By: Claire McDowell 

There is a common misunderstanding of the process for Divorce in Ontario family Courts. In order to properly understand which of the available options in ending your marriage are right for you, whether Separation, annulment, or divorce, it is imperative that the Parties involved understand the difference. 

Annulment is an option available only to those who are legally married. An annulment is a Court Order that indicates that your marriage was not valid since its inception, and therefore the parties are not, and were never, legally married. There are numerous sets of circumstances that would allow parties to apply for, and be successful in receiving, and Order for an annulment. The primary examples of reasons that the Court has Ordered annulments include, but are not limited to the following: 

• One party was already married on the date of marriage;
• One of the parties did not have the capacity to consent to the marriage;
• One of the parties was underage at the time of the marriage and did not get the required parental consent;
• The parties are closely related either by blood or adoption; or
• The parties were wed in circumstances of duress or fraud.

If the above circumstances, or other such extenuating circumstances which would bring you within the purview of possibly qualifying for annulment, do not apply to you, then separation and divorce may be preferable options. 

Separation is, in Ontario, a unilateral process whereby one of two parties notifies the other, or the parties mutually agree, that they are no longer pursuing a romantic relationship. Parties may do so by notifying the other party directly, beginning to reside separate and apart, or otherwise. It is important to note that, for the purpose of separation, parties can reside “separate and apart” within the same home as long as there is an understanding that they are separated and their subsequent actions reflect that intention while cohabiting.  

Separation of parties often leads to parties negotiating and entering into a Separation Agreement. These agreements can address numerous types of issues, including but not limited to financial issues, equalization of assets and liabilities, spousal support, child support, child-focused issues, and many others. One of the most positive aspects of seeking a Separation Agreement rather than immediately seeking judicial intervention to resolve these issues is that you have the opportunity to negotiate and determine what works best for your family. Judges can be useful tools, but no one knows your family and their needs better than you and your spouse, and working to negotiate the outstanding issues can be preferable to putting your faith in a stranger’s decision. 

However, there are numerous situations which may required parties to bring forward a Court Application in lieu of finalizing a Separation Agreement. This is often the case when there is significant conflict between the parties that warrants a third-party intervenor such as the Courts, or there are significant child-focused issues that need to be addressed quickly and with some finality. Further, parties sometimes make best efforts to negotiate a Separation Agreement and are unable to resolve some, or all, of the outstanding issues. In the circumstances it is sometimes preferable to commence Court proceedings. It is imperative to keep in mind that the Court process can be lengthy, emotionally trying, and a significant expenditure, so parties should try and negotiate where possible. 

Finally, there is the option of divorce. Divorce is an issue that can be addressed while negotiating a Separation Agreement or making requests for Order from the Court, but does not in general refer to the process of negotiating the terms of a separation. Once parties have resided separate and apart for at least one year they are entitled to bring an Application to the Family Court for divorce, unless there are extenuating circumstances which would allow the parties to request that the process be expedited. Those reasons include adultery and/or cruelty. 

Further, it is often the case that the Court will not consent to grant an Order for divorce if it is found that the parties are still working on either negotiating or litigating extraneous issues, as outlined above. If that is the case, it may be preferable for the parties to wait until they either have a fully executed Separation Agreement or a Final Order with respect to their Court matter before they make application to the Court for a Divorce. 

There are many things to consider when deciding whether to opt for separation, annulment or divorce. Contact us today to schedule a consultation with the divorce lawyers at Gelman & Associates. With offices across Ontario, we prioritize our clients’ access to information and justice.

Disclaimer: For specific legal advice on your divorce matter, please consult with a family law lawyer. The content in this article is not intended to act as legal advice and is instead intended to act as a general overview of a legal topic.

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