Court/Litigation

Markham Divorce Lawyer

Legal Separation

Ontario family law does not require that you file for legal separation from your spouse. This is a common misconception, as we often hear of “legal separation” with divorce cases in the United States.

In Ontario, it is only necessary for one spouse to decide to separate; you do not need your spouse’s permission. In many cases, the date of separation is clear and agreed upon by both parties. In many other cases, however, the date of separation is in dispute. In these instances, the Court will look at a number of factors to determine the date of separation. These factors can include:

  • When one spouse told the other that they wished to separate;
  • When the parties began to tell their family and friends that they were separated;
  • When the parties began to separate their finances;
  • When the sexual relationship/physical intimacy between the spouses ceased;
  • When one spouse moved out of the family home;
  • When the parties stopped engaging in social activities together (eating meals as a family, attending each other’s family functions).

Why is your date of separation so important? Family law uses the date of separation to determine a number of issues, including determining the length of marriage or cohabitation for spousal support purposes, as well as having a fixed date for the division of property, assets, and debts. This is known as equalization of net family property. The date of separation creates a “snapshot” of each spouse’s finances on the date of separation, and it is from that date that all financial figures will be drawn.

Divorce Orders

Divorce is only one aspect of any family law case. Generally there are a number of other issues, known as corollary issues, to be addressed before a divorce is granted. These other issues can include custody/access, child support, spousal support, division of property, and many others. Further detail regarding the corollary issues is available on our website. In special circumstances, a divorce may be granted before the corollary issues are resolved, but generally not before child related issues are fully resolved.

In most cases, once the corollary issues are resolved, then one of the spouses may apply to the Court for a divorce. If your matter was resolved outside of court, then a court form known as an Application (Divorce) will be prepared. If your matter has already been through the court process, then an Application will have already been prepared and a claim for a divorce already made.

There are several court forms that are required in order to be granted a divorce. Your lawyer will complete these forms, review them with you, and explain the step-by-step process for obtaining a Divorce Order. If the divorce is on consent, meaning the other spouse agrees, or if it is unopposed, meaning the other spouse will not object to the divorce, and barring any complications, then a divorce is generally granted by the court within four to six months.

Court Orders

If your case goes through the family court system, then a Judge will make an Order at the end of each attendance. Orders come in two forms: temporary and final.

Temporary Orders are often used as a stop-gap measure to keep the case moving forward or to address more immediate issues. These are often obtained at Case Conferences or Settlement Conferences (only certain types unless both parties consent) or at Motions (somewhat like a mini trial, but evidence is given in writing and not verbally).

Final Orders can be obtained in a few different ways. The first way is for the parties to agree to terms of settlement for all or part of their case, and those terms will be turned into a final Order. The second way is for a Judge to make a final Order at a Motion. The third way is for the case to go to trial, at which time any remaining issues will be resolved.

Changes To Old Court Orders

If you already have an Order and want to change some of the terms, this can be done either through negotiation with the other party, or by bringing a Motion to Change in court.

If you and your spouse are able to discuss and agree upon the terms to be changed, then your lawyer can prepare the paperwork to advise the court of the new terms.

If you and your spouse are unable to agree on the new terms, then your lawyer will prepare the paperwork for a Motion to Change, which will require the matter to return to court and have a Judge assist you and your spouse with arriving at new terms.


Contact Radhika Lakhani - family lawyer at Lakhani Law in Markham, ON for solutions that address all of your needs, wants and fears. We offer a wide range of family law services across Markham, Richmond Hill, Vaughan, Aurora, Newmarket, King City, Schomberg, Caledon, Uxbridge, Stouffville, Toronto, North York, Etobicoke, Pickering, Ajax, Whitby, Oshawa, Oakville, Milton.

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