FAQ

It would be a conflict of interest and contrary to Rules of Professional Conduct for one lawyer to represent both spouses in a separation or divorce case.

There is no requirement under Ontario law for either you or your spouse to be represented by a lawyer in a separation or divorce case. Each person is entitled to represent himself or herself. However, negotiating a separation agreement and/or going to court when you are not an expert in family law can prove to be extremely costly. There’s an old saying that only a fool has himself or herself as a client when going to court, and there is considerable truth in that saying. At the very least, you and your spouse should each have independent legal advice before finalizing any agreement between the two of you. Again, although this is not necessarily a legal requirement under Ontario law, each party getting independent legal advice is the smart thing to do, and it can help avoid mistakes that could cost you upwards of tens of thousands of dollars in the future.

It is impossible for lawyers to quote exactly the total costs of a person’s case early on, although often a ballpark figure can be given. Every case is different, and each case may bring a change in circumstances that would affect an initial quotation. After an initial meeting, your lawyer only has one side of the story and doesn’t know for sure the position of your spouse or the arguments he or she may present. Your case could start off as a simple matter and get more complicated as time goes on. However, you can expect to receive updates on how developments in your case will affect your total costs. Also, Zeidman Law Office provides its clients with guidelines you can use to keep your legal costs to a minimum.

If you are successful in court, the judge may award you costs against your spouse. The extent of the cost award will depend on many things, the most important of which usually is whether you made your spouse an offer to settle early on in the process and whether your success in court exceeds what you would have received had your spouse accepted that offer. The extent of the recover can also depend on whether you took any steps in the proceeding that lengthened or complicated matters.

Under certain circumstances, you are allowed to deduct all or a portion of your legal fees and disbursements from your income taxes. For example, fees associated with pursuing a spousal support award can be tax deductible. Contact one of our lawyers if you have specific questions, or speak to your accountant.

Zeidman Law Office provides its clients with guidelines you can use to keep your legal costs to a minimum. Some useful tips from our guidelines include the following:

prepare for telephone calls and meetings with your lawyer by reviewing your file and having all documents and information handy
when providing documents to your lawyer, make sure you have organized them first instead of paying for the law clerk to do it
focus on the legal issues when you are speaking with your lawyer; although other issues can be discussed, that’s not what you’re really paying for
provide your lawyer with the information he or she requests promptly
don’t make unnecessary calls to your lawyer or send numerous emails
don’t repeat information to your lawyer unless asked to do so

For a court to consider you to be living separate and apart, at least one spouse must have the intention to live separate and apart from the other. If that intention exists for at least one year without interruption, you have grounds for getting a divorce order. Even if you attempted to reconcile during that year by cohabiting for periods totaling not more than ninety days, you still have grounds for divorce (section 8(3)(b)(ii) of the Divorce Act).

Being separated does not require that you live in separate homes in order to be living separate and apart. Spouses can be living separate and apart under the same roof, depending on the circumstances. Factors that are considered in ascertaining if you are living separate and apart could include:

absence of sexual relations
sleeping in separate bedrooms
eating separately
not attending social functions together
not celebrating holidays together
each spouse becoming responsible for their own domestic services

Under Ontario law, there is no requirement for spouses to enter into a separation agreement when they are living separate and apart. However, in most cases, entering into a separation agreement with your spouse on fair and reasonable terms is a prudent thing to do in order to avoid possible misunderstandings and in order to protect your rights. A Separation Agreement has specific requirements under the Family Law Act in order to be valid. Consult one of our family law lawyers for assistance.

In Canada, you can obtain a divorce under the Divorce Act if there has been a breakdown of the marriage. Section 8(2) of the Divorce Act stated a breakdown of the marriage is established only if:

the spouses have lived separate and apart for at least one year immediately prior to the determination of the divorce proceeding
the spouse against whom the divorce proceeding is brought has, since celebration of the marriage:
- committed adultery, or
- treated the other spouse with physical or mental cruelty of such a king as to render intolerable the continued cohabitation of the spouses.

Even if you have met one of the three grounds for divorce, the length of a divorce case will depend on how busy the particular court is and mainly on whether and to what extent you and your spouse have any contested issues still to resolve, such as child custody, access, child support, spousal support, possession of the home, and division of property. In general, the more issues you have to resolve and the farther apart that you and your spouse are in settling the issues, the longer the process will take. In cases with contested issues, the process can take anywhere from a few months to a few years (although you may be able to obtain a Divorce Order even before resolving all issues if you split that issue from the rest call Zeidman Law Offices for further information). If there are no issues to resolve or if you have already reached an agreement on all issues, you can proceed with an uncontested divorce, which usually takes between 2 to 4 months to complete.

If you are concerned about your safety by staying in the house, then move or consult a Zeidman Law Offices lawyer about getting a court order requiring your spouse to move out. If safety is not a concern, you should consult a lawyer before moving out so you can be fully informed about how that decision could affect other issues arising in your separation (such as child custody, access, spousal support, who pays the expenses of the home, etc.). If you move out, your lawyer may not be able to obtain a court order allowing you to move back into the home later.

Ontario law does not entitle a legally married spouse to change the locks on a matrimonial home, even if title to the home is in that spouse’s name alone, unless there is a court order or separation agreement granting that person exclusive possession of the home. You should call a Zeidman Law Offices lawyer to discuss your options.

If the home is owned jointly by you and your spouse, there are provisions in the Family Law Act and Partition Act that allow you to apply to the court for the home to be sold even before a trial is heard. The court may order the sale even if there is still a dispute about how the proceeds of a possible sale should be divided between the spouses.

For jointly owned matrimonial homes, this is often done if an agreement is reached by the parties. However, there are no provisions in the Family Law Act or Divorce Act that empower a court to order that one spouse buy out the other.

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