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In the province of Ontario, divorce rules can be complicated, depending on the length of the marriage, whether there are any marital children and the ability of the spouses to come to an agreement regarding property division and support rights. The following sections provide a summary of the rules regarding obtaining a divorce.
One of the grounds for a divorce in the province of Ontario is the breakdown of marriage based upon the separation of spouses for more than one year. During this time, the spouses must live separate and apart, meaning that they may not cohabit for more than ninety days during this period. However, even if the spouses live apart, they are not legally divorced until they enter into a separation agreement or have a divorce judgment entered by a court of competent jurisdiction. The rules surrounding jurisdiction, as well as the specific grounds for divorce, are specified by the Divorce Act .
An uncontested divorce happens when one spouse files an application for divorce and the other spouse does not file an answer. In failing to file an answer, the spouse is essentially stating that he or she does not contest the divorce. However, for an uncontested divorce to be valid, the following must also be true:
The parties must have resolved all corollary issues, such as child support, child custody, child access, child visitation, and spousal support, through a separate agreement or court order
Once an application for uncontested divorce has been received and the one year separation period has passed, the judge will grant the divorce judgment.
Contested divorces are more common, especially with couples who have been married for a longer period of time, have children, or have a large deal of property to divide. Contested divorces may be settled outside of court, or they may be carried out by following formal divorce procedures.
If spouses wish to negotiate a divorce settlement outside the courtroom, they may enter into a separation agreement. During negotiation, they discuss the legal rights and obligations that they wish to enter into upon their separation. Each spouse must provide financial information to the other spouse. By sharing this information, they will be able to make a fully informed decision about how to divide the marital assets. Once an agreement is reached, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a final divorce decree.
If the parties are unwilling, or unable, to come to an agreement outside the courtroom, they may obtain a divorce through the formal court process. First, the spouse petitioning for divorce must file an application for divorce and financial statement with the court. The application for divorce states the grounds for divorce and often includes corollary issues, such as requests for child custody, child support, spousal support, or the appropriate division of marital assets. This application must be “issued” by appropriately serving your spouse with the divorce papers. Once the spouse has been presented with the divorce application and financial statement, these documents must be filed with an affidavit for service with the court.
The spouse receiving the divorce application must respond by serving the petitioning spouse with an answer and financial statement. They must then file these documents with the court within thirty days of receiving the divorce application. The answer must include any points of disagreement between the two spouses. Once the answer is received by the petitioning spouse, that spouse must file a reply within ten days if he or she disagrees with any statements contained in the answer.
Once all the proper papers have been served and filed with the court, a case conference is held where the spouses will discuss preliminary issues, such as disclosure, scheduling, and appointment of a Children's Lawyer, if there are children involved in the divorce.
Following this meeting, the parties begin the discovery process, through which financial documents are exchanged and the parties are given an opportunity to question the other party about any outstanding issues. If, during the discovery process, any issues must be resolved in a timely fashion, either party may bring a motion to resolve the issue. Examples of such issues include the failure of a spouse to pay interim child support that is necessary for the wellbeing of a child, or the failure of one of the parties to comply with all procedural requirements.
After the discovery process has been completed, the parties will meet for a settlement conference. During this conference, the parties will attempt to resolve any outstanding issues so that the case need not proceed to trial. This conference occurs in the presence of a judge, who will ask questions of the parties and, if necessary, provide advice as to how he or she would resolve the case. The parties need not wait until the settlement conference to reach a settlement agreement and, even if no settlement is entered into during the settlement conference, they may settle at any time prior to trial.
If the spouses are absolutely unable to reach a settlement agreement, the case will proceed to trial. During trial, witnesses will be examined by each of the parties, exhibits will be presented to the judge, and the parties will each argue their case. Following the trial, the judge will make an ultimate decision and enter a final judgment.
Divorce in Canada is not based upon the place of marriage, but rather based upon residency. Even if two spouses were not married in Canada, they can still be granted a divorce if they are residents of Canada for at least twelve months preceding the divorce application.
Donald v. Leyton - Responsible Lifestyles and Ontario Child Custody Law
David Donald of Hamilton, Ontario, and Paola Leyton of Santiago, Chile, were married in Chile in 2002 and moved to Ontario with her mother in 2005. The couple subsequently birthed a child. In 2006, Leyton and her mother took the child out of the Donald-Leyton household and didn't leave an address of where they were staying. Leyton claimed Donald had become an alcoholic and had sexually assaulted them.
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