The last thing that every married couple has in their mind is the word, divorce. When things don’t go according to plan or the relationship doesn’t last, the most common action taken by the husband and wife is to go this route.
However, when you have children in the picture, the whole process tends to be challenging. To help navigate through these difficult times, here is everything you need to know about child custody in Canada.
Child custody: What is it?
To put it across in simple terms, it is the process of determining who is in charge of taking care of the child. In most cases, the biological parents have the right to make any decision for their children, such as education and residence.
Types of custody
Given below are the most common types of custody, depending on how the judge makes his/her decision.
- Joint custody
In this type of custody, both parents are responsible for taking care of the child. They have to come to a mutual agreement, when it comes to making decisions, such as religion and schooling. Also, they must create a schedule, which allows both parents to spend time with the child equally.
- Shared custody
Shared custody is similar to joint custody, as both parents will be responsible for considering the child’s welfare. The child will have two homes, one in each parent’s property. The judge will prefer shared custody over joint custody over several reasons. For instance, if one parent is injured, ill, low financial stability, or away from home for long periods, the court will choose shared custody.
- Sole custody
Under sole custody, only a single parent has the right to take care of the child. In other words, the young one will have to live with the parent. At the same time, he/she can make all decisions for the child. The other parent may be able to visit the young one, but that depends on the guardian.
- Split custody
It is a type of custody which involves more than one child in the family. In this scenario, one parent will be responsible for taking care of one of the young ones, while the other guardian takes care of the remaining child.
Who determines which parent gets custody of the child?
Until the court comes to a decision, both parents have the right to take care of the child. The judge will always rule in favor the best interests of the child, when it comes to deciding which guardian gets custody.
If you are involved in a divorce, the best thing to do is hire a lawyer so that you get a fair representation in court!
When you have tried everything you can imagine to save your marriage, but it ends up failing, the only option remaining is to file for divorce. In Canada, when you want to legally separate from your partner, it comes under the Divorce Act.
Criteria for eligibility
To be eligible for divorce, you need to meet the following criteria:
- You and your spouse got married legally in Canada. If you married in another country, Canada should recognize the marriage.
- Your marriage won’t recover as it broke down.
- You and your partner have been living in one of the provinces of Canada for a minimum of 12 months or one year.
However, there is an exception to these requirements. For example, if you or your partner aren’t residing in Canada, the Divorce Act doesn’t apply in your situation. Due to this reason, you can nullify your marriage under Civil Marriage Act. To be eligible for divorce under this law, you need to meet the following requirements:
- Your marriage took place in Canada
- You cannot end your marriage as you, or your spouse is living in another country, which doesn’t recognize your legal union.
Grounds for divorce
There are three grounds for divorce under Canadian laws:
If your spouse had sex with another individual while married to you, it is known as adultery. You can file for divorce if this applies to your situation.
If you face mental or physical cruelty, which makes it impossible to live with your spouse, you can get divorced. These problems can arise from uncurbed drug use, continual verbal abuse, violence, and drunkenness.
When you lived apart from your partner for a minimum of one year, you can get a divorce. However, due to circumstances such as financial or family difficulties, you might choose to live with your partner. In this situation, it is essential you have evidence of your separation.
If your partner committed acts of adultery or cruelty, you need to provide proof, for your claim to be eligible in court.
How to apply for divorce?
Depending on where you live, you can visit bookstores, courts, or office/website of your province to obtain application forms for divorce. As the documents required, procedures followed, and administering the divorce is different for every territory, it is essential you ask a lawyer to handle your case. It’ll reduce your workload, making it easier to handle the situation.
One of the most challenging parts of a divorce is when you have to divide the finances between you and your spouse. For instance, when you or your partner has debts or other types of bills you share, you may not know how to split them. Here is a simple guide, which will help you understand the nuances of dividing finances during a divorce:
What should you do during a divorce?
When you have to deal with a divorce, the first thing you need to do is get your finances in order. In other words, you need to establish your personal and joint assets. Here are a few steps you need to follow to organize all your finances:
Ensure all your documents are in order
First, make a note of all the financial institutions you have an account with, such as investments, insurance, loans, savings, and credit cards. For each account, you need to have all the documents. For example, you need to have statements for your investments and loans, tax returns, and latest pay stubs, to name a few.
List out what you own and owe
Once you have the documents in place, the next thing is to take a look at what you own and owe. By following this technique, it becomes easier to divide the finances with your spouse. Joint accounts, investments, and insurance policies are some of the assets.
Similarly, credit card debt, personal loan, student loan, mortgage, and auto loan falls under what you owe, both as an individual and couple.
You will be held responsible for making payments for all the debts which are under your name. Even if you take a line of credit in both you and your spouse’s name, the financial institution will expect you to repay them on time. However, you can work with your partner to come to an understanding on how you can make the payments together.
However, if you have joint credit cards, it is vital that you remove your spouse from them immediately. Even if you are the co-borrower in this situation, you can still cancel the card. You will face numerous challenges when undergoing a divorce, especially when it comes to dividing your finances. To ensure that your rights are safe in this situation, it is always better to hire the services of a lawyer. He/she will have the expertise to handle this situation, with minimal.
As navigating through a divorce is challenging, you may have a lot of doubts about the procedure. However, keep in mind that the purpose of this article is to provide general information to all your problems. As every province in Canada has different rules, it is vital you ask for professional legal advice. Here are four common FAQs about divorce in Canada:
Can I get a divorce, even if I am not a Canadian citizen?
Yes, even if you are not a Canadian citizen, you can still apply for divorce in the country. At the same time, where you got married with your spouse doesn’t introduce any implications. However, it is essential that you and your spouse have been living in one of the provinces in Canada for at least a year, to be eligible for divorce.
If my spouse committed cruelty or adultery, will I get more from the divorce?
It is quite common to assume that if your spouse committed cruelty or adultery, you should get more from the proceedings. While it is true that these are legal grounds for divorce, it doesn’t mean the court will favor you, over your partner. The courts in every province will hold a fair trial to determine, various aspects of the divorce case.
Is it necessary to get a lawyer for divorce?
No, it isn’t necessary that you have to get a lawyer to file for a divorce. However, due to the difference in laws and how each province handles divorce cases, it is always better to obtain legal advice. Also, when you have to with property division and child custody, a lawyer will always protect your rights.
What if my spouse doesn’t want a divorce?
There will be times when your spouse doesn’t want to divorce, despite it being clear that your marriage won’t work. Fortunately, in Canada, you can still fill for one, even if the other party doesn’t believe in the same.
Unless there were acts of cruelty or adultery in your case, you only need to be separated from your spouse for a year to apply for a divorce. The only way your partner can object is if he/she has a legitimate reason. Also, there are two types of divorce – contested and uncontested. In the former, you and your spouse haven’t come to a mutual agreement to separate legally, while the latter is the opposite.
Hopefully, these four common FAQs solved all the doubts you have on divorce. If you want more information about this topic, feel free to go through our website!
The first thing that many people don’t understand about spousal support is what it is. Let’s set the record straight.
Spousal support refers to support received from a partner in the event of separation or divorce. In Ontario, spousal support applies to partners who are either married or in a common-law relationship. It doesn’t matter if the partners are of different sex or the same sex, spousal support can apply regardless.
The person who earns more pays money to the partner who earns less. If you receive support, you will be called the support recipient. If you pay support, you will be called the support payor.
The purpose of spousal support isn’t to deprive one party of money because they earn more. The purpose of spousal support is as follows –
- Recognize the different contributions of each partner in their relationship.
- Help a partner who lost out financially during their relationship. This can be explained by a partner not working because they had to take care of the children. Since the partner put his/her career on hold, he/she has lost out financially and may not be in a good position to support himself/herself financially.
- Help raise any children born from the relationship.
- Help a partner eventually be able to support themselves. In some cases, spousal support is used to pay for a partner to be able to go to school to learn new skills in order to get a job.
You don’t receive spousal support automatically. You can only receive spousal support if you meet certain requirements. The law also makes it clear that you must do everything in your power to try and support yourself as soon as you can after your separation.
Here are the different ways to be entitled to spousal support.
- If you had responsibilities such as taking care of your children or helping your partner build his/her career, you might be entitled to compensatory spousal support
- After your relationship is over, you don’t have any support and your partner’s income and assets can support you. This is called non-compensatory support.
- If you have a cohabitation agreement, marriage contract or another type of legal agreement which specifies who gets spousal support if you separate. This is known as contractual spousal support.
As you can see, it isn’t so white and black. There’s a lot more to spousal support than meets the eye.
In the event of a divorce, one of the first things you need to decide is if you need a lawyer. This isn’t a black and white question. There are a lot of things you need to consider before hiring a lawyer such as your situation as well as the laws surrounding divorce in your state.
The general consensus is that the less you rely on divorce courts and lawyers, the smoother your divorce will happen.
Do you need a divorce lawyer if you make decisions on your own?
If your partner and you are having an amicable divorce where you can speak to each other calmly on various issues such as children, support, or property, you probably won’t be any worse for wear at the end of your divorce.
Working together keeps both of you in control instead of giving control to attorneys in court. You will also save a lot of time as well as money by not involving any courts and lawyers.
Here’s when you might want a divorce lawyer
A divorce lawyer makes a lot of sense in certain situations. If you had an abusive marriage, then it makes sense to hire a divorce lawyer. If your spouse is being malicious, vindictive or is lying about certain things, it makes sense to hire a divorce lawyer.
If your spouse hires a divorce lawyer, it will be in your best interest to fight fire with fire aka hire your own divorce lawyer. If you have children or your financial issues aren’t easy to deal with, it makes sense to hire a divorce lawyer because you will be going through a tough time and it might be difficult to close your divorce without proper representation.
You can get a temporary restraining order if you think your spouse may harm your children or you or seize your property. Don’t take your children away without a temporary restraining order as you could be accused of kidnapping.
A mediator might work quickly and seamlessly to settle your divorce. They are better than divorce lawyers because they work with both spouses at the same time and can cut out any unnecessary delays. Mediators also don’t play for one side. They usually reach successful agreements much quicker than lawyers do.
If you’re still not sure about whether you need a divorce lawyer, it might be time to schedule appointments with multiple divorce lawyers. Listen to their input and make a decision after visiting many of them.