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Separation. Divorce. Child Custody and Access. Child Support. Spousal Support. Division of Property and Assets.

The best time to ask your partner the hard questions is before you get married. Choosing to get married is a major life decision with significant psychological, social, and legal effects. Your choice in spouse deserves at least as much time and research as you would put into any other life-changing decision, such as going back to school, having children, quitting your job or accepting a new offer of employment. Do your homework and find out if your concept of marriage is compatible with your partner’s. Here are some important questions you should ask yourself and your spouse before you get married. more

Typically, a marriage is considered “short-term” if it less than five years in duration. There are three financial aspects of divorce that parties to a short-term marriage should consider:

  • division of family property (equalization),
  • spousal support, and
  • child support.

While there may be some overlap in these schemes, they must be analyzed separately. Parties to a short-term marriage may be responsible for or entitled to some, all, or none of these payments. more

Whaaaat? I Can’t Afford That Equalization Payment!

When a marriage ends, the spouse who has the higher “net family property” must make an equalization payment to the spouse with the lower net family property. The equalization payment usually represents a significant amount of the family’s accumulated wealth, so making the equalization payment can be daunting. Often the paying spouse does not have enough liquid assets to make this payment easily. Below are some options available to a spouse who must satisfy an equalization payment. more

A prenuptial agreement is a contract entered into by a couple who is planning to marry. In Ontario, a prenuptial agreement is called a marriage contract. To be valid and enforceable, the contract must meet certain conditions laid out in Part IV of the Family Law Act. For example, it must be in writing, signed by the parties, and witnessed. A marriage contract typically determines the parties’ rights regarding property and spousal support in the event the marriage ends in divorce. A marriage contract permits a couple to negotiate their own terms regarding property sharing and financial planning so that the marriage and divorce laws in their province do not automatically apply to them. more

When spouses decide to end their marriage or relationship, they have the option to either separate or divorce. While these terms are often used interchangeably, each has very different legal meanings and consequences.

Divorce

Divorce is only available for legally married spouses who wish to end their relationship and/or remarry. It is the process through which they terminate their legal marriage by an application to the court. Married couples are not divorced until a court grants one. Courts will only do so if the marriage has broken down due to separation, adultery, or cruelty. Generally, unless adultery or cruelty is at issue, divorce via separation requires at least a year long wait before an application can be made. Additionally, if there are children involved, the court can stall the divorce process until it is satisfied that proper arrangements have been made for the children’s care, custody, and support. more

There are many reasons why a parent may want to move after a separation or divorce. One parent may have more family support in another province, there may be work or educational opportunities that are not available where he or she currently resides, or the parent may be in a new relationship and his or her partner resides elsewhere. The issue of mobility can be complicated and extremely stressful for separated spouses who must balance the responsibility of co-parenting along with moving forward independently. There is no easy answer to the question of whether you or your former spouse will be permitted to move your children out of the province. It will depend on the facts of your case. more

A prenuptial agreement is an agreement made by a couple before they marry. Usually, these contracts concern ownership of assets and financial planning in the event of relationship breakdown. In Canada, prenuptial agreements are called “marriage contracts” or “cohabitation agreements,” depending on whether the couple plans to marry or live together (without marrying). These domestic contracts are especially popular in second marriages, blended families, and where one or both of the parties have significant assets. more

You must give your spouse notice of your divorce so that he or she has a chance to respond to and/or contest the divorce application. You give notice by serving your spouse with the Application for Divorce and accompanying documentation.

The Application must be served by “special service” in accordance with the criteria described in Rule 6(3) of Ontario’s Family Law Rules. Generally, special service of a document must be carried out by a third party. He or she can serve the document by:

  • leaving a copy,
    • with the person to be served,
    • if the person is or appears to be mentally incapable in respect of an issue in the case, with the person and with the guardian of the person’s property or, if none, with the Public Guardian and Trustee,
  • leaving a copy with the person’s lawyer of record in the case, or with a lawyer who accepts service in writing on a copy of the document;
  • mailing a copy to the person, together with an acknowledgment of service in the form of a prepaid return postcard (Form 6), all in an envelope that is addressed to the person and has the sender’s return address (but service under this clause is not valid unless the return postcard, signed by the person, is filed in the continuing record); or
  • leaving a copy at the person’s place of residence, in an envelope addressed to the person, with anyone who appears to be an adult person resident at the same address and, on the same day or on the next, mailing another copy to the person at that address.

Service is important because a case cannot be decided fairly unless both parties have an opportunity to present their side of the story. However, if you cannot locate your spouse and therefore cannot fulfill the notice requirement using any special service methods outlined in rule 6(3), a court may permit you to serve your application using “substituted service.” Substituted service may include any of the following methods:

  • Leaving a copy of the divorce application with a spouse’s family member who is believed to be in contact with your spouse;
  • Leaving a copy at your spouse’s workplace;
  • Sending a copy by fax, e-mail, or via social media; or
  • Posting a notice of the divorce application in a newspaper that is published where your spouse is believed to reside.

You must request a court order that permits you to use substituted service. A court may grant this order if you provide the court with detailed evidence showing what steps you have taken to locate your spouse. For example, provide a list of every person whom you have contacted in the hopes of tracking down your spouse and do searches on the internet and on social media. Print out your results. If you did locate your spouse but were unable to serve him or her, you must show evidence of the steps you have taken to attempt to serve him or her. Finally, you must also show that your proposed method of substituted service (i.e. email, leaving a copy with a family member) could reasonably be expected to bring the application to your spouse’s attention.

The court must be satisfied that you have done your best to locate your spouse before it grants a request for substituted service. If the court grants your order, you may complete the substituted service and then proceed to file your divorce application. If your spouse does not respond to the divorce application within 30 or 60 days (30 days for residents of Canada/US and 60 days for parties who reside outside of Canada/US), then your divorce may proceed “uncontested.”

In summary, you may still be granted a divorce even if you cannot locate your spouse. However, you must make every reasonable effort to try to locate him or her and serve him with the court documents. This may require an additional court application for an order for substituted serve, pursuant to rule 6(15) of the Family Law Rules.

Yes, you can represent yourself during your divorce proceeding. There is no legal requirement or obligation to have a lawyer with you at any stage of your divorce.

There is a lot of information available online and at various courthouses to help you with your legal proceedings. Make sure you rely on information that is relevant to your specific jurisdiction and up-to-date, since family law rules vary from province to province and are subject to change. For example, unmarried cohabiting spouses in Ontario are not entitled to some remedies that are available only to married spouses, such as equalization of family property. This is in contrast to British Columbia where, since 2013, couples who have lived together in a “marriage-like relationship for a continuous period of at least two years” share the same legal rights as married couples.

It is highly recommended that you retain a lawyer for your divorce, especially if you have outstanding issues regarding child custody/access or child support. At a minimum, have a consultation with a qualified family law lawyer in your province. Even if the consultation is brief, the lawyer will be able to point out some important legislative provisions and rules that are particularly relevant to your case and your facts. A lawyer can also help you identify what steps you should be taking in order to protect yourself and your legal position.

Links to helpful Ontario family law resources

As parents look forward to bonding time with their children unburdened by the stress and time constraints of work and school, holiday access can be a highly contentious issue. Knowing your rights and restrictions regarding holiday periods can help you find a fair arrangement that works for you, the other parent, and most importantly, your children. In all circumstances, holiday access decisions should be made in consideration of the children’s best interests. more