NOTICE TO READER
The answer to each question below is a brief summary for informational purposes only and is only applicable in the Province of Ontario. It is not meant to be legal advice. If you require information or advice as it relates to your individual circumstances you are advised to consult with your own lawyer or retain the legal services of Veena Pohani.
how long does it take to get a divorce?An uncontested divorce can take anywhere from 6-12 weeks. An Application for Divorce that is contested will take much longer as the Courts need to resolve the corollary issues. Corollary issues are custody, child and spousal support, property issues, extended health benefits, or restraining orders. The issue of whether child support is being paid or not is a bar to a divorce. In other words, the Courts will not grant a divorce order unless child support is being paid or there is an explanation provided for why it is not being paid and the explanation is accepted by the court. For example, if a couple have shared custody of their children and earn approximately the same income and there is no child support being paid on consent, this is a very logical reason for child support not to be paid and the court will be inclined to accept this explanation.
There are many factors that affect the length of time it takes to get divorced. Unless the reason for the divorce is adultery or cruelty, the spouses must have lived separate and apart for at least one year. If you have commenced your Application for the divorce before the one year of separation has expired, you will have to wait until the year of separation is complete, before the judge will grant a divorce.
what is an uncontested divorce?A divorce is actually a legal dissolution of a marriage. An uncontested divorce occurs when the spouses have signed a separation agreement that has resolved all issues such as custody, access, support and property division, and they now both want to be divorced, then one of the spouses can commence an application for divorce that consists of a request for a divorce only. The spouse requesting the divorce must serve an Application for Divorce on the other spouse, but he or she cannot serve the Application himself/herself. You must either use a process server or a friend or family member to serve the other spouse with the Application for Divorce and file the Affidavit of Service with the Court in which the Application was commenced. If the other spouse agrees to a divorce, then he or she may choose not to contest the Application for divorce. That is why it is called an uncontested divorce.
what does the process of getting a divorce entail?You can commence an application for divorce as soon as one of the following three circumstances has occurred: the other spouse has committed adultery, the other spouse has committed cruelty, or the spouses have separated. As soon as one of these circumstances has occurred, a spouse can commence an application for divorce. 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 judge will grant a divorce judgment.
Valuation DateThe date the parties separate is extremely important as this is the date that the assets and liabilities are valued for the purposes of calculating division of property. Your lawyer will want a copy of the value of the assets such as your RRSP’s, GIC’s, stocks, Matrimonial Home, and all the debts so that they can properly assess your net worth on the date of separation.
The date of separation is the date the parties physically stop living together or they date they attribute to being separated but living under the same roof. A couple can be legally separated while cohabitating together. The courts will look at a number of indicia to determine if in fact they are separated such as whether they are living in the same bedroom, have stopped communicating, and traveling together, attending social functions together, exchanging birthday or anniversary gifts or cards, changed their banking habits, among many other varied circumstances.
The opposing party has a right to receive all the disclosure regarding the value of assets and liabilities held on valuation date. It is always best to keep all your documentation and information regarding the value of your assets and liabilities on the date of separation given the other party is entitled to this disclosure.