Family law is most of my practice, since I started in Ottawa many years ago, so I'll talk a little about it.
When people ask me if they can get a divorce, my first question is if they have children. That’s because the Canadian Divorce Act requires parents to make reasonable arrangements for their offspring before they can get divorced. This usually means letting the court know who the children will be living with and – this is often a sticking point – who will be paying how much child support. So if the children will be living with the mother, the father will have to pay child support. The amount is usually set by the Child Support Guidelines, which is a table setting out the amount payable, depending on the number of children and the income of the paying parent. Sometimes, the parties can depart from the Guidelines, but they will have to give the court a good reason as to why they’re doing so, or the court will not grant a divorce.
Another issue is if they are separated. Most often, parties would get a divorce on the grounds that they have been separated for at least a year. That does not mean they have to live in separate homes; it means at least one of them want to live separate, and this is proven by showing that the person – usually both persons – will do their own things, like going out without the other, sleeping in separate bedrooms, cooking their meals separately, and so on. There is not one single factor that decides if they are separated; it’s all the facts coming in to see if they are living separate lives.
Other grounds for divorce are if one of the parties has committed adultery or if one of the parties has treated the other with great cruelty. Adultery is a relatively simple matter, if there are witnesses; cruelty, however, may be more difficult, because, even though the parties may be arguing and fighting, that would not be sufficient grounds to get a divorce before being separated for one year.
People should always resolve their issues before coming to a lawyer – that saves time and money. But they sometimes draft their own agreements. Don’t. There are always legal issues which lawyers are trained to watch out for, and so they should be the ones to do the agreement for the clients.
Most of the time, especially for uncontested divorces, the lawyers can redo the agreements, so there’s no harm done. But, given the potential pitfalls, they might as well put their thoughts down and let the lawyer do it properly.
Many people reading this would think that I’m just saying this because I want people to spend more money on lawyers. If they say so, then they’re right - I'll be honest about it. But my point is still valid.