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Divorce in Canada is governed by the federal Divorce Act. It applies to all provinces in Canada.

In order to obtain a Divorce in Ontario you or your spouse must have ordinarily resided in Ontario for at least one year prior to the Divorce Application. The most common ground for obtaining a Divorce is that the parties have lived separate and apart for at least one year with no reasonable prospect of reconciliation. In certain circumstances parties may be considered as being separated even if they continue to live under the same roof.

A Divorce Application may be commenced at any time after the date of separation; however, the parties must have been separated for at least one year at the time of the Divorce Order. In Ontario the Divorce Application is commenced in the Ontario Superior Court of Justice.

Before a Divorce is granted the court also requires that reasonable arrangements have been made for the support of the children of the marriage having regard to the Child Support Guidelines. In most cases this requires the parties to have a Separation Agreement or Court Order in place that adequately deals with child support prior to the granting of a Divorce Order

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Custody is the legal right to have a say in the upbringing of your child(ren). Access, on the other hand, is the right to see your child(ren).

There are generally four types of custody arrangements:

• Sole Custody

  The parent who has sole custody has the exclusive right to make decisions regarding the children’s education, health, religion and to some extent where the children reside, without any input from the other parent. Custody does not necessarily determine the amount of time the children spend in a parent’s care although a parent with sole custody tends to have the children most of the time.
  
  
  

• Joint Custody

  This means that both parents make decisions together regarding the major issues affecting the children, such as education, health, religion, and where the children reside. Some degree of cooperation between the parents with respect to raising the children is required. Past cooperation is generally an indication of future cooperation.

  
  
  
• Shared Custody

  This commonly refers to a living arrangement whereby the children spend roughly equal time residing with each parent, with each parent spending at least 40% of the time with the children. For example, the children might live with the Father one week and with the Mother the following week and rotate accordingly. Generally with shared custody arrangements the parents will make major decisions together regarding the children as in joint custody.

  
  
  
• Split Custody

  This refers to a situation where there are two or more children and at least one child resides primarily with each parent. For example, a couple has two sons. One son resides primarily with the father and the other son resides primarily with the mother.
  
  

Access is the right to see your child(ren). Generally the non-custodial parent is entitled to access to the children. If the other parent has sole custody however, the access parent is not entitled to participate in custodial decision making on matters such as education, health, religion and where the children reside.

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This is imposed by a judge if there are allegations of abuse, addiction, mental-health issues, a risk that one parent will flee with the child or cause harm to the child or if the parent has not seen the child for an extended period of time. Supervised Access typically occurs at a government-operated access centre.

Generally this is an ugly by-product of high-conflict divorce in which one parent, usually the custodial parent, turns the children against their ex-spouse or partner in an orchestrated campaign of hatred. Alienation at an advanced stage is difficult to undo. It is also difficult to prove. Action should be taken early. In some cases of alienation judges have been willing to “switch custody” and give sole custody of the children to the alienated parent. Such drastic measure must however be in the best interests of the children.

Every parent has a legal obligation to assist financially in the raising of the child(ren). Child support is a right of the child and it will not easily be displaced. Child support is intended to provide financial assistance to the parent with whom the children primarily reside and who has the day to day care of the children. Child support does not necessarily end when the child reaches 18 years of age but may continue if the child is in full time attendance in school. The type of custody and access arrangement may affect the amount of child support payable.

There are two types of child support. Basic child support and special/extraordinary expenses.

Basic child support is intended to cover the day to day living expenses of the child such as lodging, food and clothes.

Special or extraordinary expenses are over and above the day to day living expenses such as child care expenses, ballet and hockey activities and education costs. These expenses must be at least $100.00 per year to qualify.

In Ontario, the Child Support Guidelines establish Tables relating to basic child support that the access parent must pay to the primary-care parent. The Guideline Tables are based on the access parent’s gross taxable income and the number of children residing with the primary-care parent.

There are limited circumstances in which the Guideline Tables will not apply. The most common is where the access parent has the children in his or her care at least 40% of the time over the course of the year. The Court may vary the amount payable to take into account the increased costs of such shared custody arrangements. Also in very limited circumstances the access parent may obtain a reduction of the Guideline Table amount on the basis of undue hardship. There is a high threshold in establishing undue hardship which may be based on factors such as having unusually high debts incurred to support the family or to earn a living, having unusually high access costs or having a legal duty to support another child, spouse or other person.

In addition to the basic child support, there may be additional expenses with respect to the children which are incurred by the primary caregiver or custodial parent. The most significant expenses for younger children are child care expenses necessitated by the custodial parent's employment. The custodial parent may also have to incur extra expenses for education for the children or for extra-curricular activities. Post-secondary expenses can also be significant. An amount to compensate for these special or extraordinary expenses is added to the Guideline Table amount.

Unlike basic child support which is generally the same for all paying parents with the same income and number of children, special or extraordinary expenses vary from family to family, based on past history, reasonableness of the expenses and the ability of the paying parent to pay.

Typically the parties share the special or extraordinary expenses for the children in an amount proportionate to their respective incomes. For example, if the Father earns $80,000.00 per year and the Mother earns $40,000.00 per year then the Father who earns two-thirds of the combined income of the parties would pay two-thirds of the special or extraordinary expenses for the children.

Special or extraordinary expenses must however be reasonable in light of the parties’ incomes and the necessity of the expenses for the children. Most separation agreements typically require parties to consult with each other and to provide their reasonable written consent prior to the incurring of special or extraordinary expenses for the children.

On January 1st, 2005, the Spousal Support Advisory Guidelines were introduced. These guidelines are intended to bring more certainty and predictability to the determination of the amount of ongoing spousal support if the recipient spouse is entitled to spousal support.

Unlike the Child Support Guidelines, these advisory guidelines do not have binding force of law; however, they are applied by the courts in appropriate circumstances. The issue of spousal support continues to be decided on a case by case basis and courts rely on the parties’ respective financial statements to determine a fair amount of support.

Equalization of the parties Net Family Properties applies only to married spouses.

Each spouse must prepare a sworn Financial Statement listing all assets and liabilities as of the date of marriage, the date of separation and the current date. The lawyer for each party will calculate each party’s Net Family Property which is essentially their net worth on the date of separation minus the party’s net worth on the date of marriage. Certain assets owned on the date of separation may be excluded from a party’s Net Family Property such as a gift from a third party or an inheritance received during the marriage.

Equalization of Net Family Property occurs whereby the party with the greater Net Family Property pays the party with the lesser Net Family Property one-half the difference between the two parties’ Net Family Properties.

If the parties own joint assets that are to be kept by one party, the party that seeks to keep the joint asset is generally required to buy out the other party’s one-half interest in the joint asset at fair market value. Generally, any such buy-outs occur after the parties’ Net Family Property has been calculated and the buy-out amount is added or subtracted from the Net Family Property equalization amount.

It is the obligation of each party to provide full and frank disclosure of the party’s income, expenses, assets and liabilities. This information is set out in a Financial Statement, which is a sworn statement under oath. A Financial Statement is required in almost all court proceedings. Negotiations of Separation Agreements cannot be finalized unless both parties have exchanged their respective Financial Statements.

It is important that the parties accurately prepare and exchange Financial Statements at the early stages of negotiating a Separation Agreement. Your lawyer requires the full financial disclosure of both you and your spouse in order to properly advise you of your rights and obligations.

For an example of a completed Financial Statement please click here.

A Separation Agreement is a written agreement signed by the parties and witnessed.which deals with all or part of the issues between the parties. A Separation Agreement is negotiated between the parties and their respective lawyers. Separation Agreements can be quite comprehensive. The cost of negotiating a Separation Agreement is substantially less and is far more amicable than having the matter proceed through the court system.