This Website is Not Legal Advice
Please note that nothing presented on this website is legal advice. Every situation and every client's legal matter is different and this website is merely meant to provide information to the public. Nor does this website create a lawyer-client relationship - such a relationship has not been formed until a formal written retainer has been made. If you want legal advice or representation, Please contact our office.
Family Law Q&A
Q 1. What are the prerequisites for a divorce?
A: Spouses can apply for divorce when one of the following three circumstances has occurred: the other spouse has committed adultery, the other spouse has committed cruelty (physically or psychologically) or the spouses have separated. If separation is used as the ground to obtain a divorce, the spouses need to have been separated for at least one year before a court will grant a divorce order.
Q 2. Previously, I lived with my spouse outside of Ontario. We recently relocated to Ontario and want a divorce. Can we apply to an Ontario court?
A: An Ontario court 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 proceeding. A court in a province has jurisdiction to hear and determine a corollary relief proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding or both former spouses accept the jurisdiction of the court.
However, an Ontario court does not have jurisdiction to hear and determine a corollary relief proceeding under the Divorce Act following a valid divorce in a foreign jurisdiction. An Ontario court does not have jurisdiction under the Family Law Act (FLA) to hear and determine a support claim made by a former spouse. An Ontario court does have jurisdiction under the FLA to hear and determine an equalization claim following a valid divorce in a foreign jurisdiction (Okmyansky v. Okmyansky, 2007 ONCA 427; Cheng v. Liu, 2017 ONCA 104).
Q 3. How long does it take to get a divorce?
A: Generally, an uncontested divorce usually takes between 8 to 18 weeks. A contested application for divorce takes much longer. There are many factors that affect the length of time.
Q 4. Do my spouse and I need to hire family lawyers if we have reached an agreement? Can we fill in the court forms downloaded from the court's website by ourselves?
A: Before any agreement is made, each spouse should obtain independent legal advice (ILA) from a divorce lawyer who will advise the spouse on his or her family law rights and obligations. Spouses must fully understand the terms of settlement. This is necessary in order to recommend terms of settlement that are fair, practical and enforceable. Each spouse’s own divorce lawyer will represent the sole interest of the lawyer's client. The lawyer will inform that spouse of issues that he or she may not have considered and ensure that any agreement that is signed is fair, practical and enforceable.
Self-representation in Family Law court proceedings is permitted. Therefore, you are not obliged to hire a lawyer for your family law matter. However, simply filling out forms is not the equivalent of obtaining critical legal advice and professional representation. The Family Law Rules and other proceedings involve very serious and complex issues that will affect your life and the lives of your children. Laypersons who fill in blank court forms are frequently lacking sufficient knowledge and understanding with respect to his or her legal rights and obligations that will be properly determined by a judge. This would cause serious damages to you and your children.
Q 5. We are not married but have lived togerther for more than three years. Am I entitled to the same equal division of their property after separation as married spouses?
A: Unlike married spouses, common-law spouses have no statutory property rights. However, a common-law spouse may bring a claim of resulting and constructive trust against the property. The bottom line is that there must be an unjust enrichment and the remedy will be restitutionary in nature. The claim can be for a share in the property or for money, although a monetary award will be sufficient in most cases.
Q 6. Will I get custody of my children?
A: It depends on the best interests of the children. This is based on a number of factors that include the emotional ties between the children and each parent, the views and preferences of the children, the ability and willingness of each parent to provide the children with guidance and education, the plans proposed by each parent for the care and upbringing of the children and the stability of the family unit.
Q 7. Who shall pay child support? When will the support end?
A: All parents have a legal duty to support their dependent children financially. A parent can be a birth parent, a non-birth parent or an adoptive parent. They could also be a step-parent or a person who has a parent-child relationship with the child. The parent who pays child support is called the payor parent. A parent who does not have day-to-day care and control of the children usually will be responsible for paying child support. The amount is based on that parent’s income and on the special and extraordinary expenses of the children.
Child support must be paid as long as the child remains dependent. Dependent usually means until the child turns 18 and sometimes longer. A child who is 18 or older may also be considered dependent if they cannot support themselves because: they have a disability or illness or they are going to school full-time. This usually continues until the child turns 22 years old or gets one post-secondary degree or diploma. A judge may order support to continue even longer.
Q 8. What is "supervised access/parenting"?
A: Several circumstances may lead to a "supervised access/parenting". For example, a parent who experiences domestic violence or abuse or hostile will be taken into consideration. There are also instances where there has been a lengthy separation between the parent and child. Sometimes, one parent does not interact appropriately with a child, possibly causing emotional distress to the child or there may be a risk of abduction.
Supervised access centres may offer such parents an approach to address these issues while still allowing access visits. The Centres provide a safe and secure setting where access visits and exchanges of the child (pickups and dropoffs) can take place under the supervision of the Center's workers. The workers may make and maintain records regarding the parenting time and behaviour of parents.
Alternatively, the parents may both agree to allow a family member or friend to supervise the parent and child interactions.
Q 9. What is a motion?
A: A motion is a court procedure that is used to obtain certain types of orders from a judge. You can bring a motion to ask for an order to resolve an issue on a temporary basis or to change an order that has already been made.
Q 10. I feel that my former spouse may bring our child outside of Canada. What should I do?
A: Abduction of a child under the age of 14 by a parent or guardian in contravention of a custody order is a criminal offence pursuant to ss. 282–283 of the Criminal Code. The Attorney General must consent to commence proceedings under s. 283. A federal government agency assists in tracing an abducted child or abducting access parent. The Family Orders and Agreements Enforcement Unit uses federal data banks. Either a police force or a custodial parent under a court order or an agreement may seek assistance from this unit. Under the CLRA, the court has the authority to make orders directing the appropriate police force to locate and apprehend a child, including search and entry orders.
Q 11. What is the limitation period for civil claims in Ontario?
A: An action must be issued before the expiry of a limitation period or it will be time-barred. A basic limitation period of two years running from the day when a claim is discovered. An “ultimate limitation period” of 15 years running from the day the act or omission on which the claim is based took place.
There are many other Ontario (and federal statutes) that also impose limitation periods (see the Schedule to the Limitation Act, 2002). For example, an action under the Libel and Slander Act for libel in a newspaper or in a broadcast must be brought within three months after the libel has come to the knowledge of the person defamed (Libel and Slander Act, s. 6).
Q 12. I am a commercial business landlord. My tenant closed its business since March and have limited income resource from then on. How should I respond to the pandemic of COVID-19?
A: The Protecting Small Business Act, 2020 prohibits certain actions by landlords if the landlord is or would be eligible to receive assistance under the Canada Emergency Commercial Rent Assistance ("CECRA") program for small businesses. As a landlord, you may consider if you and your tenant are qualified for the CECRA program and get available relief from the government.
Key provisions of the Protecting Small Business Act, 2020 are as follows:
(1) No order a writ of possession during the non-enforcement period (ending on the day the Act is repealed, being September 1, 2020, or on an earlier day to be further published) in respect of a qualified tenancy if the basis for ordering the writ is due to arrears of rent.
(2) No landlord can exercise a right of re-entry during the non-enforcement period.
(3) No landlord shall, during the non-enforcement period, seize any goods or chattels as a distress for arrears of rent.
However, the Act does not forgive the arrears and interest of rent during the non-enforcement period. Landlords' rights would be restored after the repeal of the Act. Please contact our firm for any questions you may have regarding the new proposed legislation and your rights.