Divorce Lawyer in Toronto: Ontario Divorce, Property and Parenting

Getting the divorce itself is often the easiest step. What takes time is deciding how the children will be looked after, how the house and accounts are divided, and whether support is paid or received. This page explains the Ontario process and the key rules so you can decide what to do first.

How divorce works in Ontario

Divorce itself is governed by the federal Divorce Act. Dividing property after marriage is mainly governed by Ontario's Family Law Act. A single case often uses both.

Residency requirement

An Ontario court can hear a divorce only if at least one spouse has been habitually resident in Ontario for at least one year. The law asks for habitual residence, not citizenship or permanent residence. How that is decided depends on the facts.

The ground for divorce and the one-year separation

There is one ground for divorce: breakdown of the marriage. The usual way to prove it is one year of separation. Separation does not always require moving out; in practice, spouses living under one roof but genuinely living separate lives can often count as separated. Getting back together for no more than 90 days in total, mainly to reconcile, does not interrupt the period. The other two ways are adultery, or physical or mental cruelty that makes living together intolerable. These are used less often and are harder to prove.

The usual steps

1. File a divorce application (one spouse can apply, or both can apply together)
2. The other spouse responds, or both set out arrangements in a joint application
3. Exchange financial disclosure: income, assets and debts
4. Negotiate or mediate; if you settle, sign an agreement, and if not, the case goes through the court process
5. The court grants the divorce, which generally takes effect on the 31st day after judgment

If you have already divorced in China, the picture is different. See: Divorced in China: Why Ontario May Still Deal With Your Property.

The four things a divorce has to settle

1. Parenting arrangements

The law no longer speaks of "custody" and "access". It uses "decision-making responsibility" (who makes major decisions about education, health and religion) and "parenting time" (where the child lives and for how long). The court's focus is the best interests of the child, not which parent "wins".

2. Child support

Child support follows the support guidelines tables. It depends mainly on the paying parent's income, the number of children, and how much time the children spend with each parent. You can get a rough range from our child and spousal support calculator.

3. Spousal support

Spousal support is not automatic. Whether it is payable, how much and for how long depends on the length of the marriage, the difference in incomes, who cared for children or gave up career opportunities, and other factors. The Spousal Support Advisory Guidelines (SSAG) are a reference, not law. For how retirement can affect support, see our case comment.

4. Dividing property

Ontario's equalization rules apply only to legally married spouses. Each spouse's net family property is calculated, and the spouse with the higher amount pays half of the difference to the other. A few points that often come up:

• Property owned before marriage, inheritances and gifts are generally excluded, but growth in value during the marriage counts
• The matrimonial home has special rules; both spouses have a right to live there even if only one is on title
• Property in China, such as real estate, savings or company shares, generally needs to be considered too; valuation and proof are usually the hard part

For a first estimate, try the property division calculator.

Watch the deadline. An equalization claim generally must be brought before the earliest of: two years after the divorce is granted; six years after separation with no reasonable prospect of reconciliation; or six months after a spouse's death. Missing it can end the claim.

Issues that often come up for Chinese families

Parents' money used to buy a home: loan or gift?

This is very common and is often the most contested part of property division. For how courts approach it, see our article on Lalli v. Lalli.

Marriage contracts, cohabitation agreements and separation agreements

Spouses can set out property and support arrangements in an agreement. It must be in writing, signed by both, and witnessed. Each spouse should have their own lawyer; one lawyer acting for both increases the risk the agreement is challenged later.

Language and documents

Ontario courts work in English. Chinese bank records, property documents and judgments usually need to be translated when used as evidence. Gathering them early saves time later.

Fees and timing

Cost and timing vary widely. The main factors are whether there is a dispute, whether there are minor children, whether assets are outside Canada, and whether the matter settles or goes to court. An uncontested divorce by agreement is far simpler than a contested case. After your initial consultation, we explain the fee arrangement in writing, so you know how fees will be charged before work begins.

How to choose a divorce lawyer

• Check the licence first. You can search the Law Society of Ontario's lawyer directory.
• Look for easy communication. Being able to explain your situation in the language you are most comfortable with matters a great deal.
• Ask for the fee arrangement in writing. How fees are charged, any retainer and likely extra costs should be clear.
• Ask what kinds of matters they handle. Family law works very differently from other areas.

How Tang Law can help

Tang Law is a Toronto family and real estate law firm. We handle marriage contracts, cohabitation agreements and separation agreements, parenting arrangements, child and spousal support, property division, and cross-border family matters. We work in English, Mandarin and Shanghainese, with Cantonese assistance available through our staff. You can start with a free 15-minute initial consultation to describe your situation and learn what options and deadlines to watch.

Frequently asked questions

Sources

• Divorce Act, s. 3 (jurisdiction and residence)
• Divorce Act, s. 8 (grounds for divorce)
• Divorce Act, s. 12 (when a divorce takes effect)
• Ontario Family Law Act, ss. 5 and 7(3) and related provisions