If the relationship with your spouse has deteriorated to the stage of talk about separation or divorce, you might be wondering about how the process works and the formalities required by the laws in Canada and Ontario. Is a lawyer necessary? What paperwork is required, and can you prepare some of the paperwork on your own? Divorce and separation are quite different, so here is an overview to help you understand the process and procedures for each.
Distinction between separation and divorce
The primary difference between separation and divorce has to do with the effect on your marriage. Separation means that you and your spouse no longer live together as a couple, but it does not end the marriage. Ending a marriage requires a court order obtained through a divorce.
Separation does not involve a formal process, so the paperwork is minimal. It is recommended that you and your spouse discuss and reach agreement about the following matters related to your marriage:
- Child custody and visitation
- Spousal and child support
- Division of property
- Occupancy of what was the family home
- Payment of debts
The settlement that you reach should be reduced to writing in a separation agreement that a lawyer could prepare for you. If you and your spouse cannot resolve these and other family issues, you will have to go to court to them decided by a judge.
Termination of your marriage through divorce is a formal court proceeding, so there is more paperwork required than for a separation. The circumstances of your divorce, such as whether or not your spouse will contest it, determines the amount of paperwork and your ability to prepare it without a lawyer.
The divorce process
If you live in Ontario, you begin the divorce process by filing an application and supporting documents at either the Superior Court of Justice or the Family Court of the Superior Court of Justice. The application may be completed and filed online jointly if you and your spouse have lived separate and apart for at least one year and are in agreement on child custody, property division and other issues related to the marriage.
You can use the online application process without the cooperation of your spouse when the only issue for a court to decide is the granting of the divorce. If custody, support and other issues exist and have not been resolved, you cannot use the online application procedure.
A joint application for divorce must be accompanied by the following documents:
- Divorce orders
- A copy of your marriage certificate
- Child and spousal support forms
- Affidavits for divorce from both parties
- Forms related to custody and access to children
- Financial statements
You must also submit to the court a copy of your separation agreement.
If you are applying for a simple divorce and asking the court to grant only a divorce, you must complete an application. You should submit any prior court orders, such as support orders, along with the application.
It helps to speak with a lawyer
It helps to get legal advice and guidance from a lawyer experienced in family law matters in Ontario, including divorce and separation, before attempting to file papers with the court on your own. A lawyer will discuss the various issues related to your separation or divorce and provide you with options for resolving them while ensuring that your rights are protected.