Divorce In Canada Divorce is a difficult process, especially if you have recently moved to Canada and you are unsure about what laws apply to you. Generally speaking, Canadian Divorce law is similar to the divorce law of the countries that form a part of the European Union. Canadian Divorce, however, is vastly different from many other parts of the world, such as Iran, mainland China, Saudi Arabia etc. Faced with divorce, you may prefer to obtain a divorce in Canada due to its features such as: Canadian Divorce law generally favours less financial secure spouse; There are no citizenship requirements to get a Divorce in Canada (however, you have to reside in the province for at least one year); Canadian judicial system is focused on the best interests of the children; Canadian Divorce Orders are recognized in a variety of jurisdictions around the world; This article will address the most common questions regarding separation and reconciliation in Canada. For more specific legal advice, please contact our firm, Bahmadi Law and we will be happy to assist you. What is a date of separation? How does it affect my divorce? Unlike many other jurisdictions, Canadian Divorce law does not require a reason for separation or divorce application. The courts, however, do require a specific date when the spouses separate and there is no reasonable prospect that they will resume cohabitation. The date of separation (also known as valuation date) can be the most important date in your divorce process. It determines many aspects of a contested divorce, for example: It can affect the way you and your spouse have to divide your property; It can affect your eligibility for support; A year must pass after the date of separation for the Ontario Courts to grant you divorce; The separation date marks the starting point for certain deadlines (called limitation periods); It is not uncommon for the spouses in a high conflict divorce process to argue about the date of separation and dedicate days of their trial time to determine this issue. Do I need to move out of our residence to separate from my spouse? The date of separation itself has a number of features which are discussed in various cases in great detail. Sometimes its easy to determine when the couple separates as one moves out of their common residence. It is, however, common that the separated spouses continue to reside together. There’s also no requirement to move out of the family residence. Spouses can be separate and apart under one roof. In reality, living separately and apart under one roof can become tricky. The courts review your post-separation conduct under the microscope to determine its context and the real date of separation. How do I convince the court that I am separated? The courts will generally look at the context of the spouses conduct during the separation and ask the following questions: Did you and your spouse exchange texts/emails regarding separation; Are you sleeping in separate bedrooms; Are you appearing together in social events; Are you taking vacations together; Are you taking common pictures or exchange messages of love and affection; Are you filing your individual taxes as married or separated. However, even if the courts determine that the spouses properly separated, Canadian Divorce law allows the courts to determine if the spouses to reconcile if certain conditions are met. What is reconciliation? How does it affect my divorce? Canadian Divorce law, specifically section 10 of the Divorce Act puts a positive obligation on the Court to consider if the parties reconciled or there is a reasonable possibility of reconciliation. This means that when the court reviews the evidence or even the attitude of the spouses and determines that they have reconciled or reasonably can reconcile, the courts must postpone the divorce proceeding and nominate a suitable person to assist you and your spouse with reconciliation. If this happens during your divorce process, not only will this delay and complicate your divorce process but also you will have to determine another date of separation. How does the date of separation affect my property rights? The separation date is extremely important in the context of division of property. It marks the date that the courts use to determine the value of your, your spouses and your joint property. Even if years pass from the date of separation, the courts will most likely use the date of separation as a reference for division of property. For example, if you had a car valued at $20,000 at the date of separation and sold it years after, the court will still likely to require you to include the value of the car on the date of separation in the division of property calculation. This is done to preserve fairness to spouses on the date when they separate and to avoid one spouse depleting their assets to avoid dividing the property. Looking at another scenario, if your spouse had $50,000 on his personal account on January 1 but cashed that amount on January 15, your spouse is likely to vigorously argue that January 15 was the date of separation to minimize the value of his property on the date of separation. For these reasons the determination of the exact separation date can become a highly contested issue which affects thousands to millions of dollars. How does the date of separation affect my support rights? Separation date also generally affect the duration of the spousal support in case of the married spouses. Generally, the longer the marriage is, the longer the spouse can receive support. In some cases, a spouse can argue that the marriage was extremely short and the parties were separated for many years in order to avoid their spousal support responsibility. For unmarried but cohabiting couples the date of separation is even more important as it also is used to determine the eligibility for spousal support. We will discuss the cohabitation in another article.

Family Law Procedure in the times of COVID-19 As Ontarians brace for the lasting economic and social impact of COVID-19. Legal community is faced with increased uncertainty. The offices are being closed, lawyers temporarily laid off and the court scheduling unclear. This short article aims to answer general questions regarding court operations and provide guidance to the family law only processes that can be brought before Ontario Family Courts in these trying times. How are the courts being managed? In Ontario the courts are allowed to manage their own process. This means that they can create rules and regulations on a local (municipal) level regarding procedural issues. These procedural rules are posted on the Superior Court website under Notices to Profession. The rules can vary greatly, for example some courts allow to book pre-trials online while others require special forms to be filed. Your family lawyer will know the process in each court so the deadlines aren’t missed because of technicality. Are the courts closed? After the severity of COVID-19 was recognized, Chief Justice issued a number of directions and orders. A number of notices to profession were issued as well. On March 15, 2020 the courts issued a notice to profession suspending all of the regular operations. In Family Law context this notice is without end date, meaning that the suspension could continue indefinitely. More specifically, the court adjourned (postponed) all non-urgent matters scheduled to be heard on or after March 17, 2020. This means that all non-urgent family law motions, case conferences, settlement conferences were postponed without a date. At the time of writing this article, court remains open for filing only. What if I have a deadline I am afraid to miss? On March 20, 2020 an Order was issued under the Emergency Management and Civil Protections Act. This order suspends all limitation periods (deadlines) from March 16, 2020 and until this order is cancelled. There are certain global deadlines in Family Law that should be met. For example, there is a strict deadline in Family Law Act which prohibits Applications for Equalization of family property after certain period of time has passed. In practice the courts have wide discretion when it comes to dealing with deadlines, and will likely review them case by case basis. In any event when dealing with deadlines consult with an experienced family lawyer to know your rights and risks. What’s happening in the courts right now? On April 2, 2020 the courts updated the Notice to Profession. The update facilitates court vide-conferencing or “virtual courtroom”. The courts started hearing cases over limited issues: Urgent Family Law Matters; Case Conferences over very limited issues (1-2 issue per case conference); The courts allowed service and filing of documents to be done via email, if at a later time the document must also be filed in person. What is urgent? Will my case fall into this category? The requirement for urgency is key and acts as a separate gateway when the Judges consider family law issues. In essence the judge first decides if your case meets the definition of urgency, if it does not, the court disposes of the matter without hearing substantial issues. Over the course of the past few weeks I have reviewed a myriad of cases where spouses argued that their matter is urgent. In their decisions, judges rely on two recent cases which examine urgency in light of COVID-19. First decision is Ribeiro v. Wright, 2020 ONSC 1829, released March 24, 2020. Justice Pazaratz set out principles to aid in the determination of urgency with respect to parenting issues under COVID-19 emergency. Justice Pazaratz highlighted that the aim of the courts is to maintain important parental relationships in a safe way. Justice Pazarats concluded that in most situations the courts will not intervene if the spouses have an existing parenting order or arrangement unless there’s an urgent situation relating to COVID-19. There are circumstances where the court may choose to intervene: The courts may intervene to postpone parent’s scheduled time with a child, for example if a parent is under personal restrictions such as self-isolation for 14 days, due to travel or exposure to the illness. In some cases, the courts may provide directions on direct contact with a child if there is a personal risk factors through employment or associations The courts may also choose to intervene if lifestyle or parental behavior in the face of COVID-19 may necessitate restrictions on parenting time. Justice Pazaratz highlighted that there would be zero tolerance for a parent who recklessly exposes a child to any COVID-19 risk. Finally, the courts may provide directions if there are risk factors related to the health or other circumstances of a child or other members of a household that may necessitate adjustments. This list is a non-exhaustive outline of the circumstances when the courts will likely decide that the matter is urgent . The Second case is Thomas v Wohleber, 2020 ONSC 1965. In this case Justice Kruz provided guidance on what constitutes urgency at the present time: The concern must be immediate and cannot await resolution at a later date. The concern must be serious in the sense that it significantly affects the health or safety or economic well-being of parties and/or their children. The concern must be a definite and material rather than a speculative one. It must relate to something tangible (a spouse or child’s health, welfare, or dire financial circumstances) rather than theoretical; It must be one that has been clearly particularized in evidence and examples that describes the manner in which the concern reaches the level of urgency. In summary, if your case falls within one of the exceptions outlined by Justice Pazaratz and follows the guidelines set out by Justice Kruz you may be able to bring an urgent family law motion by video or teleconference. Please contact our firm if you wish to consult with an experienced family law lawyer regarding your family law issue.