Contested Divorce

Contested divorces in Ontario occur when spouses cannot agree on one or more issues related to their divorce, such as child custody, child support, spousal support, or division of property. This type of divorce can be more complex and time-consuming than an uncontested divorce because it often involves negotiations, court appearances, and sometimes a trial.

Key Aspects of Contested Divorces in Ontario:

Initial Steps:
- Filing for Divorce: One spouse (the applicant) files an application for divorce in the Ontario Superior Court of Justice.
- Serving the Documents: The applicant must serve the divorce papers to the other spouse (the respondent), who has 30 days to respond.
Response from the Respondent:
- If the respondent disagrees with any terms of the divorce, they file a response, outlining their position on contested issues.
Case Conferences:
- The court will schedule a case conference, where both parties and their lawyers meet with a judge to discuss the issues and attempt to reach a settlement. This is an opportunity to narrow down the contested issues.
Motions:
- If urgent issues arise (e.g., temporary child support or spousal support), either party can bring a motion to ask the court for a temporary order until the final decision is made.
Settlement Conferences and Mediation:
- The court may require settlement conferences or mediation sessions to encourage the parties to reach an agreement without a trial.
Trial:
- If the parties cannot reach an agreement on all issues, the case goes to trial. Each party presents evidence and arguments, and the judge makes a final decision on the contested issues.
Appeals:
- If either party is dissatisfied with the trial decision, they can appeal the decision to a higher court.
Costs:
- Contested divorces can be expensive due to legal fees, court costs, and the time involved. Often, the court may order one party to pay a portion of the other’s legal costs, especially if their conduct in the proceedings was unreasonable.
Timing:
- Contested divorces take significantly longer than uncontested ones, potentially spanning months or even years, depending on the complexity of the issues and the level of cooperation between the parties.
Best Interests of the Child:
- In cases involving children, the court prioritizes the best interests of the child in decisions regarding custody, access, and support.

Considerations:

Legal Representation: Given the complexity of contested divorces, it is highly advisable for both parties to seek legal representation.
Alternative Dispute Resolution (ADR): Exploring ADR methods, such as mediation or arbitration, may provide a quicker, less adversarial way to resolve disputes.

Issues in Contested Divorce

A contested divorce in Ontario involves spouses who cannot agree on one or more key issues related to the dissolution of their marriage. These disagreements require legal intervention to resolve. Below is a detailed layout of the common issues that arise during a contested divorce in Ontario:

Division of Property

The division of property is often one of the most complex and contentious issues in a contested divorce.

1. Net Family Property (NFP)

Definition: NFP represents the value of each spouse’s property accumulated during the marriage, minus debts and liabilities, as of the date of separation.
Equalization Payment:
- The spouse with the higher NFP pays the other spouse half the difference to achieve fairness.
- Calculation Steps:
  1. Determine valuation date: Usually the date of separation.
  2. List assets and debts: Each spouse lists all assets and debts on the date of marriage and separation.
  3. Calculate NFP: Subtract the value of assets at the date of marriage from the value at separation, accounting for debts.
  4. Equalization: The spouse with the higher NFP pays half the difference to the other spouse.
- Exclusions:
  - Certain properties are excluded from NFP calculations, including:
- - - Gifts and inheritances: Received during the marriage from third parties and kept separate.
    - Personal injury awards: Compensation for pain and suffering.
    - Life insurance proceeds: If designated to one spouse and kept separate.
Deductions:
- Debts incurred during the marriage are deducted from the total assets to calculate NFP.

1.2. Matrimonial Home

Definition: Any property that was ordinarily occupied by the spouses as their family residence at the time of separation.
Special Considerations:
- Equal Right to Possession: Both spouses have an equal right to live in the matrimonial home, regardless of ownership.
- Exclusion from Deductions: The matrimonial home’s value cannot be deducted even if owned before marriage or received as a gift/inheritance.
- Selling or Transferring: Cannot be sold or mortgaged without the consent of both spouses or a court order.
- Multiple Homes: There can be more than one matrimonial home (e.g., cottage, condo) subject to these rules.

1.3. Business Assets

Valuation Challenges:
- Complexity: Valuing a business requires expert assessments considering income, assets, liabilities, and future prospects.
- Division: Options include buying out the other spouse’s interest or distributing other assets to balance the value.
- Confidentiality: Protecting sensitive business information during disclosure.

1.4. Pensions

Types:
- Employer-sponsored pensions: Defined benefit and defined contribution plans.
- Government pensions: Canada Pension Plan (CPP).
Valuation and Division:
- Equalization: Pensions are considered family property and are equalized.
- Methods:
  - Immediate Settlement: One spouse pays the other a lump sum reflecting the pension’s value.
  - Deferred Settlement: Division occurs upon retirement or pension maturity.
- CPP Credits: Can be split separately through Service Canada.

1.5. Debts and Liabilities

Joint Debts: Both spouses are responsible for debts incurred jointly during the marriage.
Individual Debts: Debts incurred individually are generally the responsibility of the individual, but may affect equalization.
Secured vs. Unsecured Debts:
- Secured Debts: Tied to assets (e.g., mortgage).
- Unsecured Debts: Credit cards, personal loans.

Child Custody and Access

When children are involved, determining custody and access arrangements is paramount, always guided by the best interests of the child.

2.1. Types of Custody

Sole Custody:
- One parent has exclusive legal responsibility and decision-making power regarding the child’s upbringing.
Joint Custody:
- Both parents share legal responsibility and make major decisions together about the child’s welfare.
Shared Custody:
- A form of joint custody where the child spends at least 40% of the time with each parent.
Split Custody:
- Siblings are split between parents, each parent has custody of one or more children.

2.2. Decision-Making Responsibilities

Major Decisions: Education, health care, religion, and extracurricular activities.
Day-to-Day Decisions: Typically made by the parent with whom the child is residing at the time.

2.3. Parenting Time (Access)

Definition: The schedule outlining when each parent spends time with the child.
Types:
- Reasonable Access: Flexible and worked out between parents.
- Fixed Access: Specific schedule detailing dates and times.
- Supervised Access: Visits occur under supervision due to safety concerns.
Considerations:
- Child’s Age and Needs: Younger children may require different arrangements than older children.
- Parents’ Schedules: Work and other commitments.
- Geographical Proximity: Distance between parents’ residences.
- Child’s Preferences: Especially relevant for older children.

2.4. Relocation and Mobility Issues

Relocation Requests: When a custodial parent wishes to move with the child, impacting access.
Legal Requirements:
- Notice: The relocating parent must provide notice to the other parent.
- Consent or Court Approval: If the other parent objects, court intervention is necessary.
Assessment Factors:
- Reason for Move: Employment, family support, better opportunities.
- Impact on Child: Education, social connections, relationship with the other parent.
- Alternative Arrangements: Feasibility of maintaining relationship with non-relocating parent.

2.5. Parental Alienation

Definition: When one parent manipulates the child to reject the other parent.
Legal Response:
- Court Intervention: Courts can order remedies such as counseling, change in custody, or sanctions.
- Evidence Requirement: Demonstrating a pattern of alienating behavior.

2.6. Enforcement of Custody and Access Orders

Contempt of Court: Failure to comply with court-ordered arrangements can result in legal consequences.
Police Enforcement: In extreme cases, police assistance may be sought to enforce orders.
Modification of Orders: If circumstances change, parents can apply to modify existing orders.

Child Support

Child support ensures that children receive financial support from both parents after separation.

3.1. Determining Child Support

Federal Child Support Guidelines:
- Provide standard amounts based on the payor parent’s income, number of children, and province of residence.
- Income Calculation:
  - Sources: Employment, self-employment, investments, bonuses, and other income sources.
  - Imputed Income: If a parent is underemployed or unemployed intentionally, the court may assign an income level based on potential earning capacity.

3.2. Types of Child Support

Basic Support (Section 3):
- Covers fundamental expenses: housing, food, clothing, and basic necessities.
Special or Extraordinary Expenses (Section 7):
- Additional costs such as:
  - Childcare: Daycare or after-school programs.
  - Medical and Dental Expenses: Not covered by insurance.
  - Educational Expenses: Tuition, tutoring.
  - Extracurricular Activities: Sports, music lessons.
  - Post-Secondary Education: College or university costs.
Shared and Split Custody Adjustments:
- Support amounts may be adjusted based on the custody arrangement and time spent with each parent.

3.3. Duration of Child Support

Age of Majority: Typically until the child turns 18.
Extended Support:
- Post-Secondary Education: May continue while the child is pursuing education.
- Disability or Illness: Support may continue indefinitely if the child cannot become self-sufficient.

3.4. Modification and Variation

Changes in Circumstances:
- Significant changes in income, employment status, or the child’s needs can warrant modification.
Process:
- Agreement Between Parents: If both agree, support can be adjusted.
- Court Application: If no agreement, a court application is necessary.

3.5. Enforcement

Family Responsibility Office (FRO):
- Government agency responsible for enforcing support orders.
- Enforcement Measures:
  - Wage garnishment.
  - Seizing assets.
  - Suspending driver’s license or passport.
  - Reporting to credit bureaus.
- Arrears:
  - Accumulated unpaid support can result in additional legal actions and penalties.

Spousal Support (Alimony)

Spousal support aims to address economic advantages or disadvantages arising from the marriage or its breakdown

4.1. Entitlement

Criteria for Entitlement:
- Compensatory Support: To compensate a spouse who sacrificed career opportunities for the family.
- Non-Compensatory Support: Based on need, such as inability to be self-sufficient post-divorce.
- Contractual Support: Arising from agreements between spouses (e.g., prenuptial agreements).
Factors Considered:
- Length of marriage.
- Roles during marriage (e.g., primary caregiver).
- Age and health of spouses.
- Economic consequences of marriage breakdown.
- Standard of living during marriage.
4.2. Determining Amount and Duration
- Spousal Support Advisory Guidelines (SSAG):
  - Provide ranges for amount and duration based on:
    - Income of Both Spouses.
    - Length of Marriage.
    - Presence of Children.
- Types of Support:
  - Periodic Payments: Regular ongoing payments (monthly).
  - Lump-Sum Payment: One-time payment, finalizes support obligations.
- Duration:
  - Short-Term Marriages: Support may be time-limited.
  - Long-Term Marriages: Support may be indefinite or until a significant change occurs.

4.3. Tax Implications

Taxable Income:
- Periodic Payments: Typically taxable income for the recipient and tax-deductible for the payor.
- Lump-Sum Payments: Usually not taxable or deductible.
Proper Documentation: Essential to ensure correct tax treatment.

4.4. Modification and Termination

Change in Circumstances:
- Significant changes in income, employment, health, or remarriage can lead to modifications.
Termination Events:
- Agreed-Upon Date: As per court order or agreement.
- Recipient’s Remarriage or Cohabitation: May influence continuation but not automatic termination.
- Self-Sufficiency Achieved: Recipient becomes financially independent.

4.5. Enforcement

Similar to child support, spousal support orders can be enforced through the Family Responsibility Office (FRO) with measures like wage garnishment and asset seizure.

Other Contested Issues

5.1. Restraining Orders and Exclusive Possession

Restraining Orders:
- Purpose: Protect a spouse and/or children from harassment or harm.
- Conditions: Can restrict contact, proximity, communication.
Exclusive Possession of Matrimonial Home:
- Temporary Order: Grants one spouse the right to live in the home exclusively.
- Criteria:
  - Best interests of children.
  - Financial position of spouses.
  - Availability of other accommodations.
  - History of family violence.

5.2. Domestic Violence and Abuse Allegations

Impact on Custody and Access:
- Courts prioritize safety and may restrict or supervise access.
Evidence Requirements:
- Police reports, medical records, witness testimonies.
Support Services:
- Counseling, shelters, legal aid for victims.

5.3. Legal Fees and Costs

Allocation of Costs:
- Courts may order one party to pay all or part of the other’s legal fees based on:
  - Conduct during proceedings.
  - Reasonableness of positions taken.
  - Financial disparity between parties.
- Offers to Settle:
  - Rejecting reasonable settlement offers may influence cost awards.

5.4. Alternative Dispute Resolution (ADR)

Mediation:
- Neutral mediator assists in reaching agreements.
- Confidential and less adversarial.
Arbitration:
- Binding decision made by an arbitrator.
Collaborative Family Law:
- Lawyers and parties commit to resolving issues without litigation.
Benefits:
- Cost-effective.
- Time-saving.
- Greater control over outcomes.
Limitations:
- Not suitable in cases involving power imbalances or abuse.

5.5. Cultural and Religious Considerations

Cultural Practices:
- May influence decisions on child-rearing and support.
Religious Laws:
- Some couples may have additional religious divorce requirements (e.g., Jewish “Get”, Islamic “Talaq”).

5.6. International Issues

Interjurisdictional Disputes:
- When spouses or assets are in different countries.
Child Abduction Concerns:
- Hague Convention: Mechanism for returning abducted children to their habitual residence.
Enforcement of Foreign Orders:
- Recognition and enforcement of orders from other jurisdictions.

Procedural Aspects in Contested Divorces

6.1. Disclosure and Discovery

Financial Disclosure:
- Mandatory exchange of financial information, including income, assets, debts.
Affidavit of Documents:
- Listing all relevant documents in possession or control.
Examinations for Discovery:
- Pre-trial process where parties are questioned under oath.

6.2. Interim Orders

Purpose:
- Provide temporary arrangements for support, custody, and property issues until final resolution.
Application Process:
- Motions filed with supporting affidavits and evidence.

6.3. Case Conferences and Settlement Conferences

Case Conference:
- Early meeting with a judge to discuss issues and encourage settlement.
Settlement Conference:
- Focused on resolving issues before trial, with the judge providing guidance.

6.4. Trial Process

Preparation:
- Gathering evidence, witness preparation, legal arguments.
Court Proceedings:
- Presentation of cases before a judge who makes binding decisions.
Judgment:
- Court’s final decision on contested issues.

6.5. Appeals

Grounds for Appeal:
- Legal errors, misinterpretation of evidence, procedural fairness issues.
Process:
- Filing notice of appeal within specified timeframes.
- Appeal heard by a higher court, which may uphold, modify, or overturn the original decision.

Conclusion

Contested divorces in Ontario encompass a wide array of complex and interrelated issues. Navigating these requires a thorough understanding of family law, diligent preparation, and often, professional legal assistance. Parties are encouraged to seek amicable resolutions where possible, utilizing ADR methods to minimize emotional and financial strain. However, when disputes persist, the legal system provides structured processes to ensure fair and equitable outcomes, always keeping the best interests of any involved children at the forefront.

FULL REPRESENTATION

Introduction to Full Representation in Contested Legal Matters

Navigating the complexities of contested legal matters can be an overwhelming and challenging experience. Whether you’re facing disputes in family law, civil litigation, or other contentious areas, having a skilled and dedicated lawyer by your side is crucial to safeguarding your rights and interests.

At Aurigo Law, we understand that contested cases often involve high stakes, emotional stress, and intricate legal issues that require comprehensive and strategic legal representation. Our team is committed to providing you with full representation throughout the entire process, from the initial consultation to the final resolution of your case.

What Full Representation Means for You

Full representation means that our lawyers will handle every aspect of your case, ensuring that your voice is heard and your concerns are addressed at each stage. This includes:

Initial Consultation and Case Evaluation: We begin by thoroughly assessing your situation, understanding your goals, and advising you on the best course of action. We will explain the legal issues involved, potential outcomes, and the steps we will take to achieve the best possible result for you.
Strategic Planning and Preparation: Our lawyers will develop a tailored legal strategy based on the specifics of your case. We will gather and review evidence, prepare necessary documentation, and formulate persuasive arguments to support your position.
Negotiation and Mediation: In many contested matters, effective negotiation can lead to a favorable settlement without the need for a lengthy court battle. Our lawyers are skilled negotiators who will work to resolve disputes efficiently while protecting your interests.
Court Representation: If your case proceeds to court, we will advocate on your behalf in all legal proceedings. Our lawyers are experienced litigators who are prepared to present your case confidently and competently, whether in motion hearings, trials, or appeals.
Continuous Communication and Support: We believe in maintaining clear and open communication with our clients. Throughout the process, we will keep you informed, answer your questions, and provide the guidance and support you need to make informed decisions.

Why Choose Aurigo Law?

Our firm is dedicated to achieving the best possible outcomes for our clients. We combine legal expertise with a deep understanding of the challenges you face in contested matters. With a focus on personalized service, we take the time to understand your unique situation and fight vigorously for your rights.

When you choose Aurigo Law for full representation in your contested legal matter, you gain a trusted advocate who is committed to guiding you through the legal complexities with skill, integrity, and determination.