Frequently Asked Questions on Divorce
Other Family Law Issues
Can I get a Restraining Order against my
Spouse?
Pursuant to "Section 46 of the Family Law Act a court can make an order
restraining the applicant's spouse or former spouse from molesting, annoying or harassing
the applicant or children in the applicant's lawful custody or from communicating with the
applicant or children except as the order may provide."
A restraining can be obtained on a motion within an original court application.
Should there be a matter of urgency an ex parte order may be obtained.
A person who contravenes a restraining order is guilty of an offence under Section
46(2) of the Family Law Act and is subject to a fine or imprisonment.
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What is an Annulment?
An Annulment of marriage is dealt with under the Annulment of Marriages Act (Ontario).
The Superior Court of Ontario has a jurisdiction to deal with the annulments.
Grounds for Annulment deal with fraud and lack of capacity and non consummation of the
marriage.
Fraud and Lack of Capacity
This can deal with situations where there is an intentional perversion of the truth, or
a concealment of something which should have been disclosed. Bigamy, under age marriages,
where parties did not consent due to mental incapacity or drunkenness, etc. can be grounds
for an annulment.
Inability to Consummate the Marriage
The condition of impotency may be found in a physical or a psychological disorder. The
incapacity may stem from a structural defect or of a physical nature.
An annulment may also be obtained if the disability arises from a mental condition that
creates in the mind of a spouse an aversion, an invincible repugnance to the physical act
of consummation resulting in a paralysis of the will.
In either case, the impediment to consummation must be such to render complete
intercourse impracticable.
The mere refusal to consummate a marriage due to obstinacy or caprice is not a ground
for annulment. However, non-consummation and refusal to consummate, depending on the
circumstances, may serve as evidence from which an inference of incapacity can reasonably
be drawn.
If the parties consummated the marriage, then an annulment is not available.
There had to be an expectation of a sexual relationship prior to the marriage. If the
party knew that the other party was impotent or that sex would not be part of the
relationship then an annulment will not be available.
Marriages that were conducted for immigration purposes cannot be annulled on that
ground alone.
If the marriage is annulled, the issue of support and division of property will still
have to be resolved.
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Do Divorce Laws Apply to Same Sex Marriages (Homosexual and Lesbian)?
Yes, the same divorce laws apply including one year separation, mental and physical cruelty of such a kind as to render intolerable the continued cohabitation of the parties and adultery.
Adultery in a case of a same sex marriage will include an extra-marital affair with a person of the same sex or other sex.
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Do Family Law Principles Apply to Same-Sex Relationships (Homosexual and Lesbian)?
Yes, the same principles apply for child custody, child access, child support, spousal support and equalization of family assets.
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Can a Separated Woman Change Her Name?
Pursuant to section 3 of the Change of Name Act a spouse (man or woman) may at any time while married change their name to the surname that the other spouse had immediately before their marriage or to a surname consisting of the surname that both spouses had immediately prior to their marriage, hyphenated or combined.
Pursuant to section 3.2 of the Act, within 90 days after the marriage is dissolved by divorce, annulment or death, the former spouse may elect in the prescribed manner to resume the surname that the spouse had immediately before the marriage.
The prescribed forms have to be filled out, fees paid, birth certificates and change of name certificates have to be provided.
The above also applies to parties living together in a conjugal relationship outside of marriage.
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Can I Change My Child's Name?
A person with lawful custody of a child may apply to change the child's forename or surname or both unless a Court Order or Separation Agreement prohibits the change.
The application to change the name requires that the notice of the application be given to every person who is lawfully entitled to access to the child.
A change of name of a child should only be allowed if it is in the best interest of the child and the party purposing the change has demonstrated that the change of name of the child will benefit the child throughout his or her life.
The child should not automatically have his or her surname changed to conform to the present surname of the custodial parent.
The only remedies available to an access parent wishing to prevent the change of the child's name would be;
- To move to restrain the name change from taking place, by seeking relief in the nature of an injunction;
- Bring a variation application to vary the terms of the Order granting custody to specifically forbid a name change without the consent of the access parent;
- Once the changed name has already been granted, to apply to set it aside in an application.
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