a new amount with your ex; if you can’t agree, you will have to go to court.

7. Property Division

Property such as jewelry, electronics, homes, cars, furniture, and businesses have to be divided. The general rule is that the value of any property acquired during the marriage, including the family home, must be divided equally, with special exceptions for things like inheritances and insurance money; anything you brought with you into the marriage is yours to keep. Because property division and debt calculations are complicated, you should consult a divorce lawyer.

FAQ: We’ve been living common law for 10 years. Do we have to share our property equally? Not necessarily; you may have a claim, but not an automatic legal right to some of the property. It’s best to ask a lawyer for advice.