Frequently Asked Divorce Questions
1. What is the difference between separation and divorce?
  Separation happens when one or both spouses (common law or married) have decided to live apart permanently (with the intention of not living together again). Divorce happens when a judge signs an order to legally end a marriage under the Divorce Act.
2. What are the reasons for a divorce?
 

A divorce can be ordered for matrimonial relationships if one of the following events occur:
-The spouses have lived separate and apart for at least one year; or
-The spouse has committed adultery; or
-There was intolerable physical or mental cruelty.

Divorces in Canada are usually granted  on the basis of a separation of at least one year.
3. Does divorce apply to common law relationships?
  A divorce only applies to married couples who want to legally end their marriage. Although common law relationships don’t require a divorce certificate to end the relationship, it is still highly recommended that both common law spouses negotiate a formal separation agreement that outlines the arrangement details such as child/spousal support, custody/access, property/asset division etc. This will ensure both spouses are legally protected in the short-term and long-term.
4. Who can apply for a divorce in Ontario?
  Either spouse can apply for a divorce in Ontario after living in the province of Ontario for at least one year prior to the divorce application date. Having Canadian citizenship is not mandatory for divorces in Canada.
5. What is the difference between contested and uncontested divorces?
  Contested means one of the spouses has served and filed court materials to dispute the divorce. The spouses would need to provide evidence to support or contest the claims made. Uncontested means that the respondent spouse has not served or filed court materials to dispute the divorce. The court would then make an order based on the applicant spouse’s claims.
6. What happens when the other spouse refuses to agree to a divorce?
 

If the divorce is contested and not settled, the court will determine whether the divorce will be granted based on court materials, submissions and testimony.
7. What happens when the other spouse cannot be located?
  The applicant spouse can seek an order for substituted service or an order that service is not required (of court documents). The applicant spouse will have to explain what attempts he/she made to locate the other spouse and why service requirements should be different for his or her particular case.
8. Can both spouses share the same lawyer during a divorce?
 

In order to avoid a conflict of interest, each spouse should retain their own family lawyer to obtain independent legal advice. This will ensure both spouses fully understand their rights and obligations.
9. How much does a divorce cost?

There are basically two types of divorce fees: fixed and variable. The fixed fees are the standard fees that apply to all divorce proceedings, which mainly include court filing fees of approx $450 (+ plus process serving fees). The variable fees are the lawyer fees; which can range anywhere from $200 to $600 per hour depending on experience and location. The total costs of a divorce will ultimately depend on the simplicity or complexity of the divorce proceeding.
10. How much time does it take to get a divorce?
  The divorce certificate usually takes approximately 60-90 days for simple (uncontested) divorce claims and can take several years for contested (more complex) divorce claims.
11 How is spousal support determined?
 

There are a number of  factors the court will consider  in determining whether spouse is entitled to support and the amount of spousal support. These include:

 • The needs of the dependent spouse based on the lifestyle enjoyed during the relationship

• The ability of the payor to pay support

• The length of the marriage which will include the time lived together prior to marriage

• The age and physical and mental health of both spouse

• The dependent’s capacity to contribute to their own support

• The standard of living enjoyed during the marriage

• The career sacrifices of the dependent spouse for the career advancement of the other spouse.

12 Am I entitled to Spousal Support? 
 

When the partnership breaks down, the person with more income or assets may have to pay support to the other. At the same time, the law expects adults to look after their own needs to the best of their abilities. To decide on how much spousal support and the length of time that it should be paid, the law says that judges must consider a number of factors, including how much the person asking for support needs to meet his or her needs, and how much the other person can afford to pay. A person may claim support to help him or her become financially self-sufficient or to keep from ending up in serious financial difficulty.

13 How much do I pay in Child Support? 
 

Both parents have a responsibility to financially support their children. If you do not have custody, the amount of child support you must pay is based on your income and the number of children and on the Child support guidelines.
14

I am considering separation or divorce, how will our assets or property be divided?
 

When a marriage ends, the equal contribution of each person to the marriage is recognized. The law provides that the value of any kind of property that was acquired by a spouse during the marriage and still exists at separation must be divided equally between the spouses. Also, any increase in the value of property owned by a spouse at the date of marriage must be shared. The payment that may be owed to one of the spouses in order to effect this sharing is called an equalization payment, or an equalization of net family property.

There are some possible exceptions to these rules, which are called excluded property, and may include gifts or inheritances received during the marriage from someone other than a spouse, provided that the gifts or inheritances were not used towards a matrimonial home.

These automatic property sharing provisions only apply to married spouses. If you are in a common law relationship, you are not entitled to an equalization payment, but may be entitled to a payment from your spouse to pay you back for a direct or indirect contribution to property that he or she owns.