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FAQ: Separation & Divorce
Find out the answers to frequently asked questions ("FAQs") with regard to family law and other legal issues.
Foreign Divorce – Recognition
The case of Essa v. Mekawi highlight various essential themes pertaining to the recognition of a foreign divorce.
In this case, the wife asked the Court in Ontario to declare that the divorce granted in Egypt not be recognized by the Ontario courts. The husband, residing in Egypt at the time, requested the return of his children. The implications of recognizing the divorce would spell the defeat of most or all of the wife’s claims.
In his ruling, Justice Campbell conveys the only scenarios whereby a foreign divorce ought not to be recognized. Justice Campbell refers to Section 22 of the Divorce Act and specifically points to Subsection 22(3):
(1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.
(2) A divorce granted, after July 1, 1968, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so, on the basis of the domicile of the wife in that country or subdivision determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for all purposes of determining the marital status in Canada of any person.
(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.
Justice Campbell explains that the scenarios whereby a foreign divorce should not be recognized are limited to divorces where there was no notice given, where the foreign order is not in accordance with public policy, where the court in the foreign jurisdiction did not have proper authority, or where fraud is present.
To learn more about foreign divorce as well as the services provided by Krol & Krol, call 905.707.3370 to book a consultation.
Grounds for Divorce
In Ontario, the only ground for divorce is that there has been a breakdown of the marriage. (Divorce Act, section 8(1)) The Divorce Act defines a breakdown of a marriage to be one of three things:
- Both parties to the divorce proceedings have lived separate and apart for at least 1 year immediately before the determination of the divorce proceeding. The parties also had to be living separate and apart at the beginning of the proceeding;
- A spouse who has committed adultery; or,
- A spouse who has caused physical or mental cruelty to his/her spouse to the point where it would be deemed impossible for the parties to continue to live together.
Section 10 of the Divorce Act explains that the court has a duty to recognize when there is a possibility of reconciliation between the two parties to the divorce proceeding, and when present, must interfere and either adjourn the proceeding to allow the spouses the opportunity to reconcile, or nominate a “person with experience or training in marriage counselling or guidance” with the consent of both parties.
To learn more about the grounds for divorce in Ontario as well as the services provided by Krol & Krol, call 905.707.3370 today.
Joint applications for divorce and adultery
The case of Niyazov v. Tkatch is one of extreme importance to those filing a joint application for divorce.
Although, a court can grant a divorce based on the fact that one of the parties committed adultery, that only applies in uncontested divorce applications. However, when the parties file a joint application for divorce, if one of which committed adultery, the joint application will not be granted.
Justice McGee explained in Niyazov v. Tkatch that aparty may not file for divorce on the basis that he/she committed adultery due to the court’s duty to uphold the sanctity of marriage. As Justice McGee stated:
“The institution of marriage requires special protection. It is not merely the private concern of the parties, and although such sentiment may [ . . . ] at first glance strike the reader as antiquated, it remains alive and well within the present day preamble of the Family Law Act…….. The jurisdiction of the Court in divorce matters differs from that in other ligation adventures. The Court is vested with a peculiar duty of protecting the sanctity of marriage and the family in the exercise of its responsibilities, in so far as it can. I find that the relevant sections of both the Divorce Act and the Family Law Act operate to prevent a co-application from seeking an order for divorce based on adultery. Section 8(2)(ii) of the Divorce Act states that a divorce based on adultery can only be brought by the innocent spouse against the party that itself committed the adultery, and not by the guilty spouse. In a joint-application, the guilty party would be one of the co-applicants brining the application, which is not permitted under s.8(2)(ii).”
To learn more about joint applications for divorce as well as the services provided by Krol & Krol, call 905.707.3370 today.
What can I do if my spouse refuses to consent to my religious divorce?
If the parties were married religiously and there are religious barriers to divorce, there may be instances where one of the spouses will refuse to consent to the divorce. If one of the spouses refuse to consent to a religious divorce (thereby preventing the other spouse from leaving the marriage and obtaining a divorce), the other spouse may file an affidavit with a civil court conveying the controlling actions of the first spouse and that the first spouse is using this barrier to religious marriage to prevent the other spouse from remarrying.
Cases such as Bruker v. Markowitz have confirmed that the victimized spouse may bring an action in the civil courts for damages caused by the first spouse’s actions.
The victimized spouse may bring a motion to strike out any other pleading or affidavit filed by the controlling spouse or to dismiss the controlling spouse’s application altogether.
As was evidenced in Bruker v. Markowitz, a prime example of barriers to religious marriages occurs in the Jewish Religion. When a Jewish couple makes the decision to obtain a “Get” (divorce order) in order to remarry, they must go to a beth din. The beth din will only grant the “Get” if both parties consent to it.
In 2007, the SCC ruled in Bruker v. Markowitz,that the victimized wife was permitted to have her case for damages heard in the civil courts, and thereby the Court awarded her damages on account of the husband’s reluctance to consent to the “Get” and allow her to move on with her life.
However, recent case law has suggested that once the controlling spouse rectifies his/her behavior and removes such barriers to the religious marriage, he/she may move to have his/her original claims heard and adjudicated.
To learn more about religious divorce as well as the services provided by Krol & Krol, call 905.707.3370 today.
I am not a Canadian citizen; can I still file for a divorce in Ontario?
This question relates to an issue of jurisdiction.
Even if you do not hold Canadian citizenship, you may still be within your legal rights to file for, and obtain, a legally recognizable divorce in Canada. It is also possible to obtain a divorce in Canada even in the event that the marriage took place outside of Canada.
In most cases, in the event that you are not a Canadian citizen, you have to apply for a divorce in the province where either you, or your spouse, have been living for at least one year. More specifically, according to section 3(1) of the Divorce Act, “A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”
The court may require that you provide evidence of this. Not being able to provide such evidence may impair your ability to obtain a divorce within that province.
For more information on applying for a divorce, if you are not a Canadian citizen, contact Krol & Krol at 905.707.3370.
My spouse has changed his numbers and I do not know his current address nor do I have any means by which to contact him. The individual I sent to serve him also seems to be unable to locate him. Can I still obtain a divorce in Ontario?
If you are unable to locate your spouse and serve the divorce papers, it is still possible to obtain a divorce in Ontario. The way in which to properly proceed in such a situation depends on the unique circumstances pertaining to your individual case.
It is important that you use every method at your disposal to attempt to locate your spouse in order to serve them with the divorce papers. There are many different methods you may employ to do so. For example, you may decide to hire a company to locate the individual. If the company is unable to locate the individual, you should ask them for a report indicating that their search was unsuccessful.
In the event that you have used every means possible to locate your spouse, and still cannot seem to find a place to locate or reach him, in order to obtain a divorce in Ontario, you may be required to obtain an Order for either substituted service or dispensing with service. In this case, you most prove to the judge that you have exhausted all reasonable ways to contact and/or locate your spouse.
For more information on divorces, where you are unable to locate your spouse, contact Krol & Krol at 905.707.3370 to book a consultation today.
My spouse does not want a divorce. Does that affect my ability to divorce him/her?
A divorce is simply a severing of the marriage. It allows both parties to remarry.
It is not rare for one partner to seek a divorce, while the other individual wishes for the marriage to continue.
Whether or not your spouse agrees to filing for a divorce, will by no means affect your ability to obtain one.
There are different reasons for filing for divorce. The most common grounds is a one years separation.
You are entitled to separate from your spouse and do no require his or her permission. This can be done by physically residing separately. This can also be articulated through the use of a written letter from your lawyer to your spouse, indicating that the separation has occurred.
Following the completion of a 1-year separation period, then you are able to apply for a divorce with the court. The divorce is likely to be granted without the desire of the other party, unless there is a legitimate and valid reason for opposing the divorce.
For more information about applying for a divorce alone, contact Krol & Krol at 905.707.3370.
How to hire a divorce lawyer
You may have made the decision to separate from your spouse or you may simply be looking for information on your rights and obligations if you get a divorce; but now you are facing the sometimes daunting task to find and hire a divorce lawyer.
There are several reasonable ways to find and hire a divorce lawyer; however irrespective of which way you choose, always make sure to properly research any lawyer your choose to consult with.
One of the most common ways to find and hire a divorce lawyer is to obtain a referral from a trusted friend or colleague who has already gone through the process. When you take this route, you have the benefit of getting an opinion from someone you know and trust. This may save you a lot of future complications and may also save you the time and energy it takes to find and hire a divorce lawyer.
Another way to find and hire a divorce lawyer these days is to do an internet search for a divorce lawyer in your region. You can do a simple Google search, or you can also use specific websites such as Lawyer Ratingz to assist you to find and hire a divorce lawyer. These sites are helpful because you can find a lawyer in your geographic region and you can read reviews from former clients of the lawyer you choose. Of course, whenever you are hiring any professional, you should always do your own research into that person, and this is also true when it comes to internet referrals.
Finally, the Law Society of Upper Canada has a lawyer referral service. You can call the Law Society and they will refer you to a lawyer in your area that practices family and divorce law. In addition, the lawyers referred by the law society will provide you with a free half hour consultation with respect to your case.
The lawyers at Krol & Krol are experienced in all aspects of divorce law. To book a consultation with an experienced divorce lawyer at Krol & Krol, call 905.707.3370.
You have booked your first consultation with a family lawyer. Now what?
You have made the difficult choice to separate and have booked an initial consultation with a family lawyer. Now what?
In many family law situations, the initial consultation with a family lawyer will not be free of charge and will likely cost you several hundreds of dollars. If you are going to be paying for this time with a prospective family lawyer that you may wish to then hire, it makes sense to utilize this time in the most efficient manner possible.
A separation and divorce can be one of the most emotional and difficult experiences a person will ever have to go through. As a result, the prospect of taking this step and attending at a first consultation with a family lawyer can be a stressful and overwhelming thought for many people. This is especially the case if you have not had much experience dealing with lawyers and especially if you have never personally been involved in a potentially contentious legal dispute. The stress level can be exacerbated if you are consulting with a lawyer during or shortly after the catalyst or event that led to the decision to separate.
In order to ensure that your initial consultation is a productive meeting and that you get good value for the money you are spending on such a meeting, the following are several basic recommendations that are important to keep in mind:
Before your initial consultation, take some time to think about and formulate a list of topics that are important to you and that you wish to discuss with the lawyer. During the consultation, the family lawyer should ask you about the important facts of your situation. Based on what you tell the lawyer, the lawyer should then explain to you the law surrounding these issues and give you an indication of your rights and obligations.
If you have any court documentation that you have been served with, or any documentation which you feel may be pertinent to the meeting, make sure to bring these documents with you and bring them to the lawyer’s attention. Especially when it comes to being served with court documents, timing is crucial and can have a serious impact on your case. You want to ensure that the lawyer is aware of any deadlines with respect to filing documents or the dates of any upcoming court appearances.
It is always a good idea to prepare a list of questions that you wish to discuss during the meeting. An unfortunately common occurrence during an initial consultation is that the prospective client will forget an important question they had wished to discuss and will only remember what that question was once they have already left the lawyer’s office.
Lastly, make sure that you do not leave out any important details about your situation. Your discussion with the family lawyer you have consulted with will be most useful if the lawyer is aware of all the important facts of the case. Although many of the issues may be extremely private and you may feel embarrassed or uncomfortable discussing these topics, it is extremely important for you to be honest and candid with the lawyer.
In order to schedule an initial consultation with one of the experienced family lawyers at Krol & Krol, call 905.707.3370.
What are the obstacles or ‘bars’ to divorce in Ontario?
According to the Divorce Act, there are three bars or obstacles to divorce in Ontario.
The first bar to divorce in Ontario is collusion. Collusion is defined as an agreement or conspiracy where the Applicant is a direct or an indirect party attempting to subvert the administration of justice. For example, an arrangement to fabricate evidence to mislead the court would be colluding. Collusion does not include an agreement to the extent that it provides for the separation between parties, financial support, division of property or the custody of any child of the marriage.
The second bar to divorce in Ontario is if the court determines that reasonable arrangements for the support of the children have not been made. In other words, the court must satisfy itself that reasonable arrangements have been made for the support of the children before granting a divorce. If such arrangements have not been made, the court will stay the granting of the divorce until these arrangements are made.
The third bar to divorce in Ontario is condonation or connivance. In other words, if the divorce is based on the breakdown of the relationship established through adultery and the Applicant condoned or connived in the adultery, the Application may be dismissed. According to case law, connivance has been defined as a corrupt intention by a spouse in promoting the initiation or the continuation of the adultery of the other spouse.