Family & Divorce Law faq

If claims will be made for custody or access to the children, you should start the case in the municipality where the children ordinarily live. Otherwise, it can be started in the municipality where either party lives.

 

If there is both an Ontario Court of Justice and Superior Court of Justice in the municipality, you must start your case in the court that can decide your issues. Many family law cases can be started in the Ontario Court of Justice. However, if claims are being made about the property (including a matrimonial home) or divorce, the case must be started in the Superior Court of Justice.

If you do not agree with claims in the application or if you want to make a claim of your own, you have up to 30 days to respond (or 60 days if the application is served outside of Canada or the United States). The document that you prepare in response to an application is called an answer. If you do not file an answer, the applicant can ask the court for an order, based on the claims in the application, without hearing from you and you are not entitled to participate in the case any further.

The Family Law Rules set out the steps in the family court process. In most cases, the parties meet with a judge at least once at the beginning of the process to discuss the issues in dispute and how they can be resolved, and the steps that should be taken for the case to proceed (for example ensuring that financial information has been exchanged). This meeting is called a case conference.

 

Following the case conference, either party may bring a motion for a temporary order (for example for exclusive possession of a matrimonial home, custody of children or support). At a motion, a judge reviews the affidavit evidence from both parties and decides whether to make the order that has been requested.

 

If the case has not been settled, a case conference is usually followed by a settlement conference, which focuses on settling or narrowing the issues in dispute. The judge at a settlement conference may also be able to provide his or her view of how the case might be decided if it goes to trial.

 

If the parties cannot settle the case after one or more conferences have been held, a trial may be necessary. A trial management conference may be held in advance of a trial in order to determine how the trial will proceed.

 

Before each court attendance, both parties must serve the other party and file certain documents with the court. Many of these steps may be avoided if the parties agree to the outcome of the case. If an agreement is reached on a day when you are not in court, you can prepare and file Form 14B: Motion Form to request an order with the terms you have agreed to. This is called an order on consent.

The number of times parties will have to go to court and the length of time that it takes to resolve a case will depend on a number of factors, including how complicated the case is and whether the parties can agree on all or some of the issues.

Usually, you must attend a case conference before you can bring a motion to ask the court for a temporary order. However, if your situation is urgent, you can ask the court to hear your motion before a case conference has been held. If you are considering bringing an urgent motion, you should review Rule 14(4) of the Family Law Rules and the Guide to Family Procedures for the court where your case is being heard.

 

You should also call the court where you will be filing your motion to see whether you will be given time to attend court to have the motion heard or whether the documents will be reviewed by the court without you being present.

You should tell your lawyer or every other party as soon as possible that you will need to postpone the court date. This is referred to as an adjournment. To ask for an adjournment before your court date, you should serve every other party with Form 14B: Motion Form and file it with the court. On the motion form, you can indicate whether the other parties have agreed to adjourn the court date. If the other parties have not agreed, you or your representative will still have to go to court on the day that has been scheduled to explain why you need an adjournment. If you are asking for an adjournment on an emergency basis, contact the court office as soon as possible so that they can notify the judge of your request.

If you believe that the court made the wrong decision, you can file an appeal to request that the order be changed or that a new hearing be held. If you are considering an appeal, you should speak to a lawyer right away about whether it is likely to be successful and the deadline for starting an appeal.

In order to legally end your marriage, you must apply to court for a divorce. An application for divorce can only be filed in a Superior Court of Justice or Family Court branch of the Superior Court of Justice.

A divorce will not be granted unless you have been separated from your spouse for at least one year or you have established one of the other bases for a breakdown of the marriage (adultery or mental or physical cruelty).

 

If you have already been separated for at least a year, an application for divorce that does not include other claims, such as custody or access, support or division of property, can usually be completed within four to six months.

 

If your application includes other claims, the time that it takes to complete the case will depend on how complicated the issues are and whether the parties can agree on all or some of the issues.

In total, court fees are $632 to obtain a divorce in Ontario. The first payment of $212 is due when the application for divorce is filed which includes court fees of $202 and $10 that is collected for the federal Department of Justice. Additional court fees of $420 are paid before the divorce is reviewed by the court

 

Court fees may be paid by cash, cheque or money order payable to the Minister of Finance. If you are unable to pay the court fees, you may qualify for a fee waiver.

While you are able to file an application for divorce on your own, you should consult a lawyer before doing so. A lawyer can help you understand the issues that may be involved in your case and the effects that a divorce may have on your rights and obligations. For example, you may lose your entitlement to a division of property and your benefits under a spouse’s health insurance plan after a divorce has been granted.

In most cases, in order for a divorce to be granted, you must have lived separately and apart from your spouse for at least one year. While you can begin the divorce process before this period has passed, it cannot be completed until the year has passed.

 

Where another basis for the breakdown of the marriage has been established, such as adultery or mental or physical cruelty, the court can grant the divorce at any time, although additional steps will be necessary. You should speak with a lawyer for more information regarding the process for obtaining a divorce on one of these bases.

You may be considered to be living separately and apart while continuing to live in the same home, although it will depend on the facts in your case. Generally, the courts require clear evidence that spouses are no longer living together in a spousal relationship when they continue to live in the home. If you are not sure about whether you would be considered separated in your circumstances, you should speak with a lawyer.

You can ask the court for a divorce before the other issues have been decided by either starting an application for divorce or, if one has already been started, bringing a motion to ask for a divorce order.

 

However, the court may not grant the divorce before the other issues have been decided. For example, if you have children, a court will not grant a divorce until you have shown that you have made adequate child support arrangements.

A simple divorce is a request for a divorce only, with no other claims (such as custody, access or support). It can be prepared either by one spouse alone or by both spouses as a joint application.

 

If an application is prepared by only one spouse, it must be served on the other spouse after it has been issued by the court.

 

A joint application for divorce is a request that is made by both spouses for a divorce order, with or without other terms (for example agreed-upon child support payments). With a joint application, both spouses must complete the documents that are necessary in order to obtain the divorce.

No, only married spouses need a divorce. People who have lived together may, however, have other issues that need to be decided, including custody and access, support and division of jointly owned property. These rights and obligations are not always the same as they are for married spouses, particularly in relation to rights to property. You should speak to a lawyer about your rights and obligations arising from your relationship.

Joint custody means that both parents make major decisions about the children together.
Sole custody means that one parent makes most or all major decisions about the children.
Shared custody exists when children live with each parent at least 40 percent of the time. In these circumstances, child support may be calculated differently under the Child Support Guidelines.

Custody is about decision-making. Access is about how much time children spend with each parent. Children’s access arrangements can vary greatly. In some situations, children live primarily with one parent and visit regularly with the other. In others, children divide their time equally or almost equally between the parents’ homes.

Both the Children’s Law Reform Act and the Divorce Act require decisions about child custody and access to be made based on the best interests of the child. This generally involves a consideration of:

• the ability of each parent to care for the child
• the ties between the child and each parent
• the stability of the child’s current living arrangements
• the strength of each parent’s plan to care for the child in the future, and,
• in appropriate circumstances, the child’s wishes.

The law also states that the judge must consider any incidents of violence or abuse when assessing a person’s ability to parent.

My ex is not providing me with access to the children according to our court order, what can I do?
If a court order for access is not being followed, you can bring a motion to ask the court to require the other party to comply. If there are serious problems with access arrangements, the court can impose penalties and, if it is in the child’s best interests, make changes to the custody/access arrangements.

Federal authorities will likely require written confirmation of the other parent’s consent before allowing the children to be removed from Canada. Standard consent forms are available from the federal government. If the other parent will not give his or her permission, you may need a court order to permit the travel.

If your order is no longer appropriate, you can have it changed with the other parent’s consent. You can bring a motion to change on consent by filing a Form 15C: Consent Motion to Change with Form 14B: Motion Form. If you cannot agree to the change, you can serve and file Form 15: Motion to Change. Usually, the court will only change a custody or access order where there has been a significant change in the child’s circumstances.

Unless you have a court order or agreement that specifically says that you may move with the children, you should speak to your lawyer about the steps that should be taken before you finalize your plans. In most circumstances, your proposed move will be an issue for the court to decide if you and the other parent cannot come to an agreement.

Spousal support orders from Ontario courts are sent to the Family Responsibility Office (FRO) for enforcement. Information on the FRO’s enforcement of support orders can be found at:

 

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/owedSupport/index.aspx.

 

If support payments are not being made according to the terms of a court order or separation agreement that has been filed with the court, the FRO or the support recipient can take steps to collect the money that is owed. This may include getting payments directly from the support payor’s employer, bank garnishments or filing writs against property that the support payor owns. The FRO can also ask the court to suspend a payor’s driver’s licence if payments are not being made.

Support payments can be made directly to the recipient if he or she agrees not to have them made through the Family Responsibility Office (FRO). If a support order has been made, both parties must complete and sign a Notice of Withdrawal and send it to the FRO. The Notice of Withdrawal is available online at www.forms.ssb.gov.on.ca.

 

Payments must be made through FRO unless the parties have sent a completed Notice of Withdrawal to FRO.

To have support payments in a separation agreement enforced, you can file your agreement with the Ontario Court of Justice or the Family Court branch of the Superior Court of Justice. After the agreement has been filed with the court, you can forward the agreement with the registration materials to the Family Responsibility Office for the payments to be enforced. More information about this process can be found at:

 

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/owedSupport/index.aspx

You will need a new order to change the amount of the payment that is being made pursuant to a court order or separation agreement that has been filed with the court.

 

If you and your ex agree on the revised amount, you can bring a motion to change on consent by filing a Change Information Form (Form 15A) and a Consent Motion to Change (Form 15C). If you can not agree about what the payment should be, you can bring a Form 15: Motion to Change to request a change in the support payment. You will also have to file a Change Information Form (Form 15A). Click here to see the forms.

 

To have the spousal support changed, you will need to show the court that there has been a significant change in circumstances that affects the amount of the payment that is being made.

 

If the Family Responsibility Office is enforcing the support order, they will continue to collect the current payment until the order has been changed.

Orders that were made by a court in another province or territory under the Divorce Act (link to Justice law website) are automatically recognized in Ontario. To have these orders enforced in Ontario, they must be registered with the Family Responsibility Office.

 

Orders that have been made in another province or territory in Canada under provincial or territorial legislation must be registered in an Ontario Court before the order can be enforced. This process is governed by the Interjurisdictional Support Orders Act.”> https://www.ontario.ca/laws/statute/02i13″>Interjurisdictional Support Orders Act.

 

You can find more information on this process at:
http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/General/livingOutOfOntario.aspx.

If the country where the spousal support order was made has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a reciprocating jurisdiction An order from a reciprocating jurisdiction can be enforced in Ontario, but first, it must be registered in an Ontario court.

 

You can find more information on this process at:

 

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/General/livingOutOfOntario.aspx.

If a province, territory or country has entered into a formal arrangement with Ontario to enforce each other’s support orders, they are known as a reciprocating jurisdiction. An order from a reciprocating jurisdiction can be changed under the Interjurisdictional Support Orders Act.

 

For more information about changing a support order from a reciprocating jurisdiction see:

http://www.mcss.gov.on.ca/en/mcss/programs/familyResponsibility/General/livingOutOfOntario.aspx

It’s hard enough when a family breaks up; however, when one person lives in a different province, territory or country, there are a new set of challenges.

 

The Ontario Family Responsibility Office has enforcement agreements with every Canadian province and territory, every state in the United States of America, and approximately 30 other countries. These are known as reciprocating jurisdictions. FRO works with over 100 reciprocating jurisdictions.

 

The Interjurisdictional Support Orders Act, 2002 (ISO Act) makes it possible for FRO to enforce, and for you to get, change and register support orders for enforcement when one person lives in Ontario and the other lives in a reciprocating jurisdiction.

If the other person lives in a reciprocating jurisdiction, you can usually (without having to travel to that area):

• get a support order
• change an existing support order, or
• enforce a support order.

The person in the reciprocating jurisdiction can do the same.

 

For example, a person living in Ontario can begin the process here. The order can be made, changed or enforced in the province, territory, state or country where the other person lives.

 

Note: This does not apply to support applications made under the federal Divorce Act. Divorce Act orders do not need to be registered in an Ontario court. They can be sent directly from the support recipient or from the local family support enforcement program to FRO for registration and enforcement.

 

If the other person lives in a country that is not a reciprocating jurisdiction:
If the other person does not live in a reciprocating jurisdiction and you want to make a support order or change an existing support order you will need to talk to a lawyer about your options.

 

Registering support orders

A support order made in a Canadian reciprocating jurisdiction must be registered for enforcement in the Ontario court. Once registered in court, the support order will be sent to FRO for registration. If you would like to do your own enforcement, you can contact us to withdraw from the program. (Note: Quebec does not enforce Separation Agreements/Domestic Contracts or Paternity Agreements; it requires a support order.)

 

A support order made in a reciprocating jurisdiction outside of Canada must also be registered for enforcement in the Ontario court. In these situations, the court gives the support payor a notice of the registration. The notice or registration advises the payor that they have 30 days to ask the court to set aside the registration. This means that they can ask the court to decide that the support order cannot be enforced in Ontario.

 

Changing support orders

If you (the applicant) want to get or change a support order, you must fill out a set of application forms either a standard application form or a support variation application form. You can get these forms online (see link below under Learn More) or from the courts, Family Law Information Centres and Legal Aid offices.

 

Many of the forms are sworn documents. This means you must sign them under oath in front of a Commissioner of Oaths or Notary Public. Completed forms should be sent to the appropriate office in the jurisdiction where you live. For example, if you live in Ontario, the forms are sent to the Ontario Family Responsibility Office (address below). We then forward the forms to the jurisdiction where the other person (the respondent) lives.

 

A court hearing is held in the respondent’s jurisdiction. The respondent goes to court and files a matching set of forms. The judge should then have a full picture of the family situation and can make an order or change an existing one. If the judge grants the support order, the Family Responsibility Office will send a copy to you.

Some jurisdictions require a provisional order to make or change a support order. A provisional order has no legal effect until it has been confirmed by a court in the reciprocating jurisdiction.

 

The following jurisdictions require provisional orders:

 

• United Kingdom (consisting of England, Scotland, Northern Ireland, Wales, Gibraltar, Guernsey, Alderney and Sark, Jersey, and Isle of Man)
• New Zealand
• Germany
• Cayman Islands
• Hong Kong, and
• Quebec.

If you or the other person live in one of these jurisdictions, contact the Ontario court nearest to you for more information.

 

Currency exchange rates

Changes in currency rates may affect your support payments.
If your support order was made outside of Canada and then registered in Ontario, the order is converted to Canadian currency using either:

 

• the exchange rate that was in effect on the date of the order, if available from the Bank of Canada, or
• the exchange rate from the date the order was registered in Ontario.

The converted amount is the amount that the Family Responsibility Office can enforce.

 

**source: Ontario ministry of community and social services