- I want a divorce. Is the one-year separation period mandatory?
It depends on your current situation and your reason for seeking a divorce. If you’re being physically and emotionally abused by your partner, it may be possible to be granted a divorce more quickly. However, you have to prove these grounds in court, which requires convincing circumstantial evidence.
If, on the other hand, your only reason for seeking a divorce is some disagreement between you and your spouse, the one-year period must be fulfilled. Sometimes it is possible for the two of you to live under the same roof but be considered to be living separately for the purposes of divorce. Talk to your family lawyer for any questions regarding the Divorce Act.
- What are my chances of getting a divorce if my child support or custody has not been settled yet?
The court is usually reluctant to grant a divorce where the spouses have not yet devised a plan of support and parenting for the children, as this runs contrary to their interests.
In such cases, the court will adjourn the proceedings to give the spouses time to make reasonable arrangements for their child(ren)’s care.
- What can I do if I’m not happy with the court’s decision?
If you‘re not satisfied with the court’s judgment or believe it’s made a mistake, you can file an appeal to request a new hearing or change of order. Speak to a family lawyer about your chances of success and the deadline for making such an appeal.
- What is the difference between custody and access?
Custody is about the legal guardianship of a child, whereas access is about how much time a child spends with each parent. The access agreement can vary greatly. In some cases, children live mainly with one parent and visit the other regularly. In others, children divide their time equally between the parents’ homes.
- Can a spouse refuse access if child support is not paid in its entirety? What happens if my ex defaults on his support payments?
No, the custodial parent (or parent with the primary physical residency of the child) has no right to deny or limit the rights of the other parent.
When a court orders child support, it is automatically filed with the Family Responsibility Office (FRO). They then contact the parties and collect the support payment from the paying parent to administer to the recipient.
If there is no order and instead only a separation agreement, then the parties can file the agreement with the court who then forwards it to the FRO.
If the paying parent starts defaulting on their payments, the FRO has the right under the Family Responsibility and Support Arrears Enforcement Act, 1996, to:
- (1) seize bank accounts;
- (2) garnish wages;
- (3) cancel income tax returns and GST/HST rebates;
- (4) cancel passports and other federal licenses;
- (5) suspend their driving license;
- (6) garnish 50% of Employment Insurance, CPP, OAS, and other periodic federal payments.
If the FRO fails to enforce the support payments and the paying parent recurrently defaults, the last option would be to charge them in contempt of the orders pursuant to s. 49(1) of the Family Law Act. This may result in either a fine or a term of imprisonment.