Divorce: Expectation vs. Reality

Many recently first-time separated clients come to my office in Kitchener-Waterloo thinking about “divorce”. I often tell them that divorce is no big deal. The top separation issues are “kids, money and property”. If these have been settled fairly and legally, and the dissolution of the marriage is the only issue remaining, and if one or both spouses want a divorce, then we make a divorce application to the court usually on an uncontested basis. Lots of paperwork. Some legal expense. Takes a few months.

No big deal, right?

Now, here’s where it gets a bit complicated. Under Canada’s constitution, jurisdiction divided between the federal and provincial governments. Divorce is federally regulated. “Property division” is provincially regulated. “Kids” (see: parenting, time sharing, custody, access) can be either federally or provincially regulated, depending on whether there is a divorce claim. “Money” (see: child support and spousal support) can be federally or provincially regulated, for the same reason.

(If you have been in a common law relationship without marrying, you are under provincial legislation for parenting-related issues and support. The property division formula known as equalization of net family properties doesn’t apply to common law spouses.)

Ensuring children’s best interests

If there are children involved, before granting a divorce, a judge has to be satisfied that arrangements for care and decision making be in place and that they are in the child’s best interests. In the case of child support, a divorce court judge must “stay” (suspend) a divorce lawsuit if arrangements regarding children or child support raise concern. The divorce court judge must be satisfied that there are child support arrangements that comply with the law known as the Federal Child Support Guidelines.

In particular, if the person who has the support obligations is paying below the amount calculated under the Guidelines – or not paying support at all – the divorce application is stayed until proper support arrangements are made and followed.

Divorce as a matter of personal choice

Some of our clients want to break the marital bond at the very first opportunity, which is normally one year after separation. Some don’t particularly care and are content to maintain married status although they are separated. Some do not especially want to proceed with a divorce (for example, those who would cease to qualify for coverage under their spouse’s work health insurance plan).

Canada’s Divorce Act is being amended for the first time in nearly 35 years. The grounds for divorce – including the most common ground being 1 year separation – are not changing. That has always been the easy part. Rather the changes are directed to the “kids” and “money” issues that may be accompanying the divorce application.

Divorce itself… no big deal. The top separation issues of kids, money and property…. definitely!

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About Charles Morrison

Charles Morrison is a family law expert with over 35 years of experience. In addition to negotiating separation agreements and marriage contracts he is an enthusiastic supporter of Collaborative Practice. Charles regularly appears at the Ontario Court of Justice as well as the Superior Court of Justice locally and beyond.

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