There are three grounds for divorce in Canada:
(i) Separation for one year;
(ii) Adultery; or
(iii) Physical or Mental Cruelty
In Ontario, an Uncontested Divorce is commenced by a Simple or Joint Application. In simple terms, it is a court proceeding whereby both parties are mutually seeking a divorce and have agreed on matters such as division of property or assets, spousal support, child support, custody and access issues and court appearances are usually not required.
It is important to be aware that you must be separated for a minimum of 1 year prior to seeking a divorce. Separation does not necessarily mean that one spouse must move out of the matrimonial home, it is very much possible to be living separate lives whilst living in the same home. Former couples may cohabit in the same home for financial reasons or children etc.
There are several factors and criteria that the Courts consider to determine whether someone may be living separate and apart, such as:
(a) Physical separation;
(b) Withdrawal by one or both of the spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium;
(c) Absence of sexual relations is not conclusive, but is a factor to consider;
(d) Lack of communication between the spouses and discussion of family problems;
(e) Absence of joint social activities;
(f) Meal pattern;
(g) Performance of household tasks;
(h) Making plans for his or her assets as a separated person
(i) The relationship and conduct of each of them toward members of their respective families and how did such families behave towards the parties
(h) The financial arrangements between the parties regarding the provision of or contribution toward the necessaries of life (food, clothing, shelter, recreation, etc.)
Therefore, in the event you intend on seeking a divorce in the near future, we recommend you that you seek legal guidance or advice to have a Separation Agreement in place to protect yourself and/or your children.
At UL Law are committed to providing our clients with the genuine, fierce, aggressive, thorough and caring representation. We are big enough to produce results and small enough to care for our clients.
If you have now been separated from your spouse for more than 1 year and if you believe that your differences are now irreconcilable and divorce is the way to proceed, you will be required to produce an original copy of your Marriage Certificate in order to proceed with your application. If you do not have your Marriage Certificate and if your marriage was registered in Ontario, you can then request a copy from Service Ontario.
If you were not married in Ontario and your Marriage Certificate is not in English, you will then require to have your Marriage Certificate translated. Our firm can have this done for you but you may incur additional fees.
After you have been separated for more than 1 year and you have provided our office with your Marriage Certificate, the divorce proceedings will be commenced by filing an Application of Divorce with the nearest courthouse and then have it served upon your to be former spouse. If your spouse lives in Canada, he or she will have up to 30 days to respond to your application and if outside Canada, then 60 days.
Your divorce will remain uncontested, if your spouse does not respond or agrees with the facts stipulated in the Application for Divorce, however if there is an objection or disagreement to your application, then your divorce will become contested.
If you are seeking child, spousal support or making property claims from your spouse, you will then be required to provide the following additional documentation to our office:
(i) Copies of your Notices of Assessment for the last three years;
(ii) A Copy of your Income and Deductions printout, which may be obtained from the CRA;
(iii) Daycare receipts and other expense receipts and proof if you are seeking Child support.
HOW MUCH TIME WILL IT TAKE?
The usual time period for completing this process can last from 3 to 4 months depending on various contingent factors. At times, there can be a delay from within the courthouse with respect to obtaining a Clearance Certificate from the Central Registry of Divorce Proceedings and this is an internal court process, over which you have no control and at times it can depend on the specific court house where the Application is being filed.
Our fees are up front which include all court disbursements. If you are seeking a simple Uncontested Divorce, our fees are $2,450.00 plus HST.
If you have made up your mind and you now are of the opinion that separation from your partner is inevitable, then it is imperative that you seek you legal guidance and ensure that you have a Separation Agreement in place to protect your future, as it is this piece of paper that you will be relying on for a smooth transition to the next phase of your life that you will be attempting to rebuild on your own.
Divorces can be quite bitter and prevent you from moving on with your life, if there is no Separation Agreement in place. In simple words, a Separation Agreement is a binding contract that is entered into by both spouses that speaks to the arrangements between both the spouses upon parting ways.
Terms and conditions regarding spousal support, child support, duration of support, custody of children, access to children, where the children will live, which parent will have the child or children on which holiday, future financial disclosure, sale of the matrimonial home etc. are all covered in a Separation Agreement. If there is no agreement in place to address such issues, either spouse out of being vindictive may not consent or agree to your terms and therefore lead to one party being profoundly frustrated, which will cause further friction and animosity towards the former partner and prevent that party from moving on. You do not want to be stuck in this vicious cycle of fighting with your former partner on a daily basis. A Separation Agreement can give you that piece of mind.
At UL Lawyers, we are committed to passionately and fiercely advocating for your needs with sensitivity, dignity and compassion. Pain caused from a divorce can be equivalent to losing a loved one and it is during this time that a spouse may be the most vulnerable, sensitive and fragile. Our firm cares for our clients and will be there for you at this need of hour and time.
WHAT ALL DO WE INCLUDE IN A SEPARATION AGREEMENT?
(i) Who will the children reside with? Where will the children live?
(ii) Which parent will have custody of the children during the summer or winter holidays?
(iii) Which school will the children attend?
(iv) Which religion will the children follow?
(v) What extracurricular activities will the children participate in?
(vi) If one parents wants to relocate or move away, how will custody and access issues be resolved?
(vii) Which parent will make the day to day decisions for the children?
(i) Which parent will pay Child Support?
(ii) How Child Support in Ontario must be calculated in accordance to the Ontario Child Support Guidelines;
(iii) How support is based on your income and number of children involved;
(iv) What age Child support will continue until;
(v) Who will pay additional daycare expenses, private school expenses etc.
(i) Which spouse will pay Spousal support?
(ii) Is there proper financial disclosure?
(iii) How long will Spousal Support be paid for?
(iv) Is spousal support waived? And if it is waived, how long is waived for?
MEDICAL AND DENTAL BENEFITS
(i) Which parent will maintain the extended health care benefits?
(ii) If the benefits are discontinued, which spouse will pay for the continued premiums?
(iii) How the payment for uncovered benefits will be paid?
DIVISION OF PROPERTY
(i) Which spouse will live in the matrimonial home?
(ii) Will the matrimonial home be sold? How will the proceeds be divided?
(iii) If the matrimonial home is not sold, who will pay for the upkeep and expenses of the home?
(iv) How will the other assets and properties be divided? How will the income for the additional properties be divided?
(v) Who will make payments on the mortgaged properties?
(vi) Who will make payments towards the line of credit?
Section 34 (1)(i) of The Family Law Act allows a court to make an interim or final order “requiring that a spouse who has a policy of life insurance as defined by the Insurance Act designate the other spouse or a child as the beneficiary irrevocably”.
(i) If one spouse has a life insurance policy, who will be the beneficiary?
(ii) If the custodial parent dies and the non-custodial parent is given custody, what kind of a life insurance policy should be in place for the surviving children and former partner to raise the children?
(iii) As the purpose of insurance is to secure support, when would this obligation come to an end?
(iv) Which partner will be required to pay the premiums?
(i) Parties to a Separation Agreement must determine what the future course of action will be in the event there cannot be a meeting of the minds regarding a decision that has to be made by both former partners;
(ii) Do both parties agree to bind themselves irrevocably to Arbitration or Mediation?
(i) Which partner will pay for incurred debt after separation but before the divorce is recognized?
(ii) The Agreement will indicate how debts are to be divided and which party shall pay for what incurred debt?
(I) Work pensions do not belong to either partner or spouse. In fairness, it is considered to be a matrimonial asset that must be entered into separation and divorce negotiations for fair and equitable pension distribution;
(II) The true value of a pension cannot be determined by simply viewing the Pension Statement but rather a proper Pension Valuation is required for a fair and equitable distribution of the assets;
(III) Proper evaluation of RESP’s and RRSP’s is required as well to fairly distribute assets.
FULL FINANCIAL DISCLOSURE
(i) This is a process by which both partners formally provide documentation regarding bank accounts, cash, savings, investments, stock options, pensions, extended health care benefits, debts, liabilities from the day you were married until the date of separation and until the divorce takes place;
(ii) Financial disclosure ensures there is complete transparency and that nothing is hidden from either spouse;
PROVISIONS FOR FUTURE CHANGES
(i) It is imperative to insert a clause which will speak in detail to any changes that may occur in the future;
(ii) A spouse at present may have a very good job and offer to pay complete child and spousal support but tomorrow might be out a job a may not be able to keep up with payments;
DO I NEED A SEPARATION AGREEMENT?
The first thought that will come to your mind is, obviously this lawyer is going to recommend a Separation Agreement, he or she is going to get paid for this. You may be correct in thinking that a lawyer will get paid for drafting a Separation Agreement for you but what you will receive in return is peace of mind and to be candid, there is no price that can be attached to peace of mind.
At the onset of a divorce or separation, spouses are usually bitter with one another and may want to seek revenge or may want to hurt the other partner by not agreeing to his or her terms, especially when there are child support, spousal support or property claims involved. The drive to be vindictive at this stage of your life can cause considerable anxiety, depression, conflict and further resentment for ex-partner.
In such a scenario, the last thing you need in life is numerous and unnecessary problems and a constant back and forth between you and your ex-partner. It is in such circumstances that Separation Agreements are essential as it is a document you can point towards to remind your ex-partner as to the agreements.
The future is not foreseeable and therefore Separation Agreements address provisions for future changes and have can have back up plans for various contingencies. For example, a Separation Agreement will address the amount and duration of spousal support and what amount may be owed by the payor spouse if the other spouse remarries or is able to seek new employment.
Further, the Court may not grant a divorce prior to the terms of the Separation Agreement have been clearly decided upon by both parties.
When applying for a mortgage, it is very much likely that your financial institution will require you to provide them with a copy of the Separation Agreement as it speaks to your complete net worth and sources of revenue.
CAN I DRAFT A SEPARATION AGREEMENT ON MY OWN OR WITH MY EX?
Part IV of the Family Law Act governs Separation Agreements. This section of the Act allows partners to draft their own Separation Agreements outside the courts. Albeit, it is not recommended that individuals attempt to draft their own Separation Agreement prior to seeking legal advice or legal guidance. Again, the thought that will cross your mind is, I am reading a lawyer’s website, he or she is obviously going to say that I should not draft my own agreement, after all, I will paying him or her to draft this Agreement for me. Yes, whilst it is true that you will pay your lawyer, your hard earned money to draft a Separation Agreement for you, however the protection you will receive in return will give you a good night sleep for the future and a much smoother transition to the next phase of your life where you will be able to move on.
It is important to be precise, thorough, rational, realistic, thorough, intuitive and specific when drafting a Separation Agreement and we can assist you with this.
CAN A SEPARATION AGREEMENT BE SET ASIDE?
The Family Law Act s. 56(4) states that, upon application of one of the spouses, a court may set aside a Separation Agreement or Domestic Contract in one of the three scenarios:
(i) If a party failed to disclose to the other significant assets, or significant debts or other liabilities, existing when the domestic contract was made;
(ii) If a party did not understand the nature or consequences of the domestic contract; or
(iii) Otherwise in accordance with the law of contract. R.S.O 1990, c.F.3, s. 56(4).
Additionally, according to s. 56(5) of the Family Law Act, the court may on application, set aside all or part of a separation agreement or settlement, if the court is satisfied that the removal by one spouse of barriers that would prevent the other spouse’s remarriage within that spouse’s faith was a consideration the making of the agreement or settlement. R.S.O 1990, C.F.3, s. 56 (5).
Other factors which may set aside a Separation Agreement are:
(a) Improper or Incomplete Financial Disclosure: If one spouse is unaware of important financial information of the other spouse, a Judge will consider overturning the contract;
(b) Coercion, Exploitation of Vulnerability or Oppression: If a court determines that any of these factors are present and it is determined by a Court that the domestic contract was negotiated in bad faith, a Court will overturn the contract.
(c) Best Interest of the Child Test: If the provisions stated in the contract are not in line with the Best Interest of the Child Test, a Court will consider overturning the domestic contract to ensure the contract follows the guidelines stipulated by the Best Interest of the Child Test.
Miglin v. Miglin  S.C.J. No. 21, 2003 SCC 24
The leading authority on whether Separation Agreements can be set aside is the case of Miglin v. Miglin  S.C.J. No. 21, 2003 SCC 24, in which the Supreme Court set out the principles the court will consider to determine whether a Separation Agreement should be set aside. In this long-awaited judgement, the Supreme Court set out a two stage analysis test to clarify the whether it is even possible to set aside the Separation Agreement.
Stage 1: In an originating application for spousal support, where the parties have executed a pre-existing agreement, the court should first look to the circumstances in which the agreement was negotiated and executed to determine whether there is any reason to discount it.
(a) The Circumstances of Execution:
(i) The Court must determine whether there were any circumstances of oppression, pressure, or other vulnerabilities, taking into account all those set out in s. 15.2(4)(a) and (b) and the conditions under which negotiations were held and whether there was any professional assistance;
(ii) There must be evidence to warrant the court’s finding that the agreement should not stand on the basis of a fundamental flaw in the negotiation process;
(iii) Recognition of emotional stress of separation or divorce should not be taken as giving rise to a presumption that the parties in such circumstances are incapable of assenting to a binding agreement;
(iv) The mere presence of vulnerabilities will not, in and of itself, justify the court’s intervention. The degree of professional assistance received by the parties will often overcome any systemic imbalances between the parties;
(v) Where vulnerabilities are not present, or are effectively compensated by the presence of counsel or other professionals or both, or have not been taken advantage of, the court should consider the agreement as a genuine mutual desire to finalize the terms of the parties’ separation and as indicative of their substantive intentions. Accordingly, the court should be loathe to interfere. In contrast, where the power imbalance did impair the bargaining process, the agreement should not be read as expressing the parties’ notion of equitable sharing in their circumstances and the agreement will merit little weight.
(b) The Substance of the Agreement:
(i) Where the court is satisfied that the conditions under which the agreement was negotiated are satisfactory, it must then turn its attention to the substance of the agreement.
(ii) The court must determine the extent to which the agreement takes into account the factors and objectives listed in the Act, thereby reflecting an equitable sharing of the economic consequences of marriage and its breakdown. Only a significant departure from the general objectives of the Act will warrant the court’s intervention on the basis that there is not substantial compliance with the Act.
(iii) The court must look at the agreement or arrangement in its totality, bearing in mind that all aspects of the agreement are inextricably linked and that the parties have a large discretion in establishing priorities and goals for themselves.
(i) Where negotiation of the agreement is not questioned on the grounds set out above and the agreement was in substantial compliance with the general objectives of the Act at its time of creation, the court should defer to the wishes of the parties and afford the agreement great weight.
(ii) Accordingly, on the bringing of an application under s. 15.2 of the Act, a court should assess the extent to which enforcement of the agreement still reflects the original intention of the parties and the extent to which it is still in substantial compliance with the objectives of the Act.
(iii) It is unlikely that the court will be persuaded to disregard the agreement in its entirety but for a significant change in the parties’ circumstances from what could reasonably be anticipated at the time of negotiation.
(iv) The spouse bringing the application must clearly show that, in light of the new circumstances, the terms of the agreement no longer reflect the parties’ intentions at the time of execution and objectives of the Act. Accordingly, it will be necessary for the applicant to show that the new circumstances were not reasonably foreseen and that the current agreement in place is no longer feasible and rational in light of the new circumstances.
(v) For example, it will be unconvincing to tell a Judge that the agreement never contemplated that the job market might change, or that parenting responsibilities under an agreement might be somewhat more onerous than imagined or that a transition into the workforce might be challenging. Negotiating parties should know that each person’s health cannot be guaranteed. An agreement must also contemplate, for example, that the relative values of assets in a property division will not necessarily remain the same. Housing prices may rise or fall. A business may take a downturn or become more profitable. Moreover, some changes may be caused or provoked by the parties themselves. A party may remarry or decide not to work. Where the parties have demonstrated their intention to release one another from all claims to spousal support, changes of this nature are unlikely to be considered sufficient to justify dispensing with that declared intention.
(vi) The test here is not strict foreseeability; a thorough review of case law leaves virtually no change entirely unforeseeable. The question, rather, is the extent to which the unimpeachably negotiated agreement can be said to have contemplated the situation before the court at the time of the application.
(vii) The court should be persuaded that both the intervention and the degree of intervention are warranted.
Doucet v Doucet, 2016 ONSC 5602
This is a case where the Ontario Superior Court of Justice in 2016 determined that child and spousal support provisions of the Separation Agreement executed by both parties were deemed unenforceable. The Court reached its conclusion on the premise of the following:
(I) First, the process by which the agreement was negotiated was unsatisfactory. It was prepared and executed in haste. It is not clear the extent to which there was financial disclosure before the agreement was signed;
(II) The wife signed the agreement in order to secure her husband’s consent so she could move to a different city with her husband. The husband also admitted that he pressured his wife into signing the agreement;
(III) The wife despite having a lawyer in a different city, did not consult her lawyer before signing the agreement. She was emotional at the time, which was a consequence of her own hospitalization and her father’s death and therefore she was in a vulnerable state of mind;
(IV) The agreement did not take into account the factors and objectives for spousal support as set out in the Divorce Act in some fundamental respects.
(V) The agreement made no provision for spousal support. The husband was the primary bread-winner during the marriage whereas the wife was the homemaker, including being the primary caregiver for the parties’ three children. The wife and children were dependent on the husband’s income throughout the marriage and at the time of separation. Consequently the wife was economically disadvantaged by the role she assumed during the marriage. Her assumption of child care and homemaking allowed the husband to develop skills and a work history that enabled him to secure employment. The husband worked hard to support the family, but the benefit of sharing his income was not reflected in the Separation Agreement, which makes no provision for Spousal Support.
(VI) The Separation Agreement further failed to promote the wife’s economic self-sufficiency and the earning gaps between the parties were quite significant.
(VII) The Agreement further did not provide an adequate level of child support in accordance with the shared care under the Child Support Guidelines. Not only did the husband underpay child support in relation to his income, he refused to pay any of the children’s section 7 expenses, related to health and extracurricular activities.
(VIII) The agreement also specified that child support would not be varied without the written consent of both the parties. This provision is contrary to the objectives set out at section 1(a) and (d) of the Federal Child Support Guidelines, which provide that children benefit from the financial means of both spouses following separation and that there be consistent treatment of spouses and children who are in similar circumstances.
ENFORCING SEPARATION AGREEMENTS/ DOMESTIC CONTRACTS
Domestic contracts can be enforced by the courts in the same way court orders are enforced. If you have signed a domestic contact and your ex is not abiding by it, we can help you enforce the contract in court. Most of the time, courts will enforce what is in a domestic contract.
We highly recommend that you obtain legal advice prior to executing a domestic contract. Making a hasty decision can always be costly in the long run, especially if you have a jealous ex-partner who just continues to make your life difficult. If your partner has stopped paying you, child or spousal support, you can challenge this and be awarded the money you are rightfully owed under the domestic contract.
- A cohabitation agreement is a written contract between two individuals who plan on living together or already live together but are not legally married.
- A cohabitation agreement allows the two individuals to decide how they want their rights and obligations protected during their cohabitation, and in the event the relationship ends in separation or upon the death of one of the parties.
- The purpose of a cohabitation agreement is to protect your assets. Without a cohabitation agreement, should your relationship end, your ex-partner can make a claim on your assets, property and income.
- If you plan on getting married in the future, we can draft your cohabitation agreement to become a marriage contract onwards from the date of marriage.
- Through a cohabitation agreement, you can protect:
- Property ownership and/or division
- Spousal support obligations
- Bank accounts, investments and earnings
- Personal property
- There are limitations as to what clauses you can put in a separation agreement. You cannot address custody of the children, child support or access to children in a separation agreement.
Pre-nuptial / Marriage Agreements
- A marriage agreement is a written contract between two people who are already married, or getting married in the near future. A marriage contract is the Canadian equivalent of a prenuptial agreement.
- A marriage contract allows the two individuals to decide how they want their rights and obligations protected during their marriage, and in the event the relationship ends in a separation, divorce or upon the death of one of the parties.
- The purpose of a marriage contract is to protect your assets. Without a marriage agreement, should your relationship end in divorce, your ex-partner can make a claim on your assets, property and income – correctly termed as “Equalization”.
- Equalization calculates both partner’s net family property from of the date of marriage and the date of separation. The party with the lesser of the two amounts is entitled to half of the difference between them, in an attempt to make both partners equal.
- Without a marriage contract, if you are the higher earner of the two, you may be liable to pay spousal support as well.
- Through a marriage agreement, you can protect:
- Property ownership and/or division
- Spousal support obligations
- Bank accounts, investments and earnings
- Personal property
- There are limitations as to what clauses you can put in a marriage agreement. You cannot address any limitations as to the spouse’s right to possession of the matrimonial home, custody of the children, child support or access to children in a marriage agreement.
INDEPENDENT LEGAL ADVICE
- Independent legal advice is where a lawyer advises you about any and all potential rights and obligations you may be binding yourself with by signing a domestic agreement, such as a separation, cohabitation or marriage agreement.
- Your lawyer will look out for your best interests and advise you of possible changes and amendments you may want made to the Agreement prior to signing it.
- Legal jargon can be scary and there are certain clauses one cannot legally put in domestic contracts. If you are unaware of the law, it is necessary to protect yourself by obtaining independent legal advice to ensure you are not giving up your fundamental rights.
- A lawyer can also help you find out if you have all of the information about your spouse’s finances you need to decide whether the agreement is right for you.
- You lawyer will also sign your “Certificate of Independent Legal Advice” – which is required for your agreement to be binding. As without independent legal advice, the courts are more likely to overturn any domestic agreement.
- Each party should obtain independent legal advice about any domestic contract prior to signing, as it is your protection should your partner later claim they did not understand what they were signing and what rights and obligations they had pursuant to the agreement.
Section 56 of the Family Law Act sets out the most common reasons a domestic contract may be set aside, in whole or in part. They include the following:
- A party to the contract failed to disclose a significant asset or debt in existence when the contract was executed.
- A party failed to understand the nature and consequences of the agreement (therefore raising issues of capacity).
- Any other ground upon which an agreement may be attacked pursuant to the ordinary principles of contract law.