Divorce in Ontario

Why do I need a divorce?

To legally end your marriage in Ontario you must get a divorce. It’s not enough to just be separated and live apart, as this does not legally end your marriage.

What does this mean?gailcircleleft

“Separated” means you’re “still married” …just not living together as a couple. “Legally divorced by decree” means that you are no longer married. You must be legally divorced before you can marry again.

Do I need to get a divorce if we are Common Law?

If you are a Common Law couple (living together), it doesn’t matter how long you have lived together, in Ontario you are not considered legally “married.”

What does this mean?gailcircleleft

This means that you do not need to get divorced from your common law spouse BUT you may still require a Separation Agreement to deal with issues pertaining to children, support and assets/debts.

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How do I get divorced in Ontario?

Separating and Divorce are two separate stages. First, while separating, you and your spouse are dealing with all of the issues, such as children, custody, taxes, support, homes, assets, pensions and debts etc. These issues are dealt with in a Separation Agreement.

Once a Separation Agreement has been reached and a year of living separately has passed, you can go through the process of applying to the Ontario Courts for a Divorce Decree. Beware that the courts may reject your application for divorce if child support and other arrangements that should be dealt with in a Separation Agreement have not been prepared legally and properly.

What does this mean?gailcircleleft

To divorce in Ontario can be very complicated, regardless of how amicable you are. Wisdom dictates: get professional help to walk through this process. The Common Sense Divorce will help you reach an agreement with your spouse about the issues related to your divorce so you do not have to take those issues to court.

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How Much Does Divorce Cost?

The answer: how much do you want to invest in order to divorce properly? Divorce is a contract that will follow you around for the rest of your life so it’s important to look at it as an investment in your future.

There tends to be two extremes of people. Those that want to spend NOTHING on their Separation Agreement and those that seem to be willing to give away every penny they have and duke it out in litigation and family court. There are, of course, those in “the middle.” We’ll get to those folks later.

Let’s be bluntgailcircleleft

Those “cheapie agreements” plastered all over the internet are not worth the paper they are printed on. Think about your wedding. How much did you spend on that day? It’s shocking but some people will have paid more for their wedding dress than they will spend to properly protect themselves, their children and their future – simply by getting their divorce done with a form they found on the internet. What utter nonsense!

At the other extreme are people “lawyer up” and prepare to come out with their fists up.

Let’s be bluntgailcircleleft

If you plan to take your spouse to court, you are going to spend a minimum of $10,000 just to get in the door! The traditional litigation process is incredibly expensive, time-consuming and emotionally draining.

There IS a balanced option between these two extremes: a Common Sense Divorce.

At The Common Sense Divorce, we provide realistic, honest and forthcoming information about prices and costs. We save our clients money (and time) by helping them to complete the separation process the proper way… right from the beginning.

Our collaborative team of professionals will lead you (and your spouse) through the separation process quickly and efficiently, helping you to transition into your new life while keeping as much of your hard-earned money out of the court system. Our Negotiated Settlement Solution will help you avoid the expensive mistakes and emotional landmines that can escalate your file into a costly, bitter, nasty divorce.

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Do I have to wait a full year to apply for a divorce?

Yes. You will not be granted a divorce until the year of separation is complete. You will want to use this year to prepare your Separation Agreement.

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Do I need to use a Lawyer or professionals to get Divorced?

This is similar to asking, “Do I need to go to a Doctor if I break my arm? No you don’t but wisdom would dictate that you do. In the same way, you are not required to use a lawyer or other professionals to Divorce in Ontario. Still, wisdom would dictate that solid legal direction be involved in your process.

What does this mean?gailcircleleft

The Common Sense Divorce will lead you through the Divorce Process the proper way right from the beginning. Our Negotiated Settlement Solution brings together lawyers, mediators and financial professionals that will lead you through the process smoothly. The old saying applies, “an ounce of prevention is worth a pound of cure.”

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Can’t we just make our own Separation Agreement?

You might be tempted to take family law matters into your own hands because you’re trying to save money. Maybe you don’t think your ‘case’ is particularly complicated. Perhaps you have a basic mistrust of lawyers and the legal system’s penchant for making everything more complicated than it need be. Or maybe you just don’t want to spend the money!

Hey, I hear what you’re saying. But I’m saying you don’t know what you don’t know. And if you don’t know what you’re doing – and if you’re not a family lawyer – there is a VERY good chance you will miss some important things that will screw with you later and cost you even more money down the road.

They have a name for those homemade Agreements or those form documents you buy off the internet. They call them “Kitchen Table Agreements” because they’re fundamentally flawed Agreements that are often signed in the kitchen over a cup of coffee. Lawyers actually love them. But not because they work but because they know that the untangling of the mess Kitchen Table Agreements make will be profitable for Lawyers in the long run. Very profitable.

What does this mean?gailcircleleft

Separation Agreements are treated seriously by the court. They are always reviewed by the court and any terms that are clearly unreasonable will not be accepted. Kitchen Table and other half-baked agreements regularly get nullified because they were not prepared properly because proper financial disclosure wasn’t done or because one partner tried to pull the wool over the other’s eyes. Courts regularly boot these agreements to the curb, leaving them not worth the paper they were written on. And because the courts got involved, those cheap Kitchen Table agreements end up becoming very, very expensive.

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If I buy out our home from my partner do I have to pay Land Transfer Tax again?

YES. In essence, you are buying your spouse’s half of the house and you will have to pay the Land Transfer Tax on that purchase. To give you an example of how much this is… Let’s say your Toronto home is worth $700,000 and you are buying out your spouse for $350,000. The Ontario provincial Land Transfer Tax is $3725 and the Toronto Land Transfer Tax on this amount is $3225. The total Land Transfer Tax you will pay on this amount is $6950.

BUT there is an exception. Regulation 696 of the Ontario Land Transfer Tax Act allows for an exemption on this Tax IF “the transfer is in compliance with a written agreement of separation, pursuant to which the parties have agreed to live separate and apart.”

What does this really mean?gailcircleleft

It means that a properly prepared Separation Agreement will likely cost you much less than the Land Transfer Tax.

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Do I need a reason to get a divorce?

Nope. The only legal reason you need for a divorce is that you conclude that the marriage has broken down.

What does this mean?gailcircleleft

Ontario law accepts that there has been a breakdown of your marriage if you can prove that you and your spouse have lived separate lives and apart for at least one year.

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Can we be separated if we are still living under the same roof?

Yes. Fundamentally what makes you “separated” is that you and your spouse have consciously agreed to separate and have “uncoupled.” In some circumstances, spouses can be considered separated yet apart even though they still live under the same roof.

What does this mean?gailcircleleft

This is possible as long as they are blatantly no longer living as a couple and both parties understand this to be true. If this is your situation, it is up to you to prove it.

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Can there be a divorce if only one of us wants it?

Yes. It is not necessary for both of you to want to end the marriage. If after living separate for at least one year, the marriage can be considered as broken down and one of the spouses can apply for the divorce.

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Who can apply for the divorce in Ontario?

Either of you can apply, or you can make a joint application.

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If we try to get back together, but it does not work out, do I have to wait for another year?

Maybe. It’s a “No” as long as you don’t get back together for a period of more than 90 days, or for several periods that add up to more than 90 days.

Can I get a divorce if I am not a Canadian citizen?

Yes. You do not have to be a Canadian citizen to get a divorce in Canada. It also does not matter if your marriage took place in another country. You can apply for a divorce in Ontario as long as you or your spouse has been residing here for at least one year.

What does this mean?gailcircleleft

It means you might have to prove that your spouse’s home address or your home address is in Ontario.

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Will I have to pay Taxes because of my Divorce?

Maybe. One of the biggest reasons you want to a legal and properly created Separation Agreement is for Tax reasons. Often as part of a Separation Agreement, various property, money and asset transfers are made. Taxes and which spouse is going to have to pay them will be a huge part of how equalization payments or support payments are made.

What does this mean?gailcircleleft

Financial and legal Professionals understand Canada Revenue Agency (CRA) and the special tax rules that allow Real Estate, RRSPs, investments and other assets to be transferred between spouses as part of a divorce settlement so that there are no or minimal tax consequences.

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Are there time limits?

No matter how long you and your spouse have been separated, there are no time limits for applying for a divorce in Ontario. There are also no time limits for asking for child or spousal support, however, spousal support is partly based on need. There are time limits if you and your spouse have to ask the court to decide how to divide up the property you shared while you were married.

What does this mean?gailcircleleft

If you wait too long before settling your Separation Agreement and its terms of support etc, and then try to approach it later, a judge may decide that the fact that you waited shows that you do not need it. In the same way, if a child has been living primarily with one spouse for any length of time, a judge may be reluctant to make the child move. The motive of the story? Have a legal and binding Separation Agreement prepared within the first year of separation.

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Do we split our Canada Pension Plan (CPP) credits?

YES When you divorce, your lawyer and financial professional will help you apply to CPP for a “division of unadjusted pensionable earnings” (DUPE). This is a division of the pension credits that the two of you earned while you were together.

What does this mean?gailcircleleft

The CPP credits that you and your spouse earned for the time you were married are added together and then split evenly between you. If your spouse had more credits than you, this might help you qualify for a pension, or increase the amount of your pension if you already have one. Your Common Sense Divorce Team will help you with this.

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