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.
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
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.
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.
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.