According to Canadian Law, married couples can obtain a divorce after living apart for one year. In some situations, a divorce can be obtained before the one year separation time is up, however, couples usually wait for the one year to expire.
While obtaining a divorce can be straightforward, a court order is always required. Sometimes, people agree to issues such as custody and support on their own and only apply to the court to obtain a divorce. Those cases, called uncontested divorces, take a relatively short amount of time and cost relatively little. However, it is important to be fully aware of the impact a divorce can have on your rights.
It is advisable to obtain legal advice from a lawyer before obtaining a divorce.
Both married couples and “common law” spouses (people who have lived together for three years or have a child together) are separated when the couple stop acting like a couple. That usually involves a physical separation but parties can be considered separated while continuing to live in the same house.
While there is no such thing as a “legal separation”, a number of legal issues arise on separation, which should be addressed. Those issues can include such things as child custody, child access, child and spousal support and the division of property. Often, a couple is able to negotiate or mediate an agreement, which is then crafted into a “separation agreement”. In other cases, people must rely on the court process to provide a resolution.
Spousal support, also known as alimony, is a particularly complex area of law. The purpose of support is to recognize the disadvantage one spouse may have suffered as a result of the relationship or its breakdown. To determine whether support is owed and the amount and duration of support, many factors must be considered. Some of those factors are: the nature of the relationship, the roles which the parties adopted during the relationship, the current income of each party and the ability of each party to earn income. As long as spousal support is paid pursuant to a court order or written agreement, it is generally tax deductible for the person paying and included as taxable income for the person receiving the spousal support.
With the introduction of the Child Support Guidelines in 1997, the law on child support became relatively straightforward. In most cases, a table based purely on the income of the support payer determines the appropriate amount of child support. In addition to that basic amount, a support payer may also be required to contribute to special expenses such as day care, extracurricular activities, health care expenses, and school tuition. The amount of these other contributions is determined by considering both parties’ income and the tax implications, if any, of the particular expense. Child support is generally not tax deductible for the person paying and not included in the taxable income of the person who receives it.
In Ontario, married couples are required to divide most of the assets and debts accumulated during marriage. To divide property properly, both parties must have good information about the value of their assets and debts on both the date of marriage and at separation. Common law spouses are not required to divide assets accumulated during their relationship. They may however, have a claim to property to which they have contributed through their own work or financial contribution.