How the separation process works in Ontario

Few people enter an intimate relationship expecting to eventually separate in the future. That is why when spouses and common-law partners decide to separate, there are often many unsettled legal issues that need to be resolved. The laws that govern separation in Ontario, and other aspects of family law, can be found in a piece of legislation called the Family Law Act. However, going to court regarding a dispute can be a miserable and frustrating experience for everyone involved. To avoid getting caught up in a long, expensive legal battle in family court, couples who separate can consider creating a Separation Agreement, which is a type of “domestic contract.”

Getting started

Although it is not required to have a separation agreement, it is advantageous to have one. Such an agreement resolves issues that you and your partner can agree on and helps narrow possible disputes during any future proceedings in court. Your separation agreement can resolve issues related to spousal support, as well as other issues such as child support, custody of any child, access to any child, planning the educational and moral development of a child, and dividing property.

Start gathering your disclosure:

Rule 13 of the Family Law Rules puts great emphasis on early financial disclosure. The Rules require a person starting a Family Court procedure to serve financial disclosure at the beginning of the proceedings and the spouse to also provide disclosure shortly after. There are sanctions for not doing so, and a person who goes to Family Court without having given proper disclosure will be on the wrong side of the judge right from the beginning. Even if you do not go to court to work things out with your spouse, you still need to exchange financial disclosure for having a valid and enforceable settlement with your spouse. Getting your financial disclosure together at the beginning of any process will help move things along much more quickly, at a lower cost, with fewer fights.

Settling out of court

If you are separated or thinking of separating, it is best to speak to a lawyer about your situation. A lawyer can give you specific information about the law and how it might affect you. People may have disagreements they need to resolve, but that does not mean they have to fight them out in court. Mediation, Arbitration, and Collaborative Practice are ways to resolve disagreements without a big fight. These options give the parties more control over what the final settlement will be.

Mediation:

A mediator, a neutral third party, can help you reach an agreement on various issues, including support payments, property division, parenting time, and decision-making responsibility concerning a child. Mediators, unlike arbitrators or judges, do not decide cases or impose settlements.

Arbitration:

Arbitrators, like mediators, are neutral third parties. However, unlike mediation, parties who wish to arbitrate must agree to be bound by the decision made by the arbitrator.

Collaborative Family Law:

Collaborative lawyers can assist parties in negotiating a resolution of their disputes in a principled and respectful fashion without going to court. Both parties and their lawyers must sign a contract committing to this process in advance.

Going to court

If you and your spouse cannot agree on how to resolve your issues, you can go to court and ask the judge to decide. If you are legally married, you will need to apply to a court to get a divorce to end your marriage. Sometimes you may agree on everything except one thing, such as the custody of your children or what should happen to your family home. You may go to court and ask the court to decide for you. Many decisions about children and support may need to be made quickly. If you cannot agree on what to do straight away, you can go to court to ask for a temporary order. This order can cover things such as custody of and access to children, how much support should be paid, and who can stay in the family home. Unless the court orders otherwise, the temporary order will remain in effect until the court can hear your case in full. The court will then make a final decision.

Completing court forms

If you and your partner have a signed separation agreement and wish to file that with the courts, you must complete Form 26B: Affidavit for filing a domestic contract or paternity agreement with the court. If your contract specified child support or spousal support, filing your agreement with the courts will mean that the Family Responsibility Office will enforce those support provisions. You can file most family court forms online using the Ministry of Attorney General’s Justice Services Online. If you cannot file online, file your documents in person at the courthouse or by email under the Family Law Rules and any orders, Notices, and Practice Directions issued by the Ontario Court of Justice and the Superior Court of Justice.

For help choosing and completing the divorce forms you need, contact Split Easy today.