He should pay for my lawyer’s fees!

Jill is really frustrated.  Jack has failed to provide the financial documentation she needs to determine his “true” income for support purposes.  As a result, Jill’s lawyer has recommended that she obtain a court order forcing Jack to provide the information.  Since it is Jack who is refusing to comply, Jill feels that he should be responsible to pay for all the legal fees associated with this court proceeding. However, Jill’s lawyer made it clear that although she will make the request, the final decision is within the judge’s entire discretion.  The judge may, or may not, make an “award of costs” forcing Jack to pay some or even (more rarely) all of Jill’s legal fees. 

 

The number one frustration encountered by a client in a separation process is when he/she is obligated to pay an important amount of legal fees to start a court proceeding just to compel an ex-spouse to do things that he/she should have been doing readily and willingly (i.e., providing financial disclosure, paying child support, paying their share of joint debts, signing a consent to travel abroad with the children, etc.). In Ontario, the court process is designed to promote settlement discussions between the spouses.   Thus, to move the matter towards settlement, the spouses have the obligation to participate in various types of conferences (i.e., case conference, settlement conference, and trial management conference) before they can proceed to adjudication processes (processes where evidence is presented to the judge and the judge imposes a decision on the parties).  While a conference is a less costly settlement oriented process than an adjudication process, judges do not usually award costs in the context of those conferences, unless it is very clear that one party has abused the process. 

 

As a result, it is important to understand that before engaging into a court proceeding (conference or adjudication), you must be able to pay for all the legal fees stemming from the process as you may, in the end, only be able to recover a slim portion from your ex. Court should always be the last alternative in a separation process because the cost of the process may very well exceed the benefit that you gain in the end.

I want my divorce! What is the difference between separation and divorce?

Jack has had it.  If there was ever any possibility that they would reconcile, any such hopes have come to an end when he heard that Jill had retained the services of a lawyer. Jack has told Jill that he wanted a divorce, to which Jill has replied that he would get it “when he faced up with his responsibilities as a father and a husband!”.  Jack wonders if he needs Jill's consent to get a divorce.

 

When two spouses part ways, it is very common to hear them say that they “want a divorce”.  However, in a separation process the divorce itself is really just a legal formality that will put an official end to the marriage. Getting to the point where you can get a divorce is what takes so long and can be very difficult because in most cases you will want to settle all issues by way of a separation agreement.  Getting such an agreement through mediation, collaborative justice, lawyer-to-lawyer negotiation or a court process is your first step. When an agreement is signed, you then know what your rights and obligations towards your ex and your children will be in the future.  When all issues have been settled, getting the divorce is truly just a "paper process" which, while it still requires court intervention (the divorce can only be granted by court order), will not require the spouses to attend court and will not involve months of legal debates.  If you have been separated for one year and all issues have been settled in a separation agreement, you are entitled to obtain a divorce order with or without your ex’ consent.

 

This said, there is really no difference between being separated (once a final agreement has been signed by both parties) and being divorced, except for some of the following differences:

1. If you are divorced, you can get remarried (something you cannot do if you are not divorced).

 

2. If you are divorced, you may no longer qualify as a beneficiary under your ex-spouse’s health plan or pension plan (although certain health plans allows it in certain circumstances).  Some pension plans also require that you obtain a divorce order to prevent your ex to obtain, upon your death, your pension plan benefits.

 

It is common to see couples that never get a divorce and only have a separation agreement.  There is no difference in the eyes of the Canada Revenue Agency between a separated or divorced individual.  Often times, people are emotionally exhausted and simply do not want to engage any further legal costs getting a divorce until someone decides to get remarried.  For many people, however, getting a divorce is necessary to cut the emotional ties to their ex and many people get their divorce immediately after having signed their separation agreement. So ultimately, getting a divorce is, more often than not, simply a question of personal choice.