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Divorce is a challenging and emotional process, and navigating the legal aspects can be overwhelming. If you’re considering filing for divorce in Ontario, it’s essential to understand the steps involved to ensure a smoother transition. This guide will walk you through the process, from initiating the divorce proceedings to obtaining a final judgment. 

Understanding the Grounds for Divorce in Ontario: 

In Ontario, you can file for divorce based on one of three grounds: 

1. Separation: You and your spouse have lived separately for at least one year. 

2. Adultery: Your spouse has committed adultery, and you can no longer continue the marriage. 

3. Cruelty: Your spouse has treated you with physical or mental cruelty, making it intolerable to continue the marriage. 

Step 1: Consultation with a Lawyer or Legal Advisor 

Before initiating divorce proceedings, it’s advisable to seek legal advice. A family lawyer or legal advisor can provide personalized guidance based on your situation, explain your rights and obligations, and help you understand the potential outcomes of the divorce process. 

Step 2: Completing the Necessary Forms 

 In Ontario, the first step in filing for divorce is completing the appropriate forms. The key form is the Application for Divorce (Form 8), which outlines the details of your marriage, separation, and grounds for divorce. Additionally, you’ll need to fill out a Form 36: Affidavit for Divorce, in which you provide sworn statements regarding the details of your marriage and separation. 

Step 3: Filing the Forms with the Court 

Once the forms are completed, they must be filed with the Ontario Court of Justice or the Superior Court of Justice. You can file the forms in person or by mail, along with the required court fees. Upon filing, you will receive a court file number, which will be used to track your case throughout the process. 

Step 4: Serving the Documents to Your Spouse 

After filing the divorce application, you must serve a copy of the documents to your spouse. This can be done in person by a third party over the age of 18, or through registered mail with acknowledgment of receipt. It’s crucial to follow the proper procedures for serving the documents to ensure they are legally valid. 

Step 5: Waiting Period and Response 

Once served, your spouse has 30 days (if served within Canada) or 60 days (if served outside Canada) to respond to the divorce application. If your spouse agrees to the divorce and does not contest the terms, they can file a Form 10: Answer and Waiver. If they contest the divorce or wish to raise any issues, they must file a Form 10: Answer, indicating their objections or concerns. 

Step 6: Attending Court  

If your spouse contests the divorce or if there are unresolved issues regarding custody, support, or property division, you may need to attend court hearings to resolve these matters. This may involve mediation or negotiation to reach a settlement, or in some cases, a trial to adjudicate the disputed issues. 

Step 7: Obtaining the Divorce Certificate  

Once all issues are resolved, either through agreement or court decision, you can request a divorce certificate from the court. This document serves as official proof that your marriage has been legally dissolved. It’s important to note that there is a mandatory waiting period of 31 days after the divorce judgment before the certificate can be issued. 

Conclusion 

Filing for divorce in Ontario involves several steps, from com

For married couples, the general rule upon breakdown of the relationship is that the property will be divided equally as set out by s.5 of the Family Law Act R.S.O. 1990, c. F.3. Although the general principle is that any increase in value during the marriage shall be shared equally with the spouse, there are rules and legal principles that render this division to be a complex legal determination.

An example is the exception of ‘excluded property’ as governed by S. 4(2) of the Family Law Act R.S.O. 1990, c. F.3, which automatically excludes property from the calculation, as set out below.

1. Property, other than a matrimonial home, that was acquired by gift or inheritance from a third person after the date of the marriage.

2. Income from property referred to in paragraph 1, if the donor or testator has expressly stated that it is to be excluded from the spouse’s net family property.

3. Damages or a right to damages for personal injuries, nervous shock, mental distress or loss of guidance, care and companionship, or the part of a settlement that represents those damages.

4. Proceeds or a right to proceeds of a policy of life insurance, as defined under the Insurance Act, that are payable on the death of the life insured.

5. Property, other than a matrimonial home, into which property referred to in paragraphs 1 to 4 can be traced.

6. Property that the spouses have agreed by a domestic contract is not to be included in the spouse’s net family property.

7. Unadjusted pensionable earnings under the Canada Pension Plan.  R.S.O. 1990, c. F.3, s. 4 (2); 2004, c. 31, Sched. 38, s. 2 (1); 2009, c. 11, s. 22 (5).

Another example, that does not make property division a straightforward determination, is the unconscionability clause in section 5 (6) of the Family Law Act. After applying all the rules and exceptions and preparing a carefully drafted net worth statement for the parties, the parties may still rely on section 5 (6) to argue for unequal division of property. This would require arguing that equal property division would be unconscionable. Circumstances which are unfair, harsh or unjust alone do not meet the high threshold of unconscionability before the courts.

As such, even married couples find that it is not a straightforward path to claiming property division. It is also important to note that in an age of declining marriage rates and increasing common law relationships, questions frequently arise as to how property is divided upon the breakdown of such partnerships, which are not guided by the rules that married couples are guided by. Consequently, claims for property can be complex for married couple as well as for common law couples.

In order to obtain certainty and peace of mind, it is suggested to obtain legal advice and talking to your partner about entering into an agreement (commonly referred to as prenuptial agreement).

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.

A recent Court of Justice case shed some light on the factors to consider whether changing the surname of a child is in the best interest of the child. Often times, prior to separation, the child has the surname of one of the parents. Post separation, the other parent wants the child to share their surname as well.

The Change of Name Act allows the custodial parent to apply to the Registrar General to change the child’s name. However, the other parent can object but the onus is on the person objecting the change to prove on a balance of probabilities that the name is not in the best interest of the children.  In Schaafsma v Eaton, a 2019 case that actually proceeded to trial on the issue of name change, we see the following factors outlined by the judge as summarizing the jurisprudence in determining whether prohibition of a name change is in the child’s best interests:

a)  Whether the proposed name change will exclude the name of the non-custodial parent.

b)  The length of time a custodial parent has had sole custody of the child.

c)  Whether there is a continuing close relationship between the child and the non-custodial parent.

d)  Whether there would be any serious effect on the non-custodial parent.

e)  Whether either parent has displayed any malice or improper motivation.

f)  The age of the child and the weight to be given to the child’s wishes, in light of that age.

g)  The length of time the child has had its name.

h)  The surnames of any siblings.

The Court further noted that “The test is one of best interests from the child’s perspective, as opposed to what may or may not be in the parent’s interests.”

Further, parents should understand that they should not apply to the family court to order a change in the child’s name. They should first apply to the Registrar, following which they could proceed in family court to dispense with the other party’s consent to change the name. At that point, the above factors would be considered.

*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.

There are at least three reasons why you should have a properly drafted Separation Agreement:

1. Costs
2. Time
3. Finality

A family lawyer is expensive: clients would be lucky to find lawyers under $200/hour. If you meet the financial eligibility and criteria (which typically means that you have no income or that you receive social assistance), you may qualify for Legal Aid, in which case a legal aid lawyer will represent you, at no cost to you. This poses three problems:

1) Do you actually meet the criteria to qualify for Legal Aid?

2) When will you find a legal aid lawyer willing to take your case?

3) Having a legal aid lawyer does not guarantee that you will receive funding to pay the lawyer for each step of the case and you may even be refused legal aid if the case is set down for trial.

Legal Aid aside, the costs you will be facing should you hire a family lawyer for court proceedings may amount to paying a mortgage, on the lower side of the cost spectrum, and to the cost of refurnishing your house each month, on the higher side of the cost spectrum.

And then, there is the other option: not hiring a lawyer at all. This presents zero legal costs, especially if you and your spouse figure that you can solve your problems amicably. While the legal costs are low at the present time, this may actually cost you in several ways, adding to the time both parties spend on this, and defeating the main goal of a Separation Agreement, which is that of finality.

What are some of the typical downfalls of not having a properly drafted Separation Agreement?

• It could be that your spouse has a change of heart down the line. It is very likely that:
  • You did not comply with the legal requirements of a separation agreement
  • One of you did not understand the nature or consequences of what you were signing
  • You failed to provide proper financial disclosure
  • It also opens up the gates to arguments of undue influence, unconscionability, non est factum, duress, mistake, misrepresentation and repudiation, which are contract law grounds for setting aside a contract.
• You did not define all terms properly. For example, your spouse agreed to let you have the kids during March break. Did you define March break? Does it include weekends? When are the kids picked up and dropped off? This is one example far too common.
• A material change of circumstances may occur. For example, your spouse’s salary decreases. This is grounds for your spouse to make a motion to the court to change the Separation Agreement. Although not all material change of circumstances can be foreseen, a properly drafted Separation Agreement can address such changes.

This is not to say that a Separation Agreement cannot be costly. Sometimes, negotiation alone can result in high costs and a properly drafted Separation Agreement might also be subject to change. It is up to you to do a cost-benefit analysis: if you are uncertain, expending a limited retainer for a legal consultation gives you the opportunity to make an informed decision.

**The content on this website is not legal advice.

1. Child support is not deductible to the payor or taxable to the recipient.
2. Monthly spousal support is deductible to payor and taxable to the recipient. There should be a court order or agreement. A periodic payment made before the written agreement will be deemed to be a “support amount” if:
   1. the payment is made in the year of the written agreement or in the preceding year; or 
   2. the agreement states that the payments are to be considered to be periodic payments under the agreement. 
3. Lump sum spousal support is NOT deductible to payor and taxable to the recipient. This includes single amount paid at once or instalments over time. Some exceptions include:
   • for a past due balance of periodic payments in arrears; 
   • to prepay future spousal periodic payments due within a short period of time. 
4. Payment of support from estate do not qualify.
5. Third Party Payments for the benefit of a spouse, former spouse or child (e.g. private school tuition) are deductible to payor and taxable to recipient if specified in court order or agreement, both parties agree they are taxable/deductible, parties specifically refer to ITA S5. 56.1(2) & 60.1(2)

**The content on this website is not legal advice.

Did you know that the term “custody” actually originates from property law, effectively using this term when referring to children in family law? As a practitioner who understands the fight about “custody,” I am very much looking forward to the long-awaited amendments to the Divorce Act, with the first substantial change to the parenting provisions since the Act came into effect in 1986. A few of the changes include:

Custody and access– these terms will be replaced with “parenting orders” and “contact orders.”

The best interest of the child (BIOC) continues to be the foundational principle and it would create a duty for parents to exercise their responsibilities in accordance with the BIOC, including equal shared parenting when appropriate. Unfortunately, equal shared parenting is not yet a presumption.

Resolution outside of court– continue to include language that encourages agreements outside of court by way of alternative dispute resolution.

This is a true step forward which might actually lead to more settlements, since parties will no longer be fighting about who gets “custody.” I look forward to seeing how the new legislature will impact decisions regarding parenting and if we are finally moving one step closer to more decisions of equal shared parenting, even if not yet a starting point in the legislature.

**The above is not legal advice. Please contact a lawyer if you seek legal advice.

1. The gift/inheritance must be traceable as at the date of separation

Money should not be mixed with other funds to be able to adequately trace back the inheritance or gift. For example, if the gift is cash, you should use a separate account to hold the cash, or purchase stock, or place money in a long-term investment.

If the money is kept in a joint account or used to purchase property under both spouses’ names, you will only be able to exclude your half of the amount, as there is a presumption that the money is jointly owned as per section 14 of the Family Law Act.

• Using gifts/inheritance to purchase property

It is not necessary to keep the gift/inheritance in the same form it was received in.

Aside from a matrimonial home, you can use the money to purchase any property and still have the item excluded so long as it can be traced back. However, tracing the original inheritance/gift is not always clear when items are purchased in combination with other funds.

For instance, if you receive $60,000 and you use it to purchase something worth $80,000 (pay ¾ of the item with the gift money), and the value of the item increases to $90,000 at the date of separation, then you may exclude ¾ of the current value of $90,000.

• Value

As a rule, the value of the gift/inheritance to be excluded will be calculated as the amount at the date of separation, whether the value has increased or decreased since the gift/inheritance has been obtained.

Furthermore, income from a gift/inheritance will not be excluded unless the donor/testator has specifically indicated in writing that income generated from the gift is to be included as part of the gift. Otherwise, rental income from rental property, money made through interest, and stock dividends must be included in the date of separation assets.

• Pre-Marital Gifts and Inheritance Money

For gifts acquired prior to marriage that have gained value during the marriage, the acquired value must be included in your net family property. Similar to other pre-marital assets, the pre-marriage value of a gift/inheritance will then be deducted from your net family property.

*The content on this website is not legal advice, you should always obtain advice from a lawyer with the particulars of your case.

Division of property upon separation: The Rule for Legally Married Couples

The rule for the division of property upon separation is dependent upon the status of the separating couple. For legally married couples, the law that governs the division of property upon separation is the Family Law Act. Each spouse is entitled to share equally in any increase in value of the other spouses’ property that has occurred during marriage. This typically means that one spouse must pay the other spouse what is commonly known as an “equalization payment.”

To determine the division of property upon separation, spouses first need to determine what qualifies as property. Property includes all assets such as: home, car, personal items, household items, bank accounts, life insurance policies, RRSPs and any businesses owned (even if incorporated).

Importance of Financial Disclosure Upon Separation

To calculate the equalization payment, each spouse must properly disclose their relevant financial records. This means that each spouse must disclose the value of all assets and liabilities at both the date of separation and the date of marriage, with proof of these values. As such, to determine the spouse responsible for making the equalization payment and the correct amount, it is vital that each spouse properly disclose complete and accurate financial information to resolve the matter. Full and accurate financial disclosure is necessary and will help avoid unnecessary complications that arise from inaccurate disclosure or non-disclosure.

Calculation of the Equalization Payment

In order to determine the amount of the equalization payment, each spouse must calculate their net family property (“NFP”) at the time of separation.

To calculate the NFP, each spouse must add up the value of their property (minus any debts) as of the date of separation and then subtract the value of his or her property (minus any debts) as of the date of marriage, subject to any other exclusion. Once the NFP value is calculated for each spouse, the spouse that has the higher NFP must pay the other spouse 50% of the difference between the two NFP values. For instance, if spouse A has a NFP value of $100,000 and spouse B has a NFP value of $50,000, then spouse A must make an equalization payment of $25,000 to spouse B (50% X ($100,000 – $50,000)).

Special Rule for Matrimonial Homes: Calculation of NFP

A matrimonial home is the home where the married couple was ordinarily residing at the time of separation. There can be multiple matrimonial homes; for instance, a cottage could be considered a matrimonial home if the parties ordinarily reside there. When calculating a spouse’s NFP, the entire value of the matrimonial home is always included in the calculation of the NFP, not just the increase in value of the matrimonial home throughout the marriage.

Special Rule for Gifts and Inheritance: Calculation of NFP

Typically, a gift or inheritance is excluded from the calculation of NFP. However, if the gift or inheritance is used to buy, help pay, or make improvements to a matrimonial home, it will be included in the calculation of the NFP. Caution should be taken to ensure that the gift or inheritance can be traced at the date of separation. For example, if a spouse receives a gift of $50,000 and uses this as cash on groceries, the spouse shall not benefit from the $50,000 exclusion.

Special Rule for Canada Pension Plan credits: Calculation of NFP

All Canada Pension Plan credits are excluded from the calculation of NFP because they are treated separately in determining the division of property upon separation. See below for more details.

Debts

For both married couples and common-law couples, each party is typically responsible for paying their own debts, unless there is an agreement between the parties that states otherwise.

Private Pensions

Private pensions fall under the heading of property and are subject to division upon separation. There have been some important changes to legislation, effective January 1, 2012, which now makes it easier for married spouses to value and divide private pension plans following separation. If a married couple has separated on or after January 1, 2012 or prior to this date but have not yet resolved their property issues by that time, then the new rules apply.

Canada Pension Plan Credits

Most people assume that their Canada Pension Plan (CPP) is not divisible upon separation; this is incorrect. If a married or common-law couple has lived together for at least one year (note that common-law is usually three years but for CPP credits, it is 12 months) the CPP pension credits each party has earned while they were together can be added up and then divided evenly between each party upon separation. This division of CPP credits has been referred to as a credit split or a “Division of Unadjusted Pensionable Earnings” (DUPE).

Time Limits for DUPE Application: Legally Married Spouses

Upon separation of legally married spouses, there is no time limit to apply for a DUPE. However, if the spouse died following separation without obtaining a divorce, the time limit is 3 years after the spouse’s death.

Time Limits for DUPE Application: Common-Law Partners

Upon separation of common-law partners, the parties must apply for a DUPE within 4 years after separation unless there is an agreement in writing between the parties to ignore this time limit. In addition, common-law spouses must wait at least one year following separation to apply, unless the common-law partner has died in that first year following separation.

AeroPlan Miles and Loyalty Points Program

The accumulation of AeroPlan miles or loyalty points can add up to some value and their inclusion or exclusion from matrimonial property is dependent upon whether the points were accumulated as part of personal, family-related spending or as part of business spending or work-related activities. If the points are accumulated due to personal, family-spending then these points will form part of the matrimonial property that is subject to division upon separation. However, if the points were accumulated solely due to business or work-related activities, then the points will be exempt from matrimonial property and not subject to division upon separation.

The Division of Property: Common-Law Couples

The rules that govern the division of property for legally married couples, as found in the Family Law Act, do not apply to common-law spouses. Thus, there is no automatic right to divide property between common-law spouses upon separation, as is the case for legally married couples. However, in cases of unjust enrichment, a common-law spouse can make a claim to the home owned by the other spouse. The law is complicated and common-law spouses should seek legal advice with respect to this.

 by Christina Sappone, law student, and Roxana Soica, lawyer, Soica Law Professional Corporation

**The above is not legal advice and subject to exceptions and other considerations based on the specific facts of your case.

Most clients think that having a will is only for the purpose of ensuring that, upon death, their assets go to the intended beneficiaries. However, turning your mind to having a will is also an opportunity to plan for your assets during lifetime and to consider taxation issues. One important consideration is that of taxation of capital assets upon death.

According to the Income Tax Act, a deceased person is deemed to have disposed of their capital property as at the date of death. The result is that this triggers significant capital gains taxes immediately upon the date of death. The surviving spouse might have to sell property in order to afford the tax liability of the estate. 

The Income Tax Act allows the use of a spousal trust to defer the income tax consequences of the deemed disposition of capital property until the death of the surviving spouse or until disposing of the capital property. This spousal trust can actually be drafted to continue to exist for up to three years from the date of the surviving spouse. This would allow for losses after the spouse’s death to reduce any capital gains payable as per the deemed disposition.

The spousal trust is one of many planning techniques to reduce or defer estate taxes. 

*The above is drafted by Soica Law Professional Corporation and not intended as legal advice.