When parents of minor children divorce or separate, they must determine where the children will live, and how much time each parent will have with the children going forward. The terms ‘custody and access’ often appear together, but each has a specific meaning. ‘Custody’ refers to the ability of a parent to make major decisions for their child, with respect to health, religion, or education. Many parents will have joint custody, enabling them each to make these decisions together, but in some cases, parents split the issues they have ‘custody’ over, and in others, only one parent will have major decision-making power for the child. ‘Access’ refers to the time spent with a child. This refers to parenting schedules, including determining where a child will spend times such as holidays, school breaks and where they reside day-to-day. Ontario is moving away from the terms ‘custody and access’, however, in order to frame the situation as cooperative rather than adversarial. Instead, terms such as ‘parenting plan’ are becoming more common.
A couple must be separated for one year before a court will grant them a divorce on a no-fault basis. Separation does not necessarily mean that the couple must reside in separate homes for one year; it is possible to be “living separate and apart” as required under the Divorce Act while remaining in the same residence. This may involve maintaining separate sleeping quarters, separate schedules, and doing things such as eating meals and attending social functions separately. There are certain situations where a couple will not be required to live separately for one year prior to divorce, such as circumstances involving abuse or adultery. Virtually all divorces in Ontario, however, proceed on a no-fault basis.
An uncontested divorce means that the couple have agreed to a divorce. This may mean that they have also come to an agreement regarding all aspects of the relationship breakdown, including support, parenting and the division of property. In such cases, the couple can execute a separation agreement settling each of the issues. From there, one party will file an Application for divorce along with all necessary supporting documents with the court. So long as the other party does not respond to the Application, the court will assume the divorce is uncontested and will grant the order, presuming all requirements have been satisfied, including provision for child support for any dependent children.
A contested divorce usually means there are issues outstanding such as spousal or child support, parenting, or the equalization of property, where the parties have not come to an agreement. In these cases, the parties will resolve the issues in court unless they are able to reach a settlement or divert the case into an alternative dispute resolution process.
Once a spousal or child support schedule has been determined by a separation agreement filed with the court or court order, the payor cannot unilaterally decide to stop or reduce payments without applying for a change to the order. This is called a variation of support, and for a court to grant a change, the payor will generally need to demonstrate that there has been a material change to their circumstances. Common reasons to seek a variation of support include a disability that prevents the payor from working or requires a drastic reduction in income, being laid off from work or otherwise suffering a signification income reduction. In some cases, the circumstances of the payee might prompt a variation of support. For example, if the recipient of support has an increase in income or remarries or begins to cohabit with a new partner who has significant income or means, the payor may no longer be required to pay spousal support.
Many people with limited exposure to alternative dispute resolution may not be familiar with the differences between mediation and arbitration. However, the processes are quite different, particularly in the obligations they impose on the parties. A mediator acts as an experienced guide through the process of resolving a matter, helping to facilitate discussions and negotiations between the parties with the goal of reaching an agreement. An arbitrator, on the other hand, acts in a role similar to that of a judge. The parties each present their respective cases to the arbitrator, who will then render a binding decision.
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