Family Law FAQs

The timeline for obtaining a divorce in Ontario varies case by case due to factors like complexity and party relations. Litigation is unpredictable, but Alternative Dispute Resolution, like Mediation, offers more control. However, both parties must cooperate for any process. For a faster divorce, cooperating with the other party and securing an uncontested settlement is advised. Note, court-granted divorce requires a year of separation.​

In Ontario, spouses have property division rights known as "deferred community of property," potentially involving child and/or spousal support. For property equalization, ownership of assets is based on title, while spouses share value of marital assets after certain deductions. Net Family Property (NFP) calculates by summing assets and liabilities at marriage and separation; the difference forms each spouse's NFP. The spouse with the higher NFP pays half the disparity, called an equalization payment. Child support is determined by the Federal Child Support Guidelines, primarily the payor's income, with exceptions for shared parenting. Extraordinary child expenses may add to the basic support. Child support usually ends at majority or after first post-secondary degree. Spousal support depends on factors like financial need and ability to pay. Amount and duration vary case by case.​

Joint custody means that both parents will be able to make major decisions regarding the child together, which could be in regards to factors such as education, health and religion. Sole custody means that one parent makes most of or all of the major decisions regarding the child’s welfare and how they will be raised. Shared custody exists in a situation where the child will live with each parent for at least forty percent of the time, this may also affect the way in which child support will be calculated.

Custody refers to the ability to make major decisions for the child, whereas access refers to how much time a child will spend with each parent. A child’s access arrangement may vary greatly depending on the individual circumstances of the matter. In some situations, a child may live primarily with one parent and then visit the other parent on a regular basis, such as every other weekend. In other situations, the child may divide their time equally between the parents’ homes. Usually the non-custody parent will be granted access to the child depending on the circumstances. Custody and access may be decided by the court in some situations and is governed by the Children’s Law Reform Act and the Divorce Act which both require that decisions about child custody and access are to be made based on the best interests of the child.

Family mediators can assist in resolving issues surrounding child custody, access, support and division of property issues. Mediation is a voluntary method of resolving disputes where a trained mediator helps parties of relatively equal bargaining positions to resolve disputes about family issues. In closed mediation all discussions between the parties are confidential and cannot be used as evidence against either party, with few exceptions. In addition, the mediator will not report to the lawyers or the court on the progress of the mediation or provide an opinion on the issues that have been discussed in mediation to anyone but the parties themselves. Open mediation means that the process is not confidential, the agreement to mediate or mediation contract may also authorize the mediator to prepare a report once the mediation is complete. The mediation process is voluntary and parties may leave the process at any time. Mediation is not appropriate for everyone, particularly in cases where there has been violence or abuse. Where one party is afraid of, or intimidated by their spouse, mediation is not a recommended path to solving family issues.

In most cases, in order for a divorce to be granted, both parties must have lived separate and apart for at least one year. Individuals may begin the process before this period has passed, but it cannot be completed until one year has passed. Individuals may be considered to be living separate and apart while continuing to live in the same home, although it may depend on the facts of the case. The court will require clear evidence that spouses are no longer living together in a spousal relationship when they continue to live in the same home.

Only those spouses who are married need to obtain a divorce. Those individuals who have lived together, may, however, have other issues that need to be decided, including custody, access, support and division of jointly owned property. These rights and obligations are not always the same as they are for married spouses, particularly in relation to rights to property. For example, rights to a matrimonial home are only provided to those spouses who are married.

A simple divorce is a request for a divorce only, with no other claims such as custody, access and support. It can be prepared either by one spouse alone or by both spouses as a joint application. A joint application for divorce is a request that is made by both spouses for a divorce order, with or without other terms such as child support payments. With a joint application, both spouses must complete the documents that are necessary in order to obtain the divorce. If an application is prepared by only one spouse, it must be served on the other spouse after it has been issued by the court.

The law views spousal relationships as financial relationships as well. When the partnership breaks down, the person with more income or assets may have to pay support to the other. At the same time, the law expects those individuals to look after their own needs to the best of their abilities. A number of factors going into deciding the amount of spousal support such as how much the person for support needs to meet his or her needs, and how much can the other individual afford to pay. Once the amount of spousal support to be paid has been decided on, spousal support orders from Ontario courts are sent to the Family Responsibility Office (FRO) for enforcement. Support payments can also be made directly to the recipient if he or she agrees to not have them made through FRO.

When spouses in Ontario separate there is no division of property, but there is a calculation made to determine how much money the person whose net asset value has increased most during the marriage should pay to the other so that they each end up with assets of equal value for the period of their marriage. This payment is called an equalization payment. The matrimonial home is every property in which a person has an interest and that was ordinarily occupied by the person and his or her spouse as their family residence at the time of their separation. There can be more than one matrimonial home, such as a vacation home or cottage. The matrimonial home in Ontario qualifies for special treatment in two ways. First, regardless as to whose name it is in, both spouses have equal rights to the possession of the matrimonial home. That right continues until the parties are no longer spouses or until there is a court order or agreement providing otherwise. No one can throw out the other spouse just because one party owns the house.