"We’ve just separated. Do we have to wait one year before we can apply for a divorce?"
No. The divorce process can be started once the decision to separate has been made by one spouse. However, if the divorce application is proceeding on the ground that the spouses are separated, the divorce cannot be granted until at least one year after the separation date.
"Do I have to have a separation agreement before I get divorced?"
No. It is not required. However, it can make the divorce application process faster if all the issues resulting from the breakdown of your marriage have been finalized in a separation agreement before you apply for a divorce.
“I’m in the middle of a divorce but have already fallen in love with somebody else. Is it legal to get engaged before the divorce is final? If so, will it affect the divorce outcome?”
Yes, it is perfectly legal to get engaged before your divorce is final. A marriage engagement is an oral promise to marry someone. A marriage engagement does not require a licence, nor does it generate the same rights and responsibilities that a marriage does.
Legally, you must be divorced before you can remarry. You may apply for a Certificate of Divorce after you receive your Divorce Judgment. The Certificate of Divorce is the legal document which entitles you to apply for a new marriage licence. You do not need a Divorce Judgment or a Certificate of Divorce before you become engaged.
From a strict legal standpoint, being engaged during your divorce process should not affect your divorce outcome. In Canada, divorce is no fault. Thus in order to establish a legal basis for divorcing you would need to establish that any one of the following occurred in your marriage:
you lived separate and apart from your spouse for at least one year, or
you were subjected to physical or mental cruelty of such a kind as to make continued cohabitation with your spouse intolerable.
However, depending on the temperament of your ex-spouse, being engaged may adversely affect your divorce process. Your upcoming wedding date may tempt your ex-spouse to prolong resolving some of the other issues (child custody, child support, access, spousal support, division of family property) in your divorce process out of spite.
The excitement of an engagement and wedding plans can be severely hampered by the divorce that just doesn’t seem to end. For your own peace of mind do not announce your engagement, or send out wedding invitations, or book the reception venue if your Divorce Judgment has not been received.
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"My ex refuses to give me any money for our kids because I’m the one that ended our relationship and then left with the kids. What can I do?"
Your children are entitled to receive financial support from the parent whom they do not primarily reside with irrespective of the circumstances surrounding the breakdown of your relationship.
If your ex refuses to willingly provide financial support for your children, then you may need to meet with a family lawyer. The family lawyer should be able to assess the circumstances of your case, and help you to obtain an order from the court which requires your ex to pay child support.
In addition, the family lawyer should be able to advise you of other orders that you may want to apply for in order to protect your children’s interests and your interests.
"How much child support will I get from my ex if we separate?"
In Ontario, the amount of child support that a person pays or receives is determined by the Federal Child Support Guidelines. The Guidelines provide a monthly amount of support payable and receivable based on the support payor’s annual income, and the number of children which he/she is required to support.
In addition to the Guideline amount of child support, a support recipient may also receive a contribution to the special or extraordinary expenses incurred for the children. What constitutes a special or extraordinary expense and the amount each party should contribute is not determined based on the Federal Guidelines. The amounts are determined in consideration of both parents’ incomes, and the necessity and reasonableness of the expense.
"We have a final court order for child support. Now my ex wants to pay less. Is this allowed?"
A final order for child support can be changed if the person seeking to make the change can demonstrate to the court that there has been a material change in circumstances since the final order was made. The material change has to be significant enough that the terms of the final order are no longer appropriate. An obvious example is a reduction in the support payor’s annual income if the reduced income would result in a different level of child support detailed in the Federal Child Support Guidelines.
"My ex says he/she is unemployed, but I know he/she is working for cash. How can I get child support?"
When someone works for cash, and does not report their entire earnings to the CRA, it is very difficult to prove the exact level of their income. If your ex is intentionally under-employed or unemployed, in some circumstances the courts may make a child support order based on an income amount that the court considers appropriate. This is not an automatic result, but may be the result if specific legal arguments are successfully made.
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Access to Children
"My ex won’t let our kids visit me. What can I do?"
Your children are automatically entitled to have regular visits with you provided that the visits do not harm the children, or put them at risk of harm.
Try to discuss with your ex why your visits are being refused. If you both can address any visitation concerns without the intervention of the court, it will save you time, frustration, and money.
If your discussions are not fruitful, then you may need to meet with a family lawyer. The family lawyer should be able to assess the circumstances of your case, and help you to obtain an order from the court which establishes a schedule of regular visits.
In addition, the family lawyer should be able to advise you of other orders which affect your visits that you may want to apply for in order to protect your children’s interests and your interests.
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Children’s Passports/Travel with children
"My court order gives me sole custody of my kids. Does that automatically mean I don’t need my ex’s written permission to get passports for our children, or to travel outside of Canada with them?"
No. Having custody of your children, and obtaining passports and traveling outside of the country with your children are entirely different legal issues.
With the increase of custody disputes and child abduction cases, passport and border authorities are getting more stringent each day. It is possible that a particular border official may not prevent you from traveling outside of Canada with your children based on your sole custody order. However, this is not always the case.
To avoid the possibility of having your travel plans compromised, your court order should clearly address who has the authority to obtain and retain passports for your children; and, whether consent is required for travel outside of Canada with your children.
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