Dedicated to Family Law

Dedicated to Family Law.
Results Driven.
MADISON CENTRE
4950 Yonge Street, Suite 2408
Toronto, ON M2N 6K1

MISSISSAUGA EXECUTIVE CENTRE
2 Robert Speck Parkway, Suite 240
Mississauga, ON L4Z 1H8

Please contact us by phone at (416) 222-6980 or
email at info@nathenssiegel.com.

http://www.nathenssiegel.com

Can I prevent my spouse from obtaining a divorce?
(Part 1 of 4)
Can one spouse prevent the other spouse from obtaining a divorce if the
first spouse does not want to be divorced and wishes for the marriage to
continue?
The short answer is no, a divorce may be delayed but ultimately not
stopped as a matter of public policy.
In Canada, divorce is governed by the Divorce Act (Canada). Section 8 of the
Divorce Act provides that a divorce may be granted by a court on the
grounds that there has been a breakdown of their marriage. By far the most
common ground for the breakdown of marriage is that the parties have
lived separate and apart for at least one year immediately preceding the
determination of the divorce proceeding and were living separate and apart
at the commencement of the proceeding.
http://www.nathenssiegel.com/faq/faq-divorce-process#faqtxt15

(Part 2 of 4)
Nonetheless, Section 11 of the Divorce Act requires the court to satisfy itself
that reasonable arrangements have been made for the support of any
children of the marriage, and if such reasonable arrangements have not
been made, the granting of the divorce may be stayed until proper child
support arrangements are made.
Section 11 prevents “quickie” divorces in situations where there are
dependent children who require support. The applicant to the divorce
proceeding is required to swear an affidavit attesting to the amount of child
support he or she is required to pay under the Child Support Guidelines, or
is entitled to receive, and if he or she is paying or receiving less than the
amount required under the Child Support Guidelines, a detailed and
sufficient explanation for the discrepancy must be provided to the court
prior to the divorce being granted.

(Part 3 of 4)
Further, in a contested divorce proceeding involving many issues in dispute,
such as parenting issues, support issues, and property issues, courts will
usually not grant the final divorce until all of the “corollary” or other issues
aside from the actual divorce have been dealt with either by agreement or
final court order.
The Ontario Family Law Rules provide the court with the discretion to split
the divorce from the other issues and grant a divorce prior to the resolution
of the corollary issues. The court will not permit a party to proceed with the
divorce prior to the corollary issues being resolved if proper child support is
not being paid, as discussed above, or in situations where the other spouse
may be disadvantaged by the issuance of the divorce order prior to the
resolution of the corollary relief issues.

(Part 4 of 4)
A common situation where a spouse may be disadvantaged by a divorce
order is where one spouse is covered by the other spouse’s health and
dental benefits, however, once the divorce goes through he or she will be
cut off the benefit plan as he or she will no longer be considered as a
“spouse” under the benefit plan. If alternate arrangements are made, such
as the extension of health or dental benefits or additional support being
paid to cover the lost benefits, the divorce may be split from the corollary
issues and an early divorce order granted.
Ultimately, it is public policy in Canada that parties should not be forced to
remain married if there has been a breakdown in the relationship. Provided
that proper child support is being paid pursuant to the Child Support
Guidelines, the corollary issues have been dealt with by way or court order
or agreement, or if there is no disadvantage to either spouse to the granting
of the divorce prior to the resolution of the corollary relief issues, the court
will not stand in the way of a divorce.

What if I want to leave the marital home? Can I do
so without hurting my divorce case?
You are free to leave the marital home if you desire – but bear in mind that
this may not be the best idea, depending on the circumstances of your
divorce. For example, if you are seeking custody of your children, yet leave
them with your spouse in the marital home, this might make you look
irresponsible or uncaring for them in the court’s eyes. It may also result in
significant financial disadvantages for you and/or your spouse. On the other
hand, leaving the marital home may be the only option if you are receiving
physical or verbal abuse from your spouse.
If you’re considering moving out of the marital home on your own, speak to
your attorney first. Find out what the consequences will be in your divorce
case. There are some situations in which physical separation from the other
spouse is recommended, but others in which it might negatively affect your
chances of getting the best financial or custody settlement.
http://www.nathenssiegel.com/faq/faq-financial-issues#faqtxt7

In common law, are you entitled to the same as if
you were married?(Part 1 of 2)
In Ontario, the rights of common-law (including same-sex) partners and
married spouses on the breakup of their relationships are not always the
same.
The law makes no distinction between married and unmarried couples for
the purposes of child support. The rule is that child support is the right of
the child, regardless of whether or not the parents of the child are married.
Both the Divorce Act (Canada) and the Family Law Act (Ontario) provide
that married spouses are responsible for each other’s spousal support on
separation in most circumstances when there is need and an ability to pay.
There is no minimum time period for which the spouses must be married in
order to give rise to a support obligation.

In common law, are you entitled to the same as if
you were married?(Part 2 of 2)
For common-law and same-sex partners, the Family Law Act provides that
an individual may be responsible for the support of his or her ex-partner if
the partners have a child together or if they have cohabited continuously
for a period of not less than three years.
The Family Law Act requires that the value of property accumulated during
marriage, with a few exceptions, shall be divided equally between spouses
on separation. This is regardless of whether or not there was an equal
contribution to the acquisition of property by the spouses. On the other
hand, there is no presumption in law that the property of non-married
partners should be divided equally on separation. Property division will
depend on each partner’s financial contribution to the relationship and in
whose name the property was purchased.

How does the court decide custody and visitation? What can
I do to improve my chances of getting custody?(Part 1 of 2)
Working from the testimony of both parties (and possibly from that of the
children themselves), the court considers the following factors in deciding
the final custody and visitation arrangement: how the children and parents
interact with each other; how well the parents communicate and cooperate
on matters relating to the children; how well each parent addresses the
children’s needs; the stability and safety of each parent’s home
environment; the accessibility of education, clothing, food, and recreation
from each parent’s home; and the children’s own preferences, if they are
considered old enough to make a proper decision. The court generally
considers which parent’s environment better serves the best interests of
the children.
http://www.nathenssiegel.com/faq/faq-childrens-issues#faqtxt8

How does the court decide custody and visitation? What can
I do to improve my chances of getting custody?(Part 2 of 2)
If you want to get full custody of your children, be sure to remain a
responsible, caring, involved parent to them. Always be attentive to their
physical, emotional, and social needs, putting them ahead of your own;
don’t depend overly on your spouse for these things. If you have a work
schedule that allows you to take and active role in the overall care of your
children – while allowing you to earn enough money to do so – this is an
advantage. Involve yourself in all aspects of their lives, including
school, medical and dental care, and other activities.
Lastly, recognize that your children will continue to have attachments to the
other parent. Show that you will be cooperative with your ex in terms of
visitation, and encourage your children to have relationships with him or
her (unless, of course, your ex has a history of abuse or violence). As the
court will take note of the importance of both parents in the children’s
lives, so must you.

How can I increase my chances of getting full
custody of my boys?(Part 1 of 2)
Custody means the right to make major decisions about the best interests
of a child. A parent who has sole or full custody of a child is usually the
primary caregiver for that child and usually lives with that child for the
majority of the time.
Generally, courts will award sole custody to the parent who is more closely
connected with the day to day care of a child and who is more child-
focused. A father who takes an active role in the raising of a child, and who
has a work schedule that permits him time to look after the child on a day-
to-day basis, has an excellent chance of obtaining sole custody of the child.


How can I increase my chances of getting full
custody of my boys?(Part 2 of 2)
In order to increase your chances of getting sole custody of your boys, be
sure to be involved in all aspects of their lives — from school, to medical
and dental care, to extracurricular activities. Put the children’s needs ahead
of your own, and adapt your schedule to theirs, as much as possible.
Finally, be sure to recognize the importance of the boys’ mother in their
lives, and encourage the boys to have a healthy relationship with her. Courts
recognize the importance of both parents in a child’s life and will likely not
grant custody to a father or mother who prevents a child from having a
meaningful relationship with the other parent.


THANK YOU
Contact our Intake Clerk Maria Tsirikos at 416 222 6980 ext. 2900 for further
information or to set an appointment with a lawyer or e-mail us at
mtsirikos@nathenssiegel.com.
For more FAQs on divorce, child support / custody issues, collaborative
family law, divorce mediation, financial and legal issues, please visit
http://www.nathenssiegel.com/

Dedicated to Family Law

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