My spouse wants a divorce, but I do not. How can I stop this process?
You may attempt to reconcile with your spouse if he or she is agreeable. The law dictates that one spouse may move towards dissolution without the consent of the other if one or more of the following claims can be established:
- Separation for one or more years
- Cruelty which has made ongoing cohabitation intolerable
My spouse and I have just separated. Must we wait one year before applying for divorce?
Cases in which separation is the ground for divorce must adhere to the one-year timeline. Cases in which the grounds for divorce is something other than separation, such as adultery, may enter into divorce proceedings at any time after one or both spouses have decided to separate.
Is a separation agreement needed to file for divorce?
It is not necessary to have a separation agreement. However, the application process may be expedited if the issues surrounding your case have been finalized in a separation agreement prior to applying for divorce.
My divorce has not been finalized and I am in a relationship with someone else. Am I legally able to get engaged, and would this affect the outcome of my divorce?
There is no law stating that you must wait until the finalization of divorce to become engaged with another person. Engagement is a verbal promise requiring no license, nor does being engaged generate the rights and responsibilities that come with marriage.
Before remarrying, you must get a new marriage license. In order to apply for a marriage license, you must get a Certificate of Divorce, which you may apply for after receiving your Divorce Judgment. Neither of these documents are necessary before becoming engaged.
Canada has a no-fault stance on divorce, so a new engagement should not affect your current divorce proceedings, or the outcome. The legal basis for divorce is the establishment of claims of adultery, separation of a year or more, or some form of cruelty that makes cohabitation intolerable.
This does not mean that an engagement before your divorce is finalized could not have consequences. If your ex-spouse feels spiteful, he or she may tamper with the process, prolonging resolution in one area or another, such as the division of property, spousal or child support, child custody, or visitation. An ongoing divorce can greatly hamper the enjoyment that should be a part of engagement and wedding planning. For peace of mind, you may wish to keep your engagement to yourself until you have received your Divorce Judgment.
Child Custody And Support
Because I ended my relationship and left with the kids, my ex is refusing to provide any financial support. What can I do?
Regardless of the circumstances of a divorce, children are entitled to the financial support of the parent they do not live with.
If your ex is unwilling to provide this support, a family lawyer may be of service. With the help of a family lawyer, you can obtain a court order requiring the payment of child support.
Additionally, a family lawyer can provide information on other orders that may be instituted for the protection of your children’s interests, as well as your own.
How much child support am I entitled to if I separate from my spouse?
In Ontario, the Federal Child Support Guidelines determine the amount of child support in a given case. The guidelines give consideration to the number of children entitled to support, as well as the payor’s annual income.
In addition to the base amount dictated by the guidelines, a contribution to special or extraordinary expenses specified for the children may also be awarded. Special or extraordinary expenses, to which both parties contribute, are not based on the Federal Guidelines, but with each parent’s income in mind, as well as the necessity of the given expense or expenses.
My ex wants to pay less support than what is detailed in our final court order. Is this allowed?
Changes to the final court order may be made at any time. However, the requestor must demonstrate a change in circumstances validating the requested change. This material change must be sufficiently significant to prove the original orders are no longer appropriate, such as a reduction in the payor’s annual income. This reduction would be assessed based on the Federal Child Support Guidelines, and child support reduced accordingly.
My ex works for cash and says he/she is unemployed. How can I ensure child support is paid appropriately?
It is quite difficult to prove details of income when someone works for cash and does not provide adequate earnings statements to the CRA. In instances where one person is intentionally unemployed or under-employed, it is possible that the court may order child support based on what it deems an appropriate amount. This is not always the case, but may be possible if specific legal arguments are adequately made.
Access to Children
My ex is not allowing visitation with our kids. What can I do?
Visitation with each parent is an automatic entitlement granted to children, provided that they are not at risk of harm. Ideally, issues surrounding visitation can be discussed between you and your ex, without the court’s intervention. This scenario would save time, money, and frustration.
If your ex refuses to discuss visitation, or your discussion is not productive, then a family lawyer can be consulted to assess the circumstances surrounding your case, and help you obtain any necessary orders from the court pertaining to visitation.
Additionally, your family lawyer can provide information on other orders that may affect visitation or your children’s interests, as well as your own.
Travel With Children Outside Canada
I have legal, sole custody of my children. Does this allow me to obtain passports and travel outside of Canada without the written permission of my ex?
No. Having custody of your children is an entirely different legal issue from applying for passports and traveling outside the country.
In response to increased custody disputes and instances of child abduction, passport and border authorities have become far stricter in regards to travel with children. There is a possibility that a particular border official may allow you to travel outside of the country with your children when presented with a sole custody order. However, there is no guarantee.
Challenges with travel plans can be avoided by having clear wording in your court order stating which parent is authorized to retain children’s passports, and whether the consent of either parent is required for international travel.
At Bennett Law Chambers, we are committed to helping our clients protect their interests, and can see you through your legal matter.
Contact Bennett Law Chambers at (905) 890-0474 for your consultation