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FAMILY Lawyer North York
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Divorce & Separation, Mediation, Child Custody, Child Support, Contracts & Agreements, Litigation, Appeal Work, Arbitration, Collaborative Family Law,Contested Divorces ,Uncontested Divorces, Spousal Support,Child Support,Moving With Your Child After Separation Or Divorce ,Equalization Of Net Family Property ,Complex Estate Planning And Divorce Law ,Trusts, Pensions, Taxation And Family Businesses ,FAMILY LAW Litigation Strategy And Management,Domestic Contracts,Separation Agreements,Cohabitation Agreements,Prenuptial Agreements/Marriage Contracts
Nussbaum Family Law
Gene C. Colman Family Law Centre
2001 Sheppard Ave E Suite 120, North York, ON M2J 4Z8
4950 Yonge St #2200, North York, ON M2N 6K1
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FAMILY LAWYER NORTH YORK
A separation agreement is a written agreement between two spouses who have separated or are about to separate. The agreement generally establishes a number of rights for each spouse, including who will live in the family home, how property will be divided, who will pay the family debts, who will make child and spousal support payments, who will have custody of children and what kinds of visitation rights the other parent will have.
Writing a separation agreement is voluntary and is not required under the law to establish a legal separation. With or without an agreement, a separation is legal as soon as two spouses are living separately and at least one spouse does not intend to move back in together. However, a separation agreement resolves most of the issues of separating and makes the separation easier. When possible, spouses who separate should try to reach an agreement and formalize it as a separation agreement as soon as possible. Although reaching an agreement shortly after spouses separate helps the spouses to get on with their lives, separation agreements can be made before or after a formal divorce.
Requirements for a legally binding separation agreement
To create a legally binding separation agreement both spouses must be completely open and honest about their financial situations. This requires a detailed disclosure of their significant assets and liabilities. The agreement must be in writing and signed by each party in the presence of a witness. The agreement must be entered into voluntarily and not under any duress. Each party must understand the agreement. It is in the interest of both parties that each of them receives independent legal advice. Some aspects of the agreement may eventually be subjected to judicial review and in certain areas, particularly where the rights of children are involved, the terms of the agreement can be overridden.
While it is the policy of the courts to uphold separation agreements, practically speaking, it is a good idea that one-sided agreements be avoided. Unfair agreements may tend to create resentments that can lead to court proceedings to change the agreement. Unfair agreements also encourage litigation on marriage breakdown which is the very thing that they are supposed to avoid. Although a separation agreement becomes legally binding once it is signed, the parties can vary the terms by further agreement at any time.
Enforcing a separation agreement
By entering into a separation agreement, each spouse will have the same rights and obligations as if the terms of the separation agreement were ordered by a court. If you are concerned that your spouse is not going to fulfill some of the obligations in the separation agreement, the agreement can be filed with the Family Responsibility Office. By doing this, your agreement can be enforced without cost to you under the Family Responsibility and Support Arrears Enforcement Act. This office is funded by the Government of Ontario and has significant powers to enforce support payment under the agreement. You can also file the agreement with the court pursuant to the Family Law Act. For more information on filing your separation agreement, refer to the Family Responsibility Office or visit your local courthouse.
Once you have decided to get a divorce, a number of procedures must be followed for the courts to actually grant the divorce. This includes filling out forms, filing documents with the court and possibly going before a judge to resolve contested issues between you and your spouse. In most cases, these procedures will be handled by your lawyer.
Normally, in order for a court to have the authority to grant a divorce, at least one of the spouses must have been a resident of Ontario for at least 12 months before the application was submitted. A divorce can be granted, however, even if the marriage took place outside of Canada.
In some cases, divorces are uncontested. This means that you and your spouse both want a divorce and you agree on things such as how property will be divided, who will have custody of your children and any support payments. In the case of an uncontested divorce, the procedure is relatively simple. In most cases, you will not have to go to court to get your divorce. Once you have filed all your documents with the court you are simply required to wait until a judge has signed your divorce papers and returned them to you in the mail.
The Divorce Act allows special provisions for the support of children. The Federal Child Support Guidelines set out tables showing the minimum amount of support that must be paid for each child, depending on who has custody and the income of the non-custodial parent. Before granting a divorce, the judge must be satisfied that there has been compliance with the Guidelines.
If there are things that you and your spouse cannot agree on, you may eventually have to go to court to resolve these issues and to get your divorce. In some cases, there can be many court hearings, called motions, to resolve temporary issues about custody of children, child support and spousal support. There may also be a trial to make a final decision on any issues that have not been agreed on.
Applying for a divorce
The divorce application is a document that contains information about you and your spouse, including the grounds for the divorce and whether there is a marriage contract. It may also include claims under the Family Law Act relating to: questions of property, equalization of net family property, who will have custody of children, and who will live in the family home. It may also include claims for spousal and child support. Your divorce application is the main document that the judge considers when deciding whether to grant a divorce.
A divorce generally begins once an application is filed. An application can be filled out and filed by just one spouse or by both spouses. Spouses will normally only file together if they both agree on things such as how to split family property, who gets custody of the children and how much child and spousal support will be paid.
Where does the application get filed?
An application for divorce can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice.
Responding to a divorce application
If your spouse files for a divorce, you will be served with a copy of the application and financial statement. If you are served while you are in Canada, you will only be allowed 30 days to file a response with the court. If you are served while you are outside Canada or in the United States, you will have 60 days to respond. Most people consult a lawyer for advice and assistance to respond appropriately because the issues can be quite complex and the ramifications quite serious. If you do not respond within the appropriate time frame, or your response is not properly completed, there can be serious consequences. The court may proceed with the divorce without you and give your spouse everything he or she asked for in the application.
Your response must include the appropriate form and a financial statement. If you do not agree with everything stated by your spouse in the application, you must set-out the points you disagree with and the reasons why. Once this is done, you will serve your spouse with these documents, and he or she will have ten days to file a reply if he or she disagrees with any statements contained in your answer.
Case conference, discovery, settlement conference
Once all the proper forms and supporting documents have been properly completed, served and filed with the court, a case conference will be held. The conference gives the spouses an opportunity to discuss preliminary and procedural issues, such as disclosure, scheduling, and if children are involved, the appointment of a Children’s Lawyer.
After the case conference, the discovery process will begin. The discovery process gives the parties an opportunity to acquire documents from the other side (such as financial information), and an opportunity to ask questions about the materials provided and the statements made.
Once discovery is completed, the settlement conference begins. During this conference, the parties meet to try and resolve any outstanding issues so that the case does not have to go to trial. It is important to note that settlement conferences are conducted in the presence of a judge who will ask the parties questions, and give advice on how to settle the issues. If the parties reach a settlement agreement they will not go to trial.
If the parties do not reach an agreement, the case will proceed to trial. At trial, the judge will review documents, hear evidence from the parties and their witnesses, and will make a decision. The judge’s decision is binding.
When is a divorce final?
Once a judge has granted a Divorce Order, the divorce is effective on the 31st day after the date on which the order was made. This waiting period gives the spouses a chance to cancel the divorce if they decide to get back together. Either party in the divorce may request a Certificate of Divorce from the court, which is proof of the divorce, and sets out the date it was granted. A divorce granted under the Divorce Act has legal effect throughout Canada, and dissolves the marriage. For more information on divorce laws and how to get a divorce in Canada, visit the Department of Justice website. More information about divorce in Ontario can be found from the Ministry of the Attorney General.