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Frequently Asked Questions (FAQ)
Table of Contents
Divorce
What are the grounds for Divorce?
Can I stop the Divorce?
Can one lawyer represent both of us?
How long will the Divorce take?
Should I move out of the house?
How can I prove my spouse is hiding cash?
Can I continue to use my credit cards?
Can I change the locks on the house?
Will my spouse be required to return to work?
Can I buy a house?
What if I don’t show up in court?
Your Relationship with Your Lawyer
How can I help with my case?
Can I change lawyers?
Putting a Price Tag on your Divorce Case
Can I make my spouse pay for my legal fees?
What can I do to keep legal costs down?
How much will my case cost?
Etiquette
When can I date?
My spouse has been abusive. Does that matter in divorce?
Can my therapy sessions, counselling, or antidepressants be used against me?
Does it matter that I drink?
I don’t want my spouse to have my last name anymore. Can I make her change her name?
The Road to Settlement
What is Alternative Dispute Resolution?
What is negotiation?
What is mediation?
What are the advantages of mediation?
What happens after an agreement is reached?
What is arbitration?
What is med/ arb?
What if I don’t like the arbitrator’s decision?
What is collaborative law?
How does the collaborative law process work?
Focus on Custody
How does the Court decide who gets custody of the children?
Do the wishes of the child have any effect on the custody decisions?
Should I ask my child where he/she wants to live?
Do I really have to discuss every detail about the kids with my ex?
My child says he does not want to see my ex-spouse. Do I have to force him to see my ex?
Is a 50/50 time split the best way to be fair to both parents?
If my spouse and I have 50/50 time split with the children, does that mean I don’t have to pay child support?
What will my ex-spouse be able to use against me in order to gain custody of the children?
Child Support
How much child support will I have to pay?
What about extra expenses?
My ex-spouse will not let the children see me. Can I stop paying child support?
The kids are with me for the summer. Can I stop paying child support?
Do I stop paying child support on my child’s 18th birthday?
What if I re-marry and have more kids. Can I reduce my child support amount?
Spousal Support
Do I qualify for Spousal Support?
How much will I pay?
How long will I have to pay Spousal Support?
I have heard about the Spousal Support Advisory Guidelines. What are these?
Can the amount of spousal support be changed?
How do I enforce payments?
Dividing Property and Sharing Debts
What property gets divided?
Is all property divided equally?
I did receive an inheritance of $50,000 during the marriage. Do I get this money back?
Can I get back the money that my parents gave us?
Do I get half of my spouse’s pension?
Can I empty the bank account?
Can my spouse sell the house?
How can I get my name off the mortgage, credit cards, or car loans?
If my spouse or former spouse goes bankrupt, am I responsible for joint debts?
Relocation
I know that my ex-spouse will make it difficult for me to move. Can I move and then tell him/her?Divorce
What are the grounds for Divorce?
In Canada you can obtain a Divorce if you can prove to the Court that there has been a breakdown in marriage, which is shown only by one of the following three grounds:
- You and your spouse have lived separate and apart for at least one year;
- The spouse not requesting the divorce has committed adultery against the spouse requesting the divorce; or
- The spouse not requesting the divorce has committed physical or mental cruelty against the spouse who is requesting the divorce.
Can I stop the Divorce?
Once your ex-spouse has met one of the grounds for Divorce, he or she will be able to apply for a Divorce Judgment. In some cases, the Divorce will be delayed while support or parenting issues are unresolved.
Can one lawyer represent both of us?
No, this is usually a conflict of interest. You and your ex-spouse must each obtain Independent Legal Advice on issues regarding the children, support, and division of property. In rare circumstances, if there are no contested issues between you, one lawyer can represent both of you to process a desk divorce.
How long will the Divorce take?
You must first meet one of the three grounds for divorce in order to obtain a Divorce Judgment. If there are no contested issues between your spouse and yourself, then the Divorce can proceed by desk divorce and this takes approximately 2 to 3 months, depending on the volume of divorces that are being processed. A rush divorce can be obtained in some cases.
If there are contested issues between yourself and your spouse, generally the divorce will be delayed until these issues are resolved, which can take weeks or years, depending in the large part on how far apart you and your spouse are on the contested issues.
Should I move out of the house?
No. You should obtain legal advice before you make the decision to move out of the house. Once a party moves out, a lawyer may have difficulty getting an order for that person to be able to move back in later. If there are disputes regarding children and one party moves out, leaving children behind, this can make it more difficult to obtain an order that the children should reside with the parent who moved out.
How can I prove my spouse is hiding cash?
In the early stages of the Divorce, both parties will be required to disclose financial documents, including bank statements, returned cheques, pay stubs, and investment account statements. In addition to this your lawyer may discuss “examinations for discovery” with you, which is a process of obtaining more information and records from your spouse. Your lawyer may also discuss hiring other experts, such as accountants or business valuators to help with the investigation.
Can I continue to use my credit cards?
Typically, you should make conservative purchases during your separation. You do not want to be seen as dissipating matrimonial property. Significant purchases may be questioned. If you use credit cards for business or everyday use, you can generally continue to do so. You may wish to check your credit card companies to make sure that your spouse has not frozen the credit card or removed you from them.
Can I change the locks on the house?
Yes, as an owner you can change the locks; however your ex-spouse can also change the locks. You are not entitled to prevent your spouse from coming into the matrimonial home unless a Judge makes an Order for exclusive possession. If you fear for your safety you should discuss obtaining a Restraining Order, which typically would prevent your spouse from returning to the house.
Will my spouse be required to return to work?
This will depend on your unique circumstances and finances. Undoubtedly, separation causes tremendous financial strain to most couples, which may require one or both of you to increase employment. You should consult with one of our lawyers regarding your obligations and entitlements respecting child and spousal support.
Can I buy a house?
It is wise to avoid making any major purchases during the divorce. Further, until the Divorce Judgment is granted, any property purchased is subjected to a claim by your spouse, even if it is purchased in your sole name after your separation. You should talk with your lawyer about the timing of this purchase during your settlement.
What if I don’t show up in court?
The Judge can make an order even if you are not in Court. You should discuss this with your lawyer before the Court date. If you missed a court date and an Order is made, you should consult your lawyer to see if anything can be done to change the Order.
Your Relationship with Your Lawyer
Generally, having well-organized files for income tax returns, bank statements, and other financial records can be very helpful. Also, having an idea of what your household expenses are, including receipts. Keeping a written record of things that have occurred between yourself and your spouse, particularly as it relates to the children.
Can I change lawyers?
Yes, you have the right to work with the lawyer of your choice. However, if your case is complex, keep in mind that you may incur additional expenses due to the time needed for your new lawyer to get up to speed on your case. In addition, expect to address any issues of unpaid fees with your first lawyer before he/she turns over the file to your new lawyer.
Putting a Price Tag on your Divorce Case
Can I make my spouse pay for my legal fees?
Generally, you have to pay the cost of your own lawyer. If you win in Court, sometimes the Judge will award some costs to you, however this is usually a small amount and will not reimburse you for all your legal costs. In some cases, it is possible to get your spouse to advance you funds for your legal costs.
What can I do to keep legal costs down?
Collect and maintain organized records of finances and other documents. Respond to your lawyer’s requests for information or records promptly. Prepare for telephone calls and office meetings with your lawyer ahead of time. Focus on the time with your lawyer on legal issues. Often time spent venting or complaining about your ex’s behaviour will not advance your case. Have those conversations with your friends, family members or therapist instead.
How much will my case cost?
Unfortunately, that is difficult question for your lawyer to answer at the beginning of your case. Your lawyer should be able to provide you with an estimate of the cost of certain steps involved in your case. However the way your case proceeds will depend on what issues are disputed, how complicated your situation is, the attitude and tactics of your ex-spouse and his or her lawyer.
Etiquette
When can I date?
Providing that your dating does not have a negative impact on your children, you can date anytime after you separate from your spouse. However bear in mind that when one party moves on before the other, this may cause an escalation of the conflict between you and your spouse, which can have an impact upon settlement. If you decide to date, it is best to be low-key about it.
My spouse has been abusive. Does that matter in divorce?
You should advise your lawyer if abuse has taken place. This can affect the arrangements regarding children and it may be necessary to obtain an order to ensure your safety.
Can my therapy sessions, counselling, or antidepressants be used against me?
In general most Judges are understanding about the fact that separation is a very stressful time in people’s lives and you should not be deterred from seeking the professional help that you may need at this time. Also, if you are in need of professional help and not seeking it, this can negatively impact your custody decision.
Does it matter that I drink?
If you are ever going to be going in front of a Judge for a decision on custody, you will want to show that your behaviour is clean and does not negatively impact upon the children’s lives at all. If you do drink, it is best not to do so in the children’s presence.
I don’t want my spouse to have my last name anymore. Can I make her change her name?
No.
The Road to Settlement
What is Alternative Dispute Resolution?
The term refers to any dispute resolution process that does not involve litigation (Court).
What is negotiation?
A very large percentage of divorce cases are negotiated and settled without ever being heard in front of a Judge. Negotiation can be very informal and unstructured and take place directly between your ex- spouse and yourself, or it can involve your lawyer. It can take place with letters, phone calls and faxes between lawyers presenting offers and counter-offers or it can take place in structured meetings with lawyers, you and your ex-spouse all present.
What is mediation?
Mediation is an informal and non-binding settlement process where a neutral third party, who is a trained mediator, assists the parties in reaching a settlement. The mediator is present to facilitate the discussion and decision of the parties.
What are the advantages of mediation?
It is confidential, informal and less expensive than other processes. The Parties reach a decision together after having input. Statistics show that a mediated agreement is more likely to be followed by the parties.
What happens after an agreement is reached?
The mediator will prepare a memorandum of understanding and forward it to the parties and their lawyers. The lawyers may then draft a formal Agreement, which reflects the terms reached in mediation. If this Agreement is formed and signed by both parties with their independent lawyers, it is then legally binding.
What is arbitration?
A lawyer or retired Judge who is trained in arbitration is appointed to hear evidence of the parties and make a decision, much in the same fashion as a Judge would. It is faster than proceeding through the Courts. It is less formal than Court.
What is med/ arb?
This is a combination of mediation and arbitration. The mediator/ arbitrator is hired to first attempt to assist parties in reaching a settlement of all or some issues. If a settlement cannot be reached, then the matter proceeds to the arbitration stage where the arbitrator hears more evidence then makes a decision.
What if I don’t like the arbitrator’s decision?
In most instances, an arbitrator’s decision is final, and the potential for an appeal to a Judge is limited or non-existent.
What is collaborative law?
In collaborative law, the parties and their lawyers formally commit in writing to a specialized process designed to resolve family law issues without Court intervention.
Prior to the collaborative process, a contract is signed by both parties and their lawyers, agreeing to avoid litigation; to provide complete, open and honest disclosure of all information, to use joint experts where needed (i.e. property appraisals or evaluations on custody/ access issues) and to negotiate in good faith without threatening litigation. If one of the parties takes the matter to Court, then the two lawyers must withdraw and both parties must get new lawyers.
How does the collaborative law process work?
The collaborative process includes lawyers (who are trained in the collaborative process) and clients in four-way meetings. The lawyers still each represent their own client, but the intention is that discussions will be interest-based, as opposed to position-based. The lawyers facilitate the parties presenting settlement options and agreeing on the options that serve the interests of both clients and their children.
Focus on Custody
How does the Court decide who gets custody of the children?
The Court’s decision as to which party will receive custody is based upon the child’s best interests after considering all the relevant factors and circumstances.
Do the wishes of the child have any effect on the custody decisions?
The Judge may place some weight on the child’s wishes depending on the child’s age and maturity level. It is also important that the child’s wishes be demonstrated in a non-biased way. Ultimately, the decision of custody would still rest with a Judge who may review the child’s wishes as one factor in determining custody.
Should I ask my child where he/she wants to live?
Parents should never ask a child to make a choice between one parent and the other. The child is frequently placed in a position where he is trying to please the parent and says one thing while in the presence of one parent and says the opposite while in the presence of the other parent.
Do I really have to discuss every detail about the kids with my ex?
If your Agreement or order provides for joint custody or joint parenting, then you should discuss every major decision with the other parent, such as which school to enroll the child in, which Doctor to take the child to, whether the child should participate in hockey. You do not have to discuss day-today decisions with the other parent.
My child says he does not want to see my ex-spouse. Do I have to force him to see my ex?
A Judge may question whether a child has been influenced not to want to see the other parent either explicitly or through subtle forces. If your child knows that you have negative feelings about your spouse, they may feel that they are being disloyal to you in seeing that person. Never speak in a negative manner about your ex-spouse in front of your children, and do not allow your friends or other family members to do so. You should encourage your children to see your ex-spouse.
Is a 50/50 time split the best way to be fair to both parents?
The focus should not be on what is fair to the parents, but what is best for the children. Your time schedule should be devised after considering your work schedule, your spouse’s work schedule, your child’s school and activity schedule, how far apart you live from your ex and the age, development and personality of your child.
If my spouse and I have 50/50 time split with the children, does that mean I don’t have to pay child support?
No, you may still be required to pay child support. This will depend on the income of you and your ex-spouse, the costs of the children, and who pays for the children’s expenses.
What will my ex-spouse be able to use against me in order to gain custody of the children?
You should assume that the other side would attempt to use past incidents that reflect poorly upon your ability to care for the children. The weight that the Judge may place on a particular incident will depend on how far back the incident was, whether it reflects a pattern of behaviour or an isolated occurrence, and how relevant it is to the ability to meet the needs of the children. Obviously you want to eliminate or minimize any type of behaviour that may be presented to the Judge as an example of bad parenting.
Child Support
How much child support will I have to pay?
The Federal Child Support Guidelines set the table child support amount based upon the number of children and your annual gross income.
What about extra expenses?
In addition to the table child support, there is a list of specific expenses that you may be required to contribute to. If the expense is one that fits within the categories, then your ex-spouse’s income becomes relevant and you each pay your proportionate share of the expense.
My ex-spouse will not let the children see me. Can I stop paying child support?
No. Child Support is paid regardless of whether you are seeing the children or not. If you are being denied access to the children this is very serious and you should discuss this with a lawyer. Do not stop paying child support, because this will look very bad if you ever go to Court for access (and your children still need support from you).
The kids are with me for the summer. Can I stop paying child support?
No, you must continue to pay the support unless you have specifically agreed with your ex-spouse that child support will not be paid for certain periods of time.
Do I stop paying child support on my child’s 18th birthday?
Not always. Child support may continue even after the child is 18 if he or she is enrolled in high school or post secondary education or if he or she is unable to become self-sufficient due to disability. Generally, if the child is still in school there is a requirement that the child be attending in full time studies and making passing grades.
What if I re-marry and have more kids. Can I reduce my child support amount?
No, not usually.
Spousal Support
Do I qualify for Spousal Support?
Whether you qualify for spousal support is a question that depends upon the particular factors of your situation. Some things that the Judge will look at to determine entitlement include:
- The length of time that you lived with your spouse;
- The income of both parties;
- The present and future earning capacities, education and work history of both parties;
- The ability of the spouse to become self-sufficient and the length of time for training that would be necessary;
- Reduced or lost earning capacity of the party seeking support as a result of having foregone educational, training, or employment opportunities during the marriage;
- The presence of children and any special needs the children may have;
- Contributions and services of the party seeking spousal support as a spouse, parent, wage earner and homemaker to the career or career potential of the other party; and
- Whether the claiming party suffers a decreased standard of living after the marriage breakdown.
How much will I pay?
This is another question that is difficult to determine without the assistance of experienced counsel. The amount of spousal support depends upon all factors listed above and also depends on case precedents, (how much has another spouse in Canada received in similar circumstances to mine). The ranges of spousal support have been so variable that there has been a call to provide some guidelines and consistency to support.
How long will I have to pay Spousal Support?
The answer to this depends upon the factors set out above.
I have heard about the Spousal Support Advisory Guidelines. What are these?
In order to provide some consistency in the amount and duration of spousal support, the Spousal Support Advisory Guidelines were drafted. The Guidelines propose a range for amount and a Guideline for the length of time. These were published in 2005 and they have had mixed results in the Courts with some Judges favouring them and others not. They are also useful in setting a starting point for negotiations between the parties and their lawyers.
Lonny Balbi, QC is a member of the Federal Advisory Group in Ottawa, the organization that developed and recommended the Spousal Support Advisory Guidelines.
Can the amount of spousal support be changed?
This depends on the terms of the original Order or Agreement. You may also need to show that there has been a material change in the circumstances, means or needs of either party.
The Maintenance Enforcement Program will enforce you spousal support payments if you register with it.
Dividing Property and Sharing Debts
If you are married, everything you own together or in separate names is divided (usually equally) between the two of you, subject to specific exemptions:
- Property acquired prior to the marriage by one of you;
- An inheritance;
- A gift from a third party to only one of you;
- Proceeds from a personal injury claim or insurance settlement.
Is all property divided equally?
Property acquired during the marriage is usually divided equally, but there are some exceptions. Please consult with one of our lawyers.
I did receive an inheritance of $50,000 during the marriage. Do I get this money back?
Only if you can show that the asset you acquired with the inheritance still exists. Also, if an asset was placed into joint names, you lose a portion of your original exemption.
Can I get back the money that my parents gave us?
If this was a gift intended at the time for the two of you, then no. If it was a gift to you alone, then it maybe exempt to you. If it was a loan then you are expected to re-pay it as a matrimonial debt.
Do I get half of my spouse’s pension?
The amount of the pension that was accumulated during the years of the marriage is divisible equally.
This may not be a good idea. Empty the account and war is on. If you are dependent upon the other person for support, this may backfire. Also, if your spouse is dependent upon you for support this will look very bad in the eyes of a Judge. If there is a Court Order in effect that restricts your ability to use funds, then you must not violate the Court Order.
If you are jointly on the title to the house, then your spouse cannot sell it without your consent. However, she/he may be able to obtain a Court Order directing the house to be sold.
How can I get my name off the mortgage, credit cards, or car loans?
In each instance, the loan or credit obligation must be refinanced or the lending institution must release you from liability. This cannot be accomplished directly as a result of divorce or property division process. If the lending institution will not remove your name, you may reach a settlement with your ex-spouse whereby he/she agrees to pay the loan and holds you harmless from it. In that case if you were ever held liable for the loan, your ex-spouse would have to reimburse you.
If my spouse or former spouse goes bankrupt, am I responsible for joint debts?
Yes, unless you also go bankrupt. Keep in mind that this applies only in joint debts.
Relocation
I know that my ex-spouse will make it difficult for me to move. Can I move and then tell him/her?
This is a decision that may backfire. Your ex-spouse can go to Court and obtain an Order to have the children returned. Making unilateral decisions that significantly impact the children and your ex-spouse will not look good from a Judge’s perspective.
