You’ve already read the first and second installment in our series on Getting Ready to Separate: What to Take With You and What To Do Before You Leave. In our third installation, we look at what might be the most difficult conversation you will ever have to have: Telling your spouse that you’re leaving.

No matter how prepared you think you are for this conversation, chances are that you and your spouse will experience many unexpected emotions. While each couple and each separation is different, the following tips can be helpful as you navigate this harrowing process.

1. Script your thoughts. Think about what you would like to say to your spouse. Write a list and organize your thoughts. Keep it as simple, straightforward, and unemotional as possible.
2. Choose your time.  Set a specific time to speak with your spouse. Leave enough time to have a conversation (i.e. not as your spouse is leaving for work or as you’re going out the door to a social function).
3. Choose your place. If you are even remotely concerned about your physical safety, consider speaking with your spouse in a public place.
4. Find a friend. Tell at least one person about your plan to leave. Ask them to follow up with you after you speak with your spouse as you will likely need support. This is also wise in terms of ensuring your safety.
5. Take time to process. After you speak with your spouse, you’ll both need time alone to process what has been said. Make a plan to leave immediately after you’ve finished speaking to your spouse. Stay with friends or family while the dust settles.
6. Set up support. Consider pre-booking a session with a therapist. You may need it after speaking with your spouse.
7. Be prepared. Follow the advice in the first and second installment of Getting Ready To Separate, and make sure your exit strategy is already in place before speaking with you spouse.

For more information on separation, divorce, and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

In the first installment of our Getting Ready To Separate series, we looked at 5 important steps you should take to prepare financially for the process of separating from your spouse.  Chances are, finances are at the forefront of your mind when you’re thinking of leaving a marriage. Separating is expensive. Moving costs, rent, incidental bills… it all adds up. Here are some additional items you should add to your pre-separation to-do list:

1. Take advantage of benefits. Especially if you’re covered under your spouse’s benefits plan, now is the time to use your benefits. See your GP for a physical. Have a routine dental cleaning or that root canal you’ve been putting off. Have your eyes checked by an optometrist and buy new glasses or contacts. Redeem any massage or physiotherapy benefits (you probably need a therapeutic massage anyway!) and fill all prescriptions as close to your date of separation as possible. All of these things add up, and you’ll be glad you don’t have to pay out of pocket for them when you have so many other new expenses.
2. Stock up on groceries. If you have a lower income than your spouse (and especially if you’ll be taking the children), having a fully-stocked kitchen will help while you’re trying to get on your feet. Groceries are expensive, and you don’t need another expense while you’re paying for rent, new furniture, car payments, or any other expenses associated with separating.
3. Make repairs and purchase anything you might need post-separation. This may include making repairs to your vehicle or replacing your old computer.
4. Remove any personal information from your shared computer. Clear your computer’s history and saved passwords, and record any information that you may need.
5. Sort and purge. Donate old clothes, books, and anything else that you don’t need or use. This will give you an opportunity to sort through what you want to take and leave, as well as downsize so you have less to move when the time comes.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

Navigating a divorce can take a toll on your mental and physical health. It’s important to remember to take care of number one (that’s you!) throughout the process. If you have children, you may be inclined to neglect your own needs to focus on theirs. While we always stress putting the needs of your children first, you can’t take care of them if you’re not healthy yourself. Here are some tips for staying healthy during your divorce:

1. Exercise. Taking care of your body while you’re dealing with emotional trauma is one of the most important things you can do. In addition to the general health benefits of exercise, taking some time to yourself several times a week to go for a walk or take an exercise class can help increase your cognitive function and provide an outlet for frustration. Furthermore, regular exercise can help you sleep better, and let’s face it: you need all the sleep you can get.
2. Ask for help. Whether you need help caring for your children, running errands, or a shoulder to cry on, now is the time to turn to your friends and family for support.  You may be surprised by the number of people who step up to help in your time of need.
3. Seek Professional Help. You may be dealing with issues that you are unable to manage on your own, or that your friends and family are unequipped to help you with. A counselor who specializes in separation and divorce issues can provide you with an impartial perspective and offer coping mechanisms.
4. Relax. Take some time for yourself every day to think, meditate, or clear your mind completely. Whether you enjoy cooking, reading, or even watching trashy TV, taking the time to quiet the tornado of thoughts in your head is crucial for your health. Book a massage, take your kids to the park, and make sure you take care of yourself.
5. Let Your Lawyer Help. Trying to navigate the legal system can be overwhelming. At MyOntairoDivorce.com, we have provided you with the information and resources you need to self-represent. However, completing these forms can be time-consuming, and if you’re already overwhelmed, it may be too much to handle. A qualified Family Lawyer can help alleviate some of the pressure.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Lawyer

In Canada, most divorces are granted on a no-fault basis. This means that a judge may grant you a divorce without you having to prove that your spouse violated the marriage contract, leading to the breakdown of the marriage.

A no-fault divorce is quicker, easier, and less expensive than a fault-based divorce. This is why the majority of divorces are granted on the grounds of the spouses living separate and apart for one year, as opposed to the fault-based grounds of adultery or cruelty. Especially in non-contested divorces or joint applications, a no-fault divorce allows the parties to apply together to have the court declare the breakdown of the marriage without having to present evidence (or worse, pay lawyers to present evidence).

The no-fault system severely limits the ability of a respondent spouse to challenge the application. If you’re the applicant, this is good for you, as once you have satisfied the court that you have established grounds for divorce by living apart for one year, your spouse cannot stop you from obtaining a divorce. On the other hand, if your spouse is the applicant and you want to work things out, there may not be anything you can do to stop the divorce from being granted.

It is always preferable to resolve as many issues as you can with your spouse before resorting to litigation. Work with your spouse to create a mutually-agreeable solution and apply together to obtain a simple or uncontested divorce. Take advantage of the no-fault system and save yourself a lot of time, money, and frustration.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

When you’re a starry-eyed bride or groom to be, the last thing you want to think about is Divorce. Real Talk: 50% of marriages end in divorce, and things can get ugly VERY quickly, especially when it comes to dividing up money and assets. You each want what you feel you’re entitled to (and maybe a bit more for your trouble), and often those entitlements overlap. Fighting tooth-and-nail over finances is a very expensive venture that could very well leave you with empty pockets.

The solution is a Marriage Contract, more commonly known as a Pre-Nuptial Agreement or a “Pre-Nup”. A Marriage Contract is a legal contract between spouses, and is written prior to the date of marriage. It typically addresses financial issues, including the management of assets and debts during the marriage, and how they will be managed should the marriage break up. A common goal of a Marriage Contract is to document an agreement that, upon divorce, each spouse will keep the assets they had before entering into the marriage.

Despite what you may have heard, Marriage Contracts are not just for celebrities and multi-millionaires.  What goes into a Marriage Contract is up to you- ultimately, it is a (legally enforceable) promise you make to each other, and its content will vary depending on your circumstances. Once you have agreed to the content of the Contract, you and your spouse each need to separately obtain Independent Legal Advice by consulting a Family Law Lawyer to ensure that you fully understand what you are agreeing to. If you skip this step, a court may invalidate your Marriage Contract due to “unfair pressure”; that is, that your spouse didn’t understand what they were signing and that you took unfair advantage. Save yourself time, money and frustration by making sure you do it right the first time.  If your circumstances change, your Contract can be altered by way of an addendum or cancellation.

Marriage Contracts are a sensitive topic that many couples don’t want to discuss.  Besides- your marriage is going to last, right? Maybe. Maybe not. One thing is certain: discussing and agreeing to a plan to deal with your assets in case of divorce isn’t pessimistic- it’s smart.  Emotions aside, marriage is a legal merging of assets. It’s up to you to take action to protect yours. It’s like the old adage says: better safe than sorry.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

In the province of Ontario, divorce rules can be complicated, depending on the length of the marriage, whether there are any marital children and the ability of the spouses to come to an agreement regarding property division and support rights. The following is a summary of the rules regarding obtaining a divorce.

One of the grounds for a divorce in the province of Ontario is the breakdown of marriage based upon the separation of spouses for more than one year. During this time, the spouses must live separate and apart, meaning that they may not cohabit for more than ninety days during this period. However, even if the spouses live apart, they are not legally divorced until they enter into a separation agreement or have a divorce judgment entered by a court of competent jurisdiction. The rules surrounding jurisdiction, as well as the specific grounds for divorce, are specified by the Divorce Act.

An uncontested divorce happens when one spouse files an application for divorce and the other spouse does not file an answer. In failing to file an answer, the spouse is essentially stating that he or she does not contest the divorce. However, for an uncontested divorce to be valid, the following must also be true:

• The grounds of divorce must be the breakdown of the marriage based upon one year of separation
• The spouse receiving the application for divorce was properly served

The parties must have resolved all corollary issues, such as child support, child custody, child access, child visitation, and spousal support, through a separate agreement or court order. Once an application for uncontested divorce has been received and the one year separation period has passed, the judge will grant the divorce judgment.

Contested divorces are more common, especially with couples who have been married for a longer period of time, have children, or have a large deal of property to divide. Contested divorces may be settled outside of court, or they may be carried out by following formal divorce procedures.

If spouses wish to negotiate a divorce settlement outside the courtroom, they may enter into a separation agreement. During negotiation, they discuss the legal rights and obligations that they wish to enter into upon their separation. Each spouse must provide financial information to the other spouse. By sharing this information, they will be able to make a fully informed decision about how to divide the marital assets. Once an agreement is reached, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a final divorce decree.

If the parties are unwilling, or unable, to come to an agreement outside the courtroom, they may obtain a divorce through the formal court process. First, the spouse petitioning for divorce must file an application for divorce and financial statement with the court. The application for divorce states the grounds for divorce and often includes corollary issues, such as requests for child custody, child support, spousal support, or the appropriate division of marital assets. This application must be “issued” by appropriately serving your spouse with the divorce papers. Once the spouse has been presented with the divorce application and financial statement, these documents must be filed with an affidavit for service with the court.

The spouse receiving the divorce application must respond by serving the petitioning spouse with an answer and financial statement. They must then file these documents with the court within thirty days of receiving the divorce application. The answer must include any points of disagreement between the two spouses. Once the answer is received by the petitioning spouse, that spouse must file a reply within ten days if he or she disagrees with any statements contained in the answer.

Once all the proper papers have been served and filed with the court, a case conference is held where the spouses will discuss preliminary issues, such as disclosure, scheduling, and appointment of a Children’s Lawyer, if there are children involved in the divorce.

Following this meeting, the parties begin the discovery process, through which financial documents are exchanged and the parties are given an opportunity to question the other party about any outstanding issues. If, during the discovery process, any issues must be resolved in a timely fashion, either party may bring a motion to resolve the issue. Examples of such issues include the failure of a spouse to pay interim child support that is necessary for the wellbeing of a child, or the failure of one of the parties to comply with all procedural requirements.

After the discovery process has been completed, the parties will meet for a settlement conference. During this conference, the parties will attempt to resolve any outstanding issues so that the case need not proceed to trial. This conference occurs in the presence of a judge, who will ask questions of the parties and, if necessary, provide advice as to how he or she would resolve the case. The parties need not wait until the settlement conference to reach a settlement agreement and, even if no settlement is entered into during the settlement conference, they may settle at any time prior to trial.

If the spouses are absolutely unable to reach a settlement agreement, the case will proceed to trial. During trial, witnesses will be examined by each of the parties, exhibits will be presented to the judge, and the parties will each argue their case. Following the trial, the judge will make an ultimate decision and enter a final judgment.

Divorce in Canada is not based upon the place of marriage, but rather based upon residency. Even if two spouses were not married in Canada, they can still be granted a divorce if they are residents of Canada for at least twelve months preceding the divorce application.

For more information on divorce and other family law matters, please visit MyOntarioDivorce.com or BermanBarristers.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

Getting a Divorce? Here are Answers to Frequently Asked questions about getting a divorce in Ontario.

1. What are the grounds for divorce?

The Divorce Act sets out only one ground for divorce: the “breakdown of the marriage”.

You establish a breakdown by showing one or more of the following conditions:

(1) you and your spouse have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(2) your spouse (not you) has committed adultery, or

(b) your spouse is guilty of “cruelty”. That is, he or she treated you with physical or mental cruelty of such a kind as to cause it to be intolerable for you to continue living with your spouse.

Divorce Act, ss. 8(1) and 8(2)(a), (b)(i), (b)(ii)

If you are seeking to obtain a divorce on the ground of adultery or cruelty, you do not have to wait a full year to obtain the divorce. However, bringing these claims can be extremely emotionally taxing on all involved and can be difficult to prove in court. If you wish to claim divorce on the grounds of adultery or cruelty, we would recommend that you consult with and retain an experienced Family Law lawyer, rather than self-represent.

2. I’ve just separated – can I start the divorce process now?

Yes – You can file an Application for Divorce before you have been separated from your spouse for a full year. However, you cannot file the Affidavit for Divorce until the full year has elapsed. Please note: The Divorce Act requires that you live “separate and apart” for at least one year – this does not necessarily mean in separate homes. Many people separate, but stay living in the same home, usually for economic reasons. However, they must be essentially living separate lives in the same home. For example, there is virtually no communication between them, they eat separate meals and occupy separate bedrooms.

3. What if I don’t know where my spouse lives, can I still serve a court document on him or her?

Typically you require a home address so you can serve documents on your spouse. First try searching on www.Canada411.com. If you can’t find his or her address, but know where your spouse works, your spouse can be served at work. If that doesn’t work, we or a process server can be hired to find your spouse and serve the documents. If this fails we will need to obtain an order from the court allowing some form of substituted service, such as serving the documents on a close relative of your spouse.

4. If I just want a divorce, do I have to go to court?

If you and your spouse agree to obtain a divorce, and there are no claims or issues that need to be resolved between you, you will not need to appear before a judge unless the judge has reviewed your divorce documents and he or she feels they need more information before they grant you a divorce. Often, however, the Court Office will contact you for this information, so there will be no need to appear before a judge.

Typically you only need to appear before a judge if the divorce is contested or the claims/issues are complex.

5. Can I get a divorce even if all the issues between myself and I are not settled?

Yes. You can sever the divorce claim from the remaining issues that need to be decided.

These remaining issues are called collateral or corollary relief issues. However, it is the duty of the Court to not grant a divorce until reasonable arrangements have been made for the support of the children. As well, if there is still an issue as to who is going to live exclusively in the matrimonial home (exclusive possession), you should wait to obtain the divorce until the issue is resolved. This is because once you are divorced you are no longer considered a spouse and do not have a claim for exclusive possession if you do not hold title to the home.

6. How do I sever the divorce claim?

You or your spouse will need to bring a Motion for Summary Judgment to separate the divorce claim from the other claims in the divorce application. It can be done as a simple, uncontested divorce if the consent of both parties is filed. If the consent of both parties is not filed, then the matter is generally heard by oral evidence before a judge. The other spouse will have the opportunity to attend to defend the motion if he or she does not wish for the divorce to be obtained prior to trial.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

We understand that people facing separation often don’t know what the next step should be or where they should turn to for help, and I also know that they want to be prepared for what lies ahead. So, I’ve written this Report to explain the 5 most important steps you’ll need to take in order to solve your divorce problems no matter how bad you think they may be.

The 5 Steps you need to take in order to have a successful divorce are:

1. Think about reconciling;

2. Collect your information and documents;

3. Learn about your legal rights and obligations;

4. Study the art of negotiation;

5. Consult with a lawyer on an “as-needed” basis.

For more information visit MyOntarioDivorce.com.

Sincerely,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

The Canadian government is taking action to improve access to the family justice system via a new initiative that hopes to encourage parents to comply with their family obligations. In addition to the government continuing to provide enforcement services directly to provinces and territories to help them collect child support for the benefit of families, they will also provide overall funding of $122 million over five years beginning 2009/2010 for family justice services such as mediation, parenting education, and child support recalculation.

In announcing this initiative, the Government of Canada was said to be demonstrating its “[continued] commitment to Canadian families and [the assurance] that those families experiencing separation and divorce [would] continue to be well served.”

Do you agree? Has the government maintained support for family law litigants?

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

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Consider the realities of splitting up: Think about your life now versus your life if you got divorced. Take into account your emotions, finances, living arrangements, work, children, family, and friendships. Write down the ways in which your life would change for the positive as well as the negative; this may help you see your options more clearly.

Take marriage counselling into account: Is the problem in your relationship one of communication, trust, or based on some other emotion that you believe you can still work through? If you haven’t already considered this option, there are therapists who specialize in helping couples during troubled times. If it’s possible, you should consider talking with a professional and asking your spouse if they would do the same.

Speak with your spouse: Tell them what you’re thinking and why. See if you can look for marriage counseling to resolve the issues that both of you may have. If you decide to leave your partner, communication will remain a key to resolving your issues along the way in a civil manner, so try to keep the lines of communication open.

All my best,

Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer

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