Family Law FAQs

Frequently Asked Questions About Divorce & Family Law

DIVORCE & SEPARATION

I want to get a divorce, but my spouse does not. What can I do?

Only one party’s intention is required to establish a legal separation. Once that party has made it clear they wish to end the relationship, and the parties begin to live “separate and apart” with no reasonable prospect of reconciliation, this is sufficient to establish the separation date. However, if your spouse is not willing to participate in the negotiation process and resolve the details of the separation outside of court, you will have to bring the matter to court for a court order. The court can make an order against your spouse if you start an Application for divorce even if your spouse ignores your Application. Sometimes, this is the only way to get a reluctant spouse to respond and, in most cases, the other spouse does respond so that the court hears both sides of the story on the issues to be determined.

My spouse and I both want a divorce. Can we use one lawyer?

No. It is important that you both have separate lawyers. Even if you agree on the terms of settlement and have agreed to enter into a separation agreement, you each need your own lawyer to give you independent legal advice. The best way to ensure fairness in the terms of settlement is to ensure each party is fully aware of their respective rights and obligations as set out in the terms of the contract and the nature and consequences of the terms of the contract. If your spouse tries to challenge the contract in the future, a court is more likely to uphold the contract if you have both had independent legal advice and representation before signing and you have both have had meaningful input into the terms of the contract, each with the assistance of their own lawyers.

How do I get a divorce?

Typically, before a divorce is granted, there are a number of other legal issues to resolve first, including child custody, child support, spousal support and property division. A judge is required to ensure that proper support is being provided for the children before a divorce is granted. Although you can resolve all of these issues by agreement, the only way to be divorced is to start an application to the court. Before granting a divorce, you first need to be separated for a year or meet the other grounds for divorce such as adultery or mental cruelty which are now rarely used.

The corollary issues can be dealt with through negotiation, litigation, mediation, collaborative law or arbitration. Each case is different and may require a different process to resolve the issues. Our lawyers take the time to understand each client’s unique situation, needs, and desired outcomes in order to get the best possible results for our clients. Contact us to set up a consultation and to get your divorce process started.

What is the difference between divorce and separation?

Divorce is the final step in ending your marriage. A Divorce Order, issued by a court, terminates your legal status as a “spouse”. However, a Divorce Order does not resolve all the other issues that arise out of a separation from your spouse or partner. Separation is when a married couple lives “separate and apart” for the mandatory period of one year prior to applying for a divorce. Notably, a couple can share a residence while separated. Separation also refers to the breakdown of a common law relationship because the concept of a divorce does not apply and many of the same issues need to be resolved.

A separation agreement is a legal contract that is based on the agreements you and your spouse/partner reach on the many legal issues arising out of the separation. The lawyers at Bortolussi Family Law can help you at any stage of your separation or divorce and will work with you to achieve the best results possible to create a parenting plan and document the re-organization of your assets and finances in the separation agreement between you.

My spouse and I want to avoid court. How do we do this?

If the parties wish to come to an agreement on all issues arising out of the breakdown of a marriage or common law relationship, they can negotiate a settlement directly with each other or with the assistance of their lawyers. Mediation and the collaborative practice model can be used to effectively facilitate negotiation as alternatives to court. This is usually less expensive than court and allows for a settlement more tailored to the specific needs and goals of the family. These alternatives to court also help reduce conflict and are therefore much healthier for any children involved.

Bortolussi Family Law offers consultation, coaching, mediation, and collaborative family law services that can be used to effectively facilitate negotiation. We also regularly represent clients in binding arbitration, for situations where a decision-maker is necessary, but the parties still wish to avoid court. These alternatives to court also help reduce conflict and are therefore much healthier for any children involved. Contact us today to discuss your options for avoiding court.

I lived with my common law partner for many years, but we never married. Do we have to get a divorce?

The short answer is “no”. A divorce is only needed to terminate the status of a legally married spouse.

When a common law couple separates, there may be individual issues that need to be resolved through the creation of a separation agreement. For example, if you share a child, child support may be necessary, as well as a parenting schedule or plan. Property rights are not the same for married spouses and common law spouses, however common law partners may be able to establish a need for spousal support. You may also have some property rights, depending on the circumstances. Book a consultation to find out what your rights as a common law spouse are.

How do I get a legal separation?

When people ask for a legal separation, they are often asking about three things:
1. When does a separation occur and what is recognized as a separation?
2. What is the formal, legal document or process that will evidence the fact that the marriage or union is over?
3. Why is the date of separation so important?

When both spouses agree, establishing the date of separation is very easy. When there is disagreement about the date of separation, your situation must be looked at more closely to determine what this important date is.

The date of separation is used in separation agreements and by the court in making the appropriate Orders. The value of assets for the purpose of equalization of property is taken as of the date of separation. The date of separation also determines when your Divorce Order can be obtained.

The facts in each case are unique. Our lawyers can answer these questions and provide details about legal separation that may be specific to your unique situation. Contact Bortolussi Family Law to book a consultation and begin the separation process.

What is family mediation?

In family mediation, the parties agree to meet with each other to discuss and resolve their issues with the assistance of a neutral and unbiased mediator to facilitate their negotiations. It is a voluntary process and both parties must agree to mediate. The goal is to agree on terms which will ultimately form part of a separation agreement or other domestic contract.

Mediation is not regulated. To ensure that the mediator you select has adequate training and experience, it is important to check their credentials. One way to be certain that the mediator has desirable credentials and continues with professional development in this area is to confirm that they hold the Accredited Family Mediator designation.

Lorraine Bortolussi is an accredited Family Mediator through the Ontario Association for Family Mediation (OAFM). She is also a past president of the Ontario Association for Family Mediation. Her mediation training includes completion of the Harvard University Law School Mediation Workshop in 2001 and a Master of Laws degree specializing in Alternative Dispute Resolution from Osgoode Hall Law School at York University in 2006.
Contact Lorraine to discuss whether mediation is appropriate in your situation and her availability. If you are interested in retaining Lorraine as your family mediator, feel free to forward her credentials to your spouse/partner or their lawyer for consideration.

PARENTING

What is the difference between sole child custody and joint custody (decision-making authority for children)?

Sole child custody means one parent has the decision-making authority over major issues like residence, health, education, and religion.

Joint child custody is where those decisions are made by both parents in consultation with each other.

The lawyers at Bortolussi Family Law can give you information about your custody rights based on your unique circumstances. We work with families to achieve the best possible outcome for all parties, and most importantly, for the children involved. Contact our lawyers to discuss the various custody arrangements that maybe available to you.

Who gets custody of the kids?

Determinations of child custody, now referred to as decision-making ability in parenting, are based on the child’s best interests. Generally, it is considered beneficial to provide a child with as much contact with each parent as possible, unless doing so is not in their best interests for one reason or another.

My ex-partner is threatening to leave the country with my children. Can they do this?

Without your consent or a court order the other parent should not be able to leave the country with your child(ren) and will likely be stopped at border services. Sometimes, an emergency order must be sought to ensure that the children are not removed from the country without your consent. It is important to bring such an application to the court for an order without delay when such a situation presents itself. The lawyers at Bortolussi Family Law can help you act quickly and efficiently to prevent the removal of your children from the country.

How much time will I get with my children?

Parents must agree on whether the children will spend their time primarily with one parent, with the other parent having access/visiting rights to (parenting time with) the children or whether the parents will share time more equally. If the parents cannot agree on how much time the children will spend in each household, the court will impose that decision on them after considering many factors which affect the child’s best interests. These may include the parents’ availability, ability and willingness to care for the children, as well as the parents’ ability and willingness to communicate effectively with one another.

FINANCES & PROPERTY

I lived with my common law partner for many years, but we never married. What rights do I have to spousal support? What rights do I have to property?

If you lived together for at least 3 years, you may have a claim for spousal support. If you and your partner had a child, you must have been in a relationship of some permanence to entitled to spousal support. Child support however is always payable whether the parents are common law or married spouses.

As a common law spouse, you have a right to your own property and part of the property you hold jointly. You may also have some rights to property held solely in your spouse’s name, depending on the circumstances. At Bortolussi Family Law, we will go over your situation with you in detail to ensure you are aware of all your entitlements as a common law partner.

Do I have to give my spouse half of everything?

Every situation is different. Often, people will refer “giving them one half of everything” when discussing the concept equalization of net family property. This is an overly simplified reference and often not accurate. There are some very basic and important points to remember in dealing with the division of property:

1. Equalization of property only applies to legally married spouses and not to common law spouses;
2. A careful inventory of the value of the couple’s assets and debts as of certain dates must be done to calculate the equalization payment. This calculation considers the value of the assets the spouses have accumulated during the marriage, what they brought into the marriage, gifts received by each of them during the marriage from third parties, and other excluded assets. A mistake on any one number in this calculation can be very costly.

The lawyers at Bortolussi Family Law are skilled at ensuring their clients receive what is rightfully theirs. If you have concerns about giving your assets, including your business or pension away during separation and divorce proceedings, contact us to set up a consultation with one of our lawyers.

I want to stay in my house. Can I buy my spouse’s share of the matrimonial home?

A matrimonial home is sometimes a couple’s largest asset. Often people own their home jointly. If you and your spouse settle your separation outside of court, you can agree that one person will purchase the other’s share of the home.

If you and your spouse cannot agree, and your matter goes to court, a judge may order that the home be sold, and the proceeds be divided or held in trust until the equalization payment can be calculated.

What should I do with our joint accounts and lines of credit?

You may want to consider notifying your bank that you have separated to ensure that joint account overdraft, lines of credit, or credit cards are not misused. After separation, joint assets and debts are considered in the equalization calculation and must be accounted for if spent by one of the spouses after separation.

What is not divided in a separation?

Under the appropriate circumstances, some property acquired during the marriage does not have to be included in the calculation to equalize net family property. For example, gifts or inheritances received from third parties during the marriage, damages received as a result of personal injuries, and proceeds of a life insurance policy are excluded from the calculation. A deduction reduces the net family property of a spouse and therefore reduces the equalization payment that may be owed to the other spouse. A deduction is permitted for the value of assets already owned on the date of marriage if the existence of the assets and their value can be proven. However, if the matrimonial home was owned by one spouse on the date of marriage, the deduction for its value is lost because a matrimonial home cannot be deducted from their net family property. It is important that your assets are classified correctly so that you do not end up paying more than the law requires.

Will I be responsible for my partner’s debt?

Any debts in your partner’s name alone as of the date of separation will be included in his or her net family property. Ultimately, they will be responsible for paying their sole debts, but the amount will affect the equalization calculation. Balances on joint lines of credit and joint credit cards as of the date of separation are considered to be shared equally but if used by one spouse post-separation, although an accounting is required, the reality is that both spouses are fully responsible for payment of the joint credit facility to the financial institution.

How much child support will I have to pay?

The Child Support Guidelines dictate how much child support is payable. Several factors are used to calculate the monthly amount including how much time each child resides with each parent, the annual gross income of both parents, the number of children and province of residence. Special and extraordinary expenses (such as child care, tuition, orthodontia, and extracurricular costs) are then calculated in an amount that is in the proportion that the payor’s income is to the total family income, and this is added to the monthly table amount.

Calculating and negotiating child support can be a complex and involved process but determining the correct child support payments is essential to meeting your child’s needs and ensuring your child’s wellbeing.

The lawyers at Bortolussi Family Law recognize the importance of putting children’s needs first throughout the separation and divorce processes. If you have concerns about child support, contact our lawyers to set up a consultation.

What if my ex-spouse refuses to pay support?

If your spouse refuses to pay support under an existing separation agreement, you may need to go to court to get a support order. A court order is always filed with the Family Responsibility Office for enforcement.

If you have a separation agreement requiring your spouse to pay support and he or she stops paying, you can opt to register your agreement with the court and then file it with the Family Responsibility Office (often referred to as FRO) for enforcement. Alternatively, you can proceed to take steps privately to enforce the support obligation. Consideration of cost is one factor which may determine your best path forward. Our lawyers can help you decide whether to file with the Family Responsibility Office or take other action to ensure that you are receiving the spousal and/or child support payments to which you are entitled.

“Bortolussi Family Law have helped me through one of the most difficult times in my life with comfort and poise. Their qualities are admirable and calming and helped me remain grounded and focused. 5/5” Daniela

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