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Why Do You Need A Divorce Lawyer?

It should come as no shock that divorce is a complicated matter. In most cases of divorce, issues of child custody and access, division of property, and child and spousal support are at the forefront. The law governing these issues is very complicated, and it requires a skilled Toronto Divorce Lawyer to help it all make sense. At LawyerSelect.ca, we work with some of the best Toronto Divorce Lawyers, and we’re confident that we can help you find the Toronto Divorce Lawyer that best suits your needs.


Due to the emotionally charged nature of the divorce process, it is of great importance that you have a Toronto Divorce Lawyer that will treat you like a person and take your feelings into account. Even though divorce is a legal process, it’s also an emotional rollercoaster. Your Toronto Divorce Lawyer will be your confidant and advocate throughout the entire process. 

Grounds For Divorce

So, in order to get a divorce you’ll have to file a court application seeking divorce. On the application it will ask you to state the ground on which you’re seeking divorce. You’re probably thinking… “…ground? We just don’t get along.” Fair enough, but under Canadian law, divorce can only be granted on one of three predetermined grounds. They are:

  • Cruelty.
  • Adultery.
  • Separation.

“Cruelty” Defined:

Under the current definition of the law, cruelty is said to occur when one spouse is mentally or physically abusive with the other to such extent that the two are no longer able to cohabitate. What’s important to note here is that incompatibility between you and your spouse will not suffice under this ground. As an example, if one spouse occasionally called the other a derogatory name, that amount of harassment wouldn’t reach the level of cruelty required under this ground. However, if the harassment was habitual, then a much stronger case can be made.


“Adultery” Defined:

This ground is met when one spouse engages in an extra-marital affair. Only the aggrieved spouse can file for divorce under this ground. Therefore, the adulterer-spouse cannot file for divorce using this ground. Nor can a joint application by both spouses be made under this ground. This ground is the exclusive domain of the aggrieved spouse. To be successful, the aggrieved spouse will need to prove the allegations of adultery. However, this is easier said than done as proving adultery occurred can be quite difficult as a result of the Ontario Evidence Act, which states that no witness should be asked or forced to answer a question that may reveal that they are guilty of adultery. Therefore, a judge usually relies on circumstantial evidence to infer evidence of adultery.


“Separation” Defined:

This is by far the most commonly used ground for divorce. The law defines separation as follows: the estranged spouses have been living separate and apart for a period of at least one year. After one year, the spouses can be said to be legally separated. It’s important to note here that what is meant by “separate and apart” does not necessarily require the spouses to reside in separate residences. In fact, an estranged couple can be said to be living separate and apart while residing under the same roof, but conducting their affairs independently of the other. They would also typically need to sleep in separate bedrooms for the entirety of that period.

Differences Between Separation And Divorce

It is very important for individuals contemplating divorce to understand the difference between being separated and being divorced. In law, they have completely independent meanings, and it is of great importance that you understand them going forward. We only briefly cover the differences in this article, but for a fuller picture on what to expect you should retain the services of a competent and compassionate Toronto Divorce Lawyer. At LawyerSelect.ca, we work with some of the best Toronto Divorce Lawyers, and we’re confident that we can help you find the Toronto Divorce Lawyer that best suits your needs.


Separation Occurs When…

The law states that separation occurs when at least one of the spouses has the intention to live separate and apart from the other spouse. It is important to note that it is the spouse’s intentions which is determinative here, and not their actions. With respect to living separate and apart, the law does not require the spouses to reside in different residences. It is within the bounds of the law for estranged spouses to live separate and apart while residing at the same residence. In coming to a determination as to whether two cohabiting estranged spouses are living separate and apart, the court will take several factors into consideration, which may include:

  • Whether they share a bedroom, or maintain their own.
  • Whether they share food, eat meals together, and share the chores.
  • Whether they have engaged in sexual relations during the period of separation.
  • Whether they share a social life together.


Unlike divorce, separation isn’t something that you petition the courts for. It usually happens organically when the estranged couple part ways when the relationship is over.


Once the period of separation has begun, there may be several legal issues that need to be addressed by both parties. A Toronto Divorce Lawyer can help you determine if there are issues of financial support and division of assets that need to be addressed during the separation period. If there are children involved, an agreement will need to be reached by the spouses on issues like a parenting schedule, a process by which major decisions affecting the children will be made, and how the children will be financially supported during this time.


During the separation period, if the spouses are in conflict over a certain issue or matter, it can be resolved in one of three ways:

  • Separation Agreement – the parties can negotiate an agreement that touches upon many of the issues surrounding separation.
  • Court Order – a judge can issue an order that deals with any number of matters, like forcing one or both of the spouses to do or refrain from doing a particular activity, or it can be the formalization of a shared custody arrangement.
  • Binding Arbitration Award – this is where an arbitrator makes an award in favour of one or both of the spouses regarding any number of matters.


Divorce, on the other hand…

Divorce is a marathon, not a sprint. It cannot be resolved quickly, and it is very formalized. The grounds for divorce requirement is probably the most formal of these rules. Unless adultery or cruelty are the primary grounds for divorce, then the estranged couple will have to wait out the one year separation period. Once that period is over, they can apply for a Divorce Order. However, they’re not guaranteed to receive said Order. Even if the separation period has elapsed, courts have shown an unwillingness to grant the divorce unless proper arrangements for the care of the children are in place. The courts want to ensure that children of divorce don’t suffer any more than they already are during, and after, the period of separation.


If the court grants the Divorce Order, then 31 days after the judge signs the order the spouses will officially be divorced. It is at that time that a spouse can obtain a Divorce Certificate, which acts as proof of the divorce and allows each spouse to remarry if they so choose.


Lastly, and in direct contrast with separation, which applies to both married and common-law spouses alike, only married couples can seek and obtain a divorce. If you're looking to obtain a divorce, we can help. At LawyerSelect.ca, we pride ourselves on the compassionate approach we take with our clients. We work with some of the Best Toronto Divorce Lawyers, and we'll gladly help you find one free of charge. 

Common Misconceptions Of Divorce

Women Always Win in a Divorce:

A common misconception among people is that the Family Law System, and the Family Courts favour women over men. This is false, both in theory and empirically. The court system is gender-neutral, and the Family Law Bench is composed evenly of male and female judges.


My Child Wants to Reside With Me... The Courts Will Agree:

This, also, is entirely false. In fact, there's a principle in family law called the "Maximum Contact Principle", which has as its focus the equal distribution of parenting and parent-child time together. It's based on the premise that a child will benefit most by spending equal amounts of time with both parents, provided they're good and decent people. As a result, the wishes of the child respecting who they'd rather live with are not usually given much weight, particularly in the child's early years.  Whether a child’s wishes will be given much weight by the court depends largely on the child’s age, level of maturity, and whether there's evidence of one parent negatively influencing the child, which is causing the rift with the other parent.


I Don't Really Need a Divorce Lawyer:

The law respecting divorce, as well as the Family Court system, are both legally and procedurally time consuming and complicated. Equally as challenging are the out-of-court negotiations that are held between the parties. This is because most people are unfamiliar with family law, and are, therefore, unaware of the rights they may have or the entitlements they may seek.


Those that represent themselves, whether in a court proceeding or during negotiations, run the risk of become overwhelmed, stressed out and lost. What usually results is they inadvertently hurt their own case by filing the wrong motion, or negotiating the wrong term. Don't prejudice yourself because you didn't want to spend the money on a lawyer. At LawyerSelect.ca, we can connect you with a Toronto Divorce Lawyer who charges reasonable fees, and accepts payment plans.

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