Overview of the Divorce Process
This will be the first article in a series of “crash courses” in Family Law. The purpose of these articles will be to answer some general questions about how the legal system works and maximize your time with your lawyer.
Married vs Unmarried
There are three aspects to a Divorce or separation from a partner, 1) the Divorce itself which puts aside your marriage and allows you to legally remarry, 2) the corollary relief which includes arrangement for children (contact), support for children (child support), and spousal support (also called maintenance or alimony), and 3) distribution of property.
Whether you are married or not has implications for whether or not you need to get a Divorce, and the legal framework for dealing with property but the general process is very similar.
You only need a Divorce if you were married. If you are “common law” or in an adult interdependent relationship you can end your relationship by leaving, regardless of how long you were together.
Corollary relief is dealt with in a very similar way whether you are married or not.
Division of property is governed by the Matrimonial Property Act if you are married, and the tort of Unjust Enrichment if you are not.
It is easy in Canada to get a Divorce. You can apply for a Divorce if 1) you have been separated from your spouse for more than 1 year, 2) your spouse cheated on you, or 3) your spouse has been mentally or physically abusive. The easiest and often fastest option is to claim Divorce due to separation. Claiming adultery or cruelty requires your partner to admit doing so and can be more work and take more time than claiming separation.
Starting The Process
The process is started with a Statement of Claim. This is sometimes also called a “commencement document” and is a type of “pleading” or a formal statement to the court about what you want. You can use one Statement of Claim for all three parts of a Divorce, the Divorce, corollary relief and property division.
The Statement of Claim is drafted by the Plaintiff’s (spouse asking for the Divorce) lawyer and sent to the Court, and to the Defendant (this is called Service). The documents must be delivered to the Defendant in person, and not by the Plaintiff, the deliverer must then submit an Affidavit to the Court that swears they gave the documents to the Defendant, and gives details like the date, time and location. This lets the Court know that the Defendant knows the Plaintiff has asked the Court for a Divorce.
After the Statement of Claim has been served the Defendant has a certain amount of time to respond to it. The Defendant has three options.
1) If the Defendant agrees with everything that the Plaintiff has asked for in the Statement of Claim (child support, custody, spousal support, and property) they can file a Demand for Notice. This means that the Court will continue with the file, probably grant what is asked for in the Statement of Claim and let you know what happened.
2) If the Defendant does not agree with what the Plaintiff has asked for in the Statement of Claim they can file a Statement of Defence. This is a very similar document and it is also a type of pleading. In the Statement of Defence, they can state what they don’t agree with. Often, they will also file a Counterclaim, another Pleading and kind of a mirror of the Statement of Defence. In this document, they can ask the Court for alternatives to what the Plaintiff has asked for. For example, if the Plaintiff asked for $600 a month in Child Support in the Statement of Claim the Defendant can respond with a Statement of Defence that says, “I oppose the claim of $600 a month in Child Support” and in their Counterclaim can ask that the Plaintiff pay you $500 a month is Child Support instead.
3) If the Defendant does nothing the Court will assume that they agree with everything in the Statement of Claim and don’t care about the outcome. They will continue with the file and if the Defendant wants any information about the case they will have to call the courthouse or go there in person. Some people pick this option when they are getting divorced but have no children, no spousal support claim and no property. The Divorce will go through and you will have no notice. If you need a copy of the Divorce certificate later, you can get it online through the courts website.
Getting the Orders
After the process is started you have to start making arguments for why you should get what you’ve asked for in the Statement of Claim or making decisions with your spouse about what should happen. Since each situation is different, each person will need to use different tools to reach agreements.
The first thing most lawyers will do is ask the other side for “Disclosure”. This is a bunch of documents laying out the financial situation of each party. It can be a lot of work to get all of the documents, but they are very useful help determine how much someone should pay for child support and spousal support, and what is a fair amount of property to keep. It’s also required by law to give the other side this information. There is a standard form that lists all the documents you need to give to your ex and it is easy to look up if you are curious or want to get a head start.
If you get along with your ex
If you get along with your ex you can make “Agreements” that the Court will (usually) grant. The Courts main priority is the “Best Interest of the Child”. If you agree with your ex to do something that the Court doesn’t think is in the child’s best interest, they may not grant it. For example, Child Support is considered the right of the child and not the parent who receives it. This means that you cannot agree to not pay child support. The Court will not grant you that Order.
If there is a chance that you could get along with your ex there are people who can help you. Mediators are trained in getting opposing parties to talk and figure out how to come to an agreement. You can usually bring your lawyer with you to these meetings to have some support. The Courthouse also has mediators who specialize in family disputes. The other option is Arbitration. An Arbitrator is like a Judge, their job is to listen to both sides and then make a decision for you. Their decision is binding and can be taken to court to get granted as an Order.
If you can solve all of the issues by Agreement with your spouse, you don’t have to go to Court for a trial. You can file a Request for Divorce, Affidavit of Applicant, and Divorce Judgement and cite the Orders that have resolved any disputes from the Statement of Claim or Counterclaim. This makes the Divorce the only outstanding issue and the Courts will (probably) grant it.
If you do NOT get along with your ex
If you and your ex do not get along then you can go to the Court and have them make a decision for you. Since the Court is very busy it takes about 1 year to book a trial and get a final decision. In the meantime, you can go to Court for an “Interim Order”, that is, an Order that applies until the trial determines a final Order. These are bought through “Applications” which are kind of like mini Statements of Claim that ask the Court for certain Orders. The Applications are supported by written “Affidavit” evidence. The Judge will read your Affidavit and then ask you some questions in Court. You will not get to call witnesses or go on to the stand. Most of these trial appearances take place in “Morning Chambers” where you have 20 minutes only to talk with the Judge in public Chambers. Sometimes the Judge will decide that that is not enough time to hear your case and you could be scheduled for “Domestic Specials” where you can sit down with a Judge for either a half-day or full-day in a private room.
As you get closer to trial you can gather more information to help your case. This can include questioning your spouse or other witnesses and getting experts to write you reports. This is most common with custody issues where people will get “Parenting Assessments” or “Voice of the Child” reports. These involve having a social worker come to your house and watch you interact with your child and talk with the parents and the child. The report can be submitted at trial and the expert can be brought in as a witness and asked questions.
Finally, once the trial is over the Judge will make a final Order about everything you were still arguing about with your spouse.
Unfortunately, most Orders can be varied, meaning you may have to go back to Court years after your Divorce is final. Most Orders are only allowed to be changed in cases of a “material change in circumstances”. This could be anything from changing where the child goes to school, to changes in parent’s employment, or a death or relocation. All these events could give rise to the need or desire for a new order.
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