Myth #1: There is Something Called a “Speedy Divorce”
Although the process is certainly easier and quicker if the parties generally are agreed on their rights and obligations and are willing to work toward a mutually acceptable compromise, the vast majority of divorcing couples are unwilling or unable to reach a settlement point. Even if initial intentions are good, when it comes down to the more detailed aspects of unwinding their financial affairs and any issues relating to custody or support, couples usually find themselves in stark disagreement at some point. When this happens, couples will often resort to some sort of mediation, arbitration or, quite commonly, the Ontario Family Court. If the matter does proceed to litigation, then it usually takes at least 1 year and up to 3 years to achieve a resolution.
Myth #2: Traditional Marriages & Common-Law Relationships are Treated the Same
Even in today’s more liberal society, most people still see a slight moral/religious/legal difference between a traditional formal marriage on the one hand, and living together in a common-law relationship on the other. For the purposes of legally unwinding either kind of relationship, the law still retains a distinction as well.
Specifically, the Ontario Family Law Act (which governs the property rights between spouses and those in a spouse-like relationship) contains two definitions of “spouse.” The first one relates only to the rights of traditionally-married people in their matrimonial home and matrimonial property, and deliberately excludes common-law partners. The second definition of “spouse” deals only with support obligations, and expressly includes common-law spouses (which is either a man or woman who has “cohabited for a period of not less than three years or who are in a relationship of some permanence, or if they are the natural or adoptive parents of a child”).
Therefore, as compared to their married counterparts the rights of common-law partners are still comparatively limited. They have the right to seek support from each other, but can- not seek an equalization payment or any possessory rights to the home that they may share. Many people are not aware of this distinction.
Myth #3: Mothers Always Get Custody
There is a common misconception that after a divorce, mothers always get custody of any children of the marriage. This is not the case, and is certainly never a “given.” Instead, as part of the divorce process the courts are mandated by family legislation to make custody and access awards that are in keeping with numerous factors; primary among them is the “best interests” of the child. Similarly, there is a misconception that fathers can never get joint custody; this is also untrue. In fact, the trend in Ontario Family Law litigation has been toward joint custody as courts most often find that such an arrangement is in the best interests of the children.
Myth #4: Family Court is Designed for Vindication
Divorce is fraught with emotion. However, there are step-by- step legal processes that must be followed. In order to be effective, each party must be willing to co-operate and provide full disclosure to the other party. Because fault for the breakdown of the marriage is generally irrelevant to the factual determination of how the parties’ joint property should be divided and equalized and to how much child and spousal support should be paid, parties are better served if they both co-operate and reach a settlement rather than spending money and energy being oppositional.
Myth #5: Lawyers Only Make Matters Worse
Admittedly, lawyers sometimes have a reputation for adding an adversarial element to even the most routine of transactions and processes. Unfortunately, in Family Law – and especially in the divorce process, which is already emotional and difficult in the first place – this unintentional effect can sometimes be exacerbated.
However, in Ontario there is something called Collaborative Family Law, which features the involvement of specially-trained lawyers and a team of professionals who participate to help the parties obtain a co-operative, cost-efficient and relatively conflict-free resolution of their Family Law issues.
Since Collaborative Family Law is aimed at arriving at a mutually agreeable solution out of court, all parties must agree prior to entering into the process that if a resolution is not reached neither lawyer can represent their respective client in a court proceeding. Although this could potentially result in additional expense, because parties who cannot agree may be forced to retain new counsel, it provides an atmosphere conducive to settlement as all parties involved have an interest in resolution.
The Ontario government has implemented a program aimed at encouraging divorcing spouses to embark on mediation and avoid going to court to resolve their issues. Any couple seeking divorce is required to attend a mandatory mediation information session.
With these common misconceptions in mind, it is important for divorcing parties to get accurate, thorough and fact-specific advice on the divorce process and their rights in connection with it.