The ups and downs of married life can put a strain on a relationship. Couples needing time away from each other to work out their differences might decide to live separate and apart. There are few legal formalities to a separation other than the agreement of the parties to not live together. Separation is not the answer for everyone. In fact, 40 percent of Canadian couples in long-term marriages choose to end them through divorce. Ending a marriage through the divorce process requires court approval, so it helps to have some knowledge of the process before you begin.
You Must Have Grounds for Divorce
Either or both parties to a marriage may file for divorce to end it. Courts may only grant a divorce when the application proves there has been a breakdown of the marriage. A breakdown of the marriage occurs when you can prove one or more of the following:
- Your spouse committed adultery. Forgiving your spouse by continuing to reside together as a married couple after you learn of the adultery removes it as proof of the breakdown of the marriage.
- You and your spouse have separated and lived apart for at least one year. It does not matter whether you or your spouse made the decision to move out.
- You have been the victim of physical violence, mental anguish or other acts of cruelty making it unsafe or unbearable to continue residing together.
It might seem obvious, but you must be legally married in order to file for a divorce. Common-law relationships in Ontario do not have the same legal status as marriages when it comes to a divorce.
Filing an Application for Divorce
There are two forms of application for a divorce in Ontario. The general application is used when you and your spouse are unable to come to an agreement on one or more of the following matters related to your family:
- Property division
- Child custody and access
- Child support
- Spousal support
- Disposition of the matrimonial home
If you cannot agree on resolution of these or other family issues, the general application requests the assistance of the court in resolving them.
Form 8A is an application for a divorce and is used when the parties have settled all of the family issues through a written agreement before filing with the court for a divorce. You may file the form on your own, or you may file it jointly with your spouse. Joint applications for divorce indicate that both parties agree to the termination of the marriage, so it might move more quickly through the court.
Unless you file a joint application, your spouse has 30 days to file an answer responding to the contents of the application. Both parties must complete and file financial disclosure statements with the court.
How Divorce Cases Move Through the Court
After your divorce application has been filed and an answer submitted by your spouse, a case conference is scheduled. The purpose of the conference is to meet with a judge to discuss settlement of unresolved issues with additional conferences scheduled as needed.
If settlement conferences do not result in resolution of all issues, the case will be scheduled for a trial. You and your spouse have the opportunity at the trial to present evidence in support of your respective positions regarding the divorce and other unresolved issues. Once all evidence has been offered, the judge presiding over the case renders a decision on your application for a divorce.
The Importance of Having Legal Representation
The termination of a marriage and related family law issues, such as child custody, support and property division, are important matters that you should not attempt to resolve without the assistance of a lawyer experienced in handling family law matters. A lawyer can expedite the divorce process by negotiating with the lawyer representing your spouse to resolve family issues through agreement instead of through lengthy court proceedings.