When spouses faced the unexpected (and sometimes unwanted) prospect of embarking on a divorce, they often operate under pre-conceived notions as to the timing and nature of the process. As I see it, here are the top 5 misconceptions about the divorce process in Ontario:
1) There is something called a “speedy divorce”
Although the process is certainly easier and quicker if the parties are generally agreed on their rights and outcomes and are willing to work toward a mutually-acceptable compromise, the vast majority of divorcing couples are unwilling or unable to reach a settlement point. Even if initial intentions are good, when it comes down to the more detailed aspects of unwinding their financial affairs and any issues relating to custody, couples usually find themselves in stark disagreement at some point, and have to resort to some sort of mediation, arbitration or – quite commonly – the Ontario family court. If the matter does proceed to litigation, then it usually takes at least one year and up to three years to achieve a resolution.
2) Traditional marriages and common law relationships are treated the same
Even in today’s more liberal society, most people still see a slight moral/religious/legal difference between a traditional formal marriage on the one hand, and living together common law on the other. For the purposes of legally unwinding either kind of relationship, the law still retains a distinction as well.
Specifically, the Ontario Family Law Act (which governs the property rights between spouses and those in a spouse-like relationship) contains two definitions of “spouse”: the first one relates only to the rights of traditionally-married people in their matrimonial home and matrimonial property, and deliberately excludes common-law partners. The second definition of “spouse” deals only with support obligations, and expressly includes common-law spouses (which is either a man or woman who have “cohabited for a period of not less than three years or who are in a relationship of some permanence, if they are the natural or adoptive parents of a child”).
Therefore, as compared to their married counterparts the rights of common law partners are still comparatively limited: they have the right to seek support from each other, but cannot seek an equalization payment or any possessory rights to the home that they may share. Many people are not aware of this distinction.
3) Mothers always get custody
There is a common misconception that after a divorce, mothers always get custody of any children of the marriage. This is not the case, and is certainly never a “given”. Instead, as part of the divorce process the courts are mandated by family legislation to make custody and access awards that are in keeping with numerous factors; primary among them is the “best interests” of the child. Similarly, there is a misconception that fathers can never get joint custody; this is also untrue. In fact, there is a discernible trend among Ontario family courts to start with something of an implicit (though not official) assumption that it is in the children’s best interests to consider joint custody first.
4) Family Court is designed for vindication
By necessity, the process of divorce is fraught with emotion. However, the legal machinery involved in formally unwinding a marriage involves a step-by-step process with certain evidence being produced by each party; ideally this requires the full co-operation of each, and the demonstration of some level of maturity. Divorce court is not a venue for former spouses to air their marital grievances about each other, and it is not an opportunity for the parties to have the judge make a determination of whose “fault” it was that the marriage ended. Marital misconduct, abuse, and infidelity are generally irrelevant to the factual determination of how the parties’ joint property should be divided and equalized, and to how much child or spousal support should be paid from one to the other.
5) Lawyers only make matters worse
Admittedly, lawyers sometimes have a reputation for adding an adversarial element to even the most routine of transactions and processes. Unfortunately in family law – and especially in the divorce process, which is already emotional and difficult in the first place – this unintentional effect can sometimes be exacerbated.
However, in Ontario there is something called Collaborate Family Law, which features the involvement of specially-trained lawyers and a team of professionals who participate to help the parties obtain a co-operative, cost-efficient, and relatively conflict-free resolution of their family law issues. Moreover, effective July 18, 2011, the Ontario Government has begun to implement a new program aimed at encouraging divorcing spouses to embark on mediation and avoid going to court to resolve their issues. As of that date, any couple seeking divorce is required to attend a mandatory mediation information session (and this will be the topic of an upcoming blog post).
With these common misconceptions in mind, it is important for divorcing parties to get accurate, thorough and fact-specific advice on the divorce process and their rights in connection with it. At Russell Alexander, Family Lawyers we can provide a full range of family law advice and can help you through your divorce with the utmost of legal competence and care. For more information, visit us at www.RussellAlexander.com