Frequently Asked Questions
Do I have to proceed with a divorce upon separation?
No, you do not … Many spouses first proceed with an attempt at negotiating the terms of a Separation Agreement, prior to proceeding with a divorce. The only legal reason for proceeding with a divorce, in fact, is if you want to re-marry. However, both remaining married and proceeding with a divorce have certain legal implications which may, depending on your circumstances, affect you. Therefore, you should consult with a lawyer as to whether you should proceed with a divorce or try to oppose your spouse’s divorce application.
Do I have to go to court at all?
Not necessarily … The ONLY issue that requires judicial (court) involvement and endorsement, is a divorce. Spouses can settle all outstanding issues between them by way of a Separation Agreement, and then proceed to court (if one wants) to obtain a divorce. In these circumstances, the divorce is often times “uncontested”, meaning that it will go through without opposition and without the necessity of either party or counsel actually appearing in court. My advice to clients who are separating is usually to try to settle all outstanding issues first (by way of Separation Agreement), and then proceed with the divorce. There are, of course, urgent situations where immediate court action is necessary. Provided that both parties are cooperative, act in good faith and provide full disclosure, every effort should be made to attempt to resolve your matter through settlement negotiations which would lead to the signing of a Separation Agreement. The best way to resolve your matter is to settle it on terms that are fair and reasonable to both parties and which accord with the children’s best interests.
Does either party (you or your spouse) have an automatic right to custody of our children?
No, “custody”, in law, means “decision-making”. “Sole custody” means that one of the parents is entrusted with all of the rights surrounding the major decisions to be made on behalf of the child or children. Sole or joint custody does not have anything to do with where your children will reside. “Joint custody” means that the decision-making authority with respect to the children is shared between the parents, so that both parents have to agree to a decision (following a consultation process) before a decision can be made; one parent cannot unilaterally make a major decision. By law, both parties have an equal right to custody of children until and unless the parties agree or a court determines otherwise. NOTE: If your case is of an urgent nature, you should consult with a lawyer immediately in order to seek advice specific to your circumstances. Also, you may want to contact your local Children’s Aid Society if the safety and protection of your children is at issue.
My spouse will not leave the home. Do I have the right to either change the locks or call the police?
If your situation is not urgent, you cannot simply change the locks or evict your spouse without a court order or agreement, even if the home is solely in your name. Generally, if your spouse will not leave voluntarily, you have to obtain a court order for exclusive possession of the home, which the court may grant if “continued cohabitation has been rendered intolerable”. If this test is met, the issue of who gets to remain in the home depends on a number of factors, including what is in the best interests of the children. I recognize that this is often times the scenario at marriage breakdown, in that both spouses want to remain in the home at the time of separation. It is a difficult and sometimes complex issue, one that requires legal advice specific to your particular circumstances. There are frequently options available that may not have been considered, such as each spouse alternating time in the home, often referred to as a “nesting” arrangement. Certainly, if there is any violence or threat of violence, the police should be called immediately.
What is a ‘legal separation’?
There is no such thing as a ‘legal separation’. People are separated when they meet the legal definition of being separated, regardless of whether they have a written agreement. In fact, many spouses can be “living separate and apart under the same roof”. In other words, spouses can be separated, but still living together in the same home. You don’t have to have a Separation Agreement to be separated. The date of separation is relevant to two issues; firstly, if you are basing your claim for a divorce on the fact that you and your spouse have “lived separate and apart for one year”, the divorce order will only be able to be granted one year from the date of separation. Secondly, in Ontario, there is an equalization of property formula that divides property (and debt) accumulated by each spouse from the date of marriage to the date of separation. The value of solely-owned property – for equalization purposes – is essentially “frozen” as at the date of separation.
What is a ‘retainer’?
A “retainer” is an agreement between the client and the lawyer, whereby the client retains the lawyer to represent him or her in the family law matter. It also involves the client paying the lawyer a ‘retainer’, which is an advance on services that the lawyer will be rendering and disbursements that will be incurred on behalf of the client. This retainer is held ‘in trust’ by the lawyer and remains the property of the client until the lawyer renders an account, at which point the lawyer draws money from trust to pay the lawyer’s account. The amount of the initial retainer depends upon such matters as my assessment of the complexity of your case, immediate time to be committed to your file, whether your matter is proceeding to or already in court, etc.
What is mediation and arbitration?
Mediation is a process whereby you and your spouse meet with a third party facilitator who will attempt to assist you in reaching a settlement. The mediation can be either “closed” mediation or “open” mediation. Generally, mediation is closed, meaning that all information, offers or documentation exchanged during the course of the mediation sessions remain privileged, and cannot be disclosed by either party if the matter proceeds to court. This enables the free-flowing of information and offers to settle. Please click here to view my Mediation Contract, and to obtain further details of this process. Arbitration is a process where you and your spouse agree to have a third party hear your case and make a decision on the issues before the arbitrator, much in the same way as with a judge in court. You and your spouse have to sign an Arbitration Agreement, outlining the parameters of the process, issues to be arbitrated, etc. Arbitration is often considered to be a more cost-effective and timely (especially with significant court backlogs) manner to resolve disputes.
How much will my family law matter cost?
This is indeed the million dollar question, so to speak…. With the exception of an uncontested divorce, family law matters are not billed on a ‘block fee’ basis. For uncontested divorces, with court and other disbursements, you can expect a total legal cost of $1,500.00, inclusive of taxes. For other matters, I charge an hourly rate of $400.00, plus GST. Obviously, the more complicated your matter, the more you can expect to have to pay in legal costs. Generally, the most cost-effective way to resolve your family law matter is through a settlement, without the time and expense of proceeding to court. In court cases, the costs can become significant, with several court appearances and, possibly, out of court questioning. Preparing for and attending court can be quite time-consuming for a lawyer. Whether for settlement negotiations or court cases, you are charged for all time that I spend on your file, including telephone conferences, e-mails, meetings, letters, drafting documents, preparing for and attending court. All information concerning the retainer and cost is set out in my Retainer Agreement.