Can you Afford a Divorce in Toronto?


If you’re thinking of getting a divorce in Toronto, you may be surprised to learn just how expensive it is to hire a Toronto divorce lawyer these days. The average cost to retain one is anywhere from $5,000 – $10,000. After that, going rates range from $250 to $600 per hour. If your divorce is contested, it can cost more than $50,000 in legal feels to handle your case- before it goes to trial. But despite the high price tag, there were an estimated 9000 divorces in Toronto in 2001 (the last year for which statistics are available).

The financial shock is only part of the trauma people experience when going through a divorce,” said Ken Maynard, a Toronto divorce mediator. “The emotional trauma is just as devastating because of the gut-wrenching decisions that have to be made such as: who will provide how much financial support to whom; what to do with any property you own; and how will one couple’s income suddenly fund two separate lives?

Maynard, a senior Family Mediator in Toronto, has successfully guided countless people through the divorce process over the last decade. He created the Naked Divorce File at MyOntariodDivorce.com to prove that it is possible to negotiate your own Separation Agreement or successfully obtain a divorce without hiring an expensive divorce lawyer.

Whether you can afford to hire a lawyer or choose to take the do-it-yourself route, Maynard advises people to do their homework first to learn more about the process and the journey they are about to embark upon. A visit to MyOntarioDivorce.com is a good place to start. Below, Maynard provides some of the information that can be found on his website and dispels the most common divorce myths he encounters in his practice.

Divorce Definitions

Below are some of the terms you will need to know if you’re filing for divorce in the Greater Toronto Area:

Application: The document used to commence a court proceeding.

There are three types of Applications:

1) General Application for Divorce- used when the spouses have unsettled issues and/or one of the spouses is contesting the divorce;

2) Simple Application- used when all that is sought is a divorce; and

3) Joint Application- used when both spouses are seeking a divorce and all issues have been resolved amicably.

Breakdown of the Marriage: This is the sole ground for obtaining a divorce in Canada. A “breakdown of the marriage” can be established by one of three ways: 1) through evidence that one of the spouses committed adultery, which is not forgiven by the other spouse; 2) evidence that one of the spouses subjected the other spouse to physical or mental cruelty to the extent that it became unbearable for the victimized spouse to continue living with the abuser; or 3) if the spouses lived separate and apart for a period of at least one full calendar year with the understanding that their marriage is over.

Child Support: An amount of money paid by one parent to the other parent on either a monthly basis or as a lump sum payment. Child support is payable until a child is no longer defined as a “child of the marriage” in accordance with the Divorce Act or “dependent” as defined by the Family Law Act. The amount of child support is determined by the Child Support Guidelines and is based on the income of the parent paying the support and the number of children for whom support is payable.

Contested Divorce: If either the husband or the wife disputes the ground for divorce set out in the Application, or if the spouses are unable to agree on one or more terms of the divorce, such as the parenting arrangements for the children, child support, or spousal support, the divorce will be considered contested.

Separation Agreement: A legal document signed by married or common law spouses, or persons that have a child together, which details the settlement and arrangements they have reached with respect to the issues that arose following the breakdown of their relationship. It can deal with property, financial support, custody and access.

Simple (Uncontested) Divorce: If neither married spouse disputes the ground for divorce, and if they have been able to reach an agreement with respect to all of the issues arising from the breakdown of their marriage, for example child support, custody and access, one or both of the spouses can make an Application for a divorce, which Application can include a request for an Order that reflects the agreement the parties have reached. In most cases, the spouses will not need to appear in court to obtain the Divorce Order.

Spousal Support: An Order that one of the spouses must pay to the other spouse, usually on a monthly basis, a specified amount of money, either for a set period of time or indefinitely.

Debunking Divorce: Myth vs. Reality

Myth: Paying child support entitles a parent to access with the children.

Truth: Child support is ordered to distribute the costs of child care between the parents. If a Canadian divorce law court orders you to pay child support, that doesn’t mean that the court will also grant you access to the children. On the other hand, if you’re not ordered to pay child support in Canada, the other parent can’t deny you access to the children for that reason.

Myth: If both spouses are employed outside of the home, the courts won’t order spousal support.

Truth: It’s true that courts are more likely to order spousal support in cases where one spouse didn’t work outside of the home. But spousal support is also regularly awarded even when both spouses had jobs. Some factors that a court is likely to consider include: how great the difference is between the income of the spouses; and how long the relationship lasted.

Myth: If I hire a good divorce lawyer, I will get everything I want from my divorce.

Truth: You shouldn’t expect to get everything you ask for when going through a separation or divorce. Of course, you can refuse to compromise on anything, but this approach tends to backfire and only makes the process of divorce that much more strenuous.

Myth: I will be happy as soon as my divorce is final.

Truth: Many separated or divorced people seem to be deferring their happiness until they achieve certain goals. We tell ourselves; “I’ll be happy when my divorce is finalized,” “I’ll be happy when I get custody of the kids,” “I’ll be happy when I finally meet that one person in the world who’s right for me.”

Dr. Barbara De Angelis, a relationship therapist, calls this behaviour the “I’ll be happy when syndrome”; we sabotage our happiness by postponing it until some outside event or occurrence changes our lives forever. The truth, however, is that happiness is not an acquisition, it’s a skill. It’s not about what we get or experience, it’s about the way we live our lives every day.

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 is a summary of the rules regarding obtaining a divorce.

What are the Grounds for 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 grounds of divorce must be the breakdown of the marriage based upon one year of separation
  • The spouse receiving the application for divorce was properly served

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.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com

 

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