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At Shaikh Law Firm our Family Lawyers Toronto understands our client’s feelings and have an unwavering commitment to providing best Family Law, Divorce Law & Separation Agreement Ontario services. We recognized the delicate nature of family and seek to ensure completion of tasks at hand on a priority basis. A divorce, separation or common-law break-up is always difficult and can bring emotional, financial and personal challenges. We understand that you would need the best Divorce Lawyer on your side that you can trust to get the financial and custody outcomes you deserve.
Our commitment to providing our clients with top Family Law and Divorce Law Legal representation is reflected in our success and long-established relationships with our clients.
We leave no stone unturned, we are always willing to consider various approaches to resolving family issues through negotiation, collaboration, mediation, court, or a combination of these.
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Learn More about What is a Separation Agreement, How to write a Separation Agreement ? or What terms should a Separation Agreement contain?, Do you need Independent Legal Advice for a Separation Agreement, What a Separation Agreement Lawyer would do for you, Do it yourself Separation Agreement with a Template, find out Separation Agreement without a Lawyer benefit and disadvantages.
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At Shaikh law we are dedicated to providing highest quality of Legal Service in Divorce & Family law matters. We provide skillful representation you need during the difficult time of your Divorce. The outcome of any Divorce & family law matter can impact you and your children for years into the future. We are diligent in our efforts to resolve every case in a way that provides the most benefit to our clients.
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FAQ
What is Divorce in Canada
Divorce is the termination of the marriage by a court of Law based on the grounds of Divorce under Canadian Laws. A Divorce Order is the only legal way to terminate marriage, mere separation or entering into a Separation Agreement would not automatically Divorce married couples.
What are grounds for Divorce
There are three grounds for Divorce in Canada and if any one of them is applicable then the Court of Law would grant Divorce.
- Separation for more than one year (Most common ground for Divorce)
- Adultery
- Cruelty or Torture.
Can Divorce be refused
Yes, Divorce can be refused under the following circumstances;
- No proper arrangement for Child Support has been made between the parties;
- Parties return to live together after separation for a consecutive 90 days. Then the Separation of one year will not be counted.
- Where one of the spouses trapped the other spouse to commit adultery to gain a ground for Divorce and in turn division of property.
When Divorce becomes Final
A Divorce Order would become final after 31 days and then a Divorce Certificate can be issued to the parties.
What is the Difference between Contested And Uncontested Divorce
A Divorce is Uncontested if the parties are in agreement that they have been separated for over a year and agree to live separate and apart. Uncontested Divorce in Ontario can be filed as Joint Uncontested Divorce which means that the parties will both Jointly sign the Application for Divorce, whereas a Simple Uncontested Divorce is filed when only one party files for an Application for Divorce and serves the documents of Divorce to the other party.
A contested Divorce is where another relief such as Child Support and custody is disputed between parties. The Court would not grant Divorce unless adequate provisions or steps have been taken to secure Table amount of Child Support, therefore it is usually referred to as a Contested Divorce.
Is Foreign Divorce Recognized in Canada
Yes, Foreign Divorce is Recognized in Canada as a Valid Divorce as long as the spouse who obtained had “real and substantial connection” with that country. Therefore an immigrant to Canada who currently has a Permanent Residence in Canada could use his overseas Divorce papers to validate a Divorce in Canada. The requirements to validate a foreign Divorce is
- The Divorce must be legally valid in the Foreign Country and
- One or both spouses lived in that country for a full year immediately before applying for the Divorce.
The Applicant would require an opinion Letter from a Lawyer to validate a Foreign Divorce Order. This is usually done by the Lawyer who would seek to verify if the Foreign Country has legally Issued a Divorce Order or not.
Marriage or Common Law Relationship, what is the difference
A person is considered legally married, if they can provide a certificate of marriage and will be called husband and wife. Whereas if two people who have been living together in a marriage like relationship or in other words have co-habited and may have child, then such persons shall be considered to be in a common-law partners. If the couple have not registered their relationship as common-law partners then the criteria to establish their common law status varies from province to province since there is no Federal legislation unlike the Divorce Act for married couple.
Requirements to become Common law partner.
| Province/Territory | Requirements |
| Alberta | Cohabit for 3 years in a marriage like relationship or have a child or have a common law partnership agreement registered. The common law partner in Alberta is referred as Adult Interdependent partner. |
| British Columbia | Cohabit for 2 years in a marriage-like relationship. |
| Manitoba | Cohabit for 3 years or have a child or have registered the common law relationship. |
| New Brunswick | Cohabit for 3 years or have a child or have registered the common law relationship. In a 3 years Cohabitation period one person should be financially dependent for support. |
| Newfoundland | Cohabit for 1 year and have a child together. |
| Nova Scotia | Cohabit for 2 years. |
| Ontario | Cohabit for 3 years, or have a child and in a marriage like relationship. |
| P.E.I and N.W.T | Cohabit for 2 years, or have a child and in a marriage like relationship. |
| Quebec | No prescribed period or time to establish a common law relationship. In Quebec such marriage like relationships are described as “de facto” partners. |
| Saskatchewan | Cohabit for 2 years. |
| Yukon | No prescribed period or time to establish a common law relationship, as long as the partners were living together in a marriage like relationship. |
Rights of Married Couples & Common Law Partners
Whether married or common law partner, the law sets out their rights and obligations to each other when parties separate, for example
- Financial Support.
- Child Support
- Spousal Support
- Financial Information
- Use of Family Property and Family Home
- Division of Family Property and Family Home
- Pension
Marriage Agreement and Prenuptial Agreement.
If the parties to a marriage enter into an agreement prior to marriage then in such circumstances it is referred as a prenuptial agreement. On the other hand if the parties are already married and they wish to enter into an agreement then it is usually referred as marriage agreement or in some provinces it is also referred as domestic contract. Such marriage agreement and prenuptial agreements are prepared to set out what property and or assets each party is bring into the marriage and who will be entitled to what type of property in the event of separation or divorce. These agreements will also cover issues relating to child of marriage.
It is important to note that if the marriage agreement or prenuptial agreement or separation agreement is contrary to the Divorce Act then such agreement or its terms contrary to the Divorce Act will be considered as null and void or in other words unenforceable. Therefore it is highly recommended that you should consult a lawyer before entering into a marriage contract or a prenuptial agreement. The courts will be willing to consider the intention of the parties and may uphold some of the terms of agreement, however it is strongly recommended to get in touch with a lawyer.
Cohabitation Agreement
A cohabitation agreement on the other hand is equivalent of a prenuptial agreement but for common law relationships. In essence such cohabitation agreements are prepared to set out what property and or assets each party is bring into the common law relationship and who will be entitled to what type of property in the event of separation. The cohabitation agreement will also cover issues relating to child of the common law relationship. It sets out the rights and obligations of each party in the relationship when the relationship ends, either through separation or death.
Separation Agreement
There is no legislation compelling couples to enter into a separation agreement. However it is recommended to have a written separation agreement to set out the property issues as well as child custody and support issues in the separation agreement.
Separation agreements are also important in respect of child custody arrangements because without a court order or a separation agreement a non-custodial parent may come back, pick up the child and walk away without any repercussions.
Separation Agreement will cover;
- Custody of children.
- Access and child support.
- Division of Property, assets and liabilities.
- Spousal Support.
- Guardian of child.
It is possible to have a verbal separation agreement, however it is not recommended as it is extremely difficult to prove the terms of the agreement, especially in the event where one of the parties is not candid.
Separation Agreement be set aside or changed.
A separation agreement can be challenged in court and it can be set-aside by the court or varied or changed by the court. The court will review the separation agreement to ensure that both parties have had legal advice and received full and accurate financial information from each side as well as the legal requirements of contract law are satisfied. In other words the Separation agreement is also subject to the principles of contract law and therefore if one of the following elements were present then the Separation agreement will be set- aside or varied by the court.
- Duress: Where one spouses pressures the other to sign the contract.
- Misrepresentation: Where one spouse does not provide full or accurate information such as financial information .
- Unconscionability: Where the terms of the agreement are unjust and unfair in the eyes of the court.
- Undue influence: Where one of the spouses influenced the other spouse to sign the agreement on account of their better position such as an offer to sign for sole custody in exchange for deleting all arrears of child support or transfer of property.
The courts will also be willing to vary the agreement if in the event the courts finds that it is in the best interest of the child to have the terms of the agreement varied. Please consult your lawyer for more detail information to vary a separation agreement or a child custody order on the grounds of best interest of child.
Separation Agreement used as proof of Divorce
No.
Separation Agreement is a legally binding contract between the parties but the couple will still be considered as legally married until a court order is granted.
Can I Divorce Sponsored Spouse
Yes
However, if you have sponsored your spouse to come to Canada, you are responsible to for their basic needs for a period of three years as per the undertaking you would have executed. It is irrelevant if you have divorced your spouse under the immigration laws.
What is a Divorce
Divorce (or the dissolution of marriage) is the final termination of a marital union by way of a court order, canceling the legal duties and responsibilities of marriage and dissolving the bonds of matrimony between the parties. A court order of divorce granted under the federal Divorce Act is the only way a legally married couple can end their marriage. Therefore a couple can be living separate and apart for many years without a Court Order but still be regarded as legally married. A couple can only remarry upon obtaining a Court Order for Divorce only.
In other words a divorce is a legal action between married people to terminate their marriage relationship, by way of a Court Order. It can be referred to as dissolution of marriage and is basically, the legal action that ends the marriage before the death of either spouse.
Where can I apply for Divorce
In a province where either one of the spouse has been a resident for at least one year prior the commencement of divorce.
As per section 3(1) of the Divorce Act ” a court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceedings”
Divorce Process in Canada
Divorce in Canada is governed under Federal Divorce Act wherein Divorce is described as breakdown in marriage in three situation;
- both parties have been living separate and apart for more than one year, Read More
- Read More
- Read More
A “divorce proceeding” or « action en divorce » under the Divorce Act is defined as “a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order”.
A Divorce process in Canada is commenced by filing Divorce proceeding in your Province before the Court of Law. In your Divorce Documents you will be required to file grounds of Divorce in your court documents. For detail information on how to prepare your Divorce papers please contact us
Grounds for Divorce
The Divorce Act requires that there should be a break down of marriage, which could be established under one of the following three situations:
- Living separate and apart for more than one year.
- Adultery
- Cruelty
Section 8(2) of Divorce Act – Breakdown of marriage
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Separation for more than one year or “no fault” Divorce
The most common and simplest ground for divorce is living separate and apart for more than one year immediately before marriage, which is also called “no faulty” Divorce. It is possible to live under the same roof as long as both spouses lived a completely separate lives, albeit it is easier to prove separation if spouses have been living separate under different address but the courts have allowed Divorce Judgment where spouses have been living under the same roof but it was established that they were not living as husband and wife.
Reconciliation is possible during the separation period of one year. If in the event the married couple move back in together in an attempted to settle their difference and try to make their marriage work then the court under the Divorce Act will only recognize a break in one year of separation if the married couple lived together for more than 90 days or approximately three 3 months.
In other words the couple could still have sexual relationship through the one year of separation as long as they have not lived together for more than 90 days.
You can start the divorce process in Canada before one year of separation has expired. In other words you can file you Divorce documents in court for a Divorce Judgment before one year has expired but the Divorce Judgment will be granted upon the expiry of one year
Divorce Act Section 8 (3) Calculation of period of separation
(3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
Adultery or Cruelty as a ground for Divorce
Seeking Divorce under section 8(2)b or in other words on the grounds of Adultery and/ or Cruelty is difficult on the premises that the spouse seeking to claim Adultery and /or Cruelty has to prove that either the spouse committed Adultery or has treated the other spouse with physical and mental cruelty that has made it impossible to live together and hence there was a marriage break down.
Unless you have cogent, convincing and sufficient evidence to prove such grounds, it is not recommend to proceed, especially if you are filing Divorce Documents in court on your own accord since theses grounds of Divorce are more complicated to prove to the satisfaction of the Judge.
You can start the divorce process in Canada before one year of separation has expired. In other words you can file you Divorce documents in court for a Divorce Judgment before one year has expired but the Divorce Judgment will be granted upon the expiry of one year
Divorce Refused on what grounds
The Court under the Divorce Act can refuse a Divorce on the following grounds;
- No arrangement for child support.
- Condonation.
- Connivance.
- Collusion
No child Support
At the time of hearing and reviewing your Divorce Documents the Court of law will inquire if you have child from the marriage or relationship and if so what arrangements have been made to pay child support. The Federal government has legislated the amount of child support that must be paid in accordance with a child support table by a non – custodian parent’s income. Both parties cannot agree that no child support is to be paid and still wish to obtain Divorce Judgment, the court will refuse to grant a Divorce judgment in such circumstance. Read more on child support.
Condonation
Condonation in essence means an act of forgiveness and therefore it means that during the one year of separation the spouses returned to live together or have continued to live despite the fact that the spouse learned about Adultery or was subjected to cruelty. In such situations the court will refuse to grant divorce.
Connivance
As oppose to Condonation, the ground connivance is used by the courts where one of the spouses has somehow encouraged the other spouse to commit adultery or omitted to object to adultery. The court will only grant divorce if the court is satisfied that there was no active encouragement.
Effective Date of Divorce
As per section 12 of the Divorce Act a divorce is to become effective on the 31st day after the Divorce Order is granted.
Contested and Uncontested Divorce Process
The difference between contested and uncontested divorce proceedings in Canada is where the both parties agree to divorce documents they file uncontested divorce proceedings, whereas contested divorce proceedings is where the responding the spouses disagrees with the relief sought from the court such as child support, child custody, challenging the grounds of adultery or cruelty or division of property etc.
Foreign Divorce in Canada
Foreign Divorce in Canada is recognized as a valid Divorce as long as the spouse who obtained the Divorce had a “real and Substantial connection” with the Country granting Divorce. As per the Divorce Act the person getting the foreign divorce should be “ordinary resident” of that country, which in essence means that the foreign country should be his or her place of usual residence for at least one year prior to starting the divorce proceedings. Under section 22(1) and (3) of the Divorce Act a divorce from another country is recognized if
- the divorce was valid under the laws of that country; and
- one or both spouses lived in that country for a full year immediately before applying for the divorce
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