I WANT A DIVORCE! – Uncontested and Contested Divorces

Catherine Hyde, Family Law Clerk, April 20, 2012

In the movies there always seems to be one spouse trying to get the other to sign the “divorce papers” so that they can get remarried. Think “Sweet Alabama”. In Canada, our procedures are somewhat different.

There are two streams for divorces. It is either an Uncontested Divorce in which case all of the outstanding issues (property, custody, access, support) have been resolved (by way of Separation Agreement, Minutes of Settlement or Court Order) and neither party opposes the divorce, or a Contested Divorce in which case you have yet to resolve those issues and one party does not agree to proceeding with the divorce. In a contested matter, there is the opportunity to sever the divorce from the corollary relief (property, custody, access, support), if both parties agree to it.

Grounds

In order to obtain a divorce in Canada, there must be a marriage breakdown. Marriage breakdown may be: Separation – living apart for one year; Mental or Physical Cruelty; or Adultery.

Can I do it myself?

In the case of a contested divorce you should seek legal advice as to your rights and what the steps are in your specific case. Even in an uncontested divorce it is best to obtain legal advice with respect to your rights and whether in fact  you have dealt with all the outstanding issues or if you first need to obtain a Separation Agreement dealing with all of your rights. Once that step has been taken and both parties agree, you can proceed with the uncontested divorce.

You can prepare the paperwork yourself, however, the Application or the Affidavit can be returned by the court staff where you file it if certain information is missing. This can cause a delay in the process.  If you do not know where your spouse resides, there may be other steps to take in order to complete service. If an amount other than table amount is being paid for child support there will be further explanations required in your materials. These are factors to be taken into consideration when determining if you wish to do it on your own.

Steps in an Uncontested Divorce

The Application must be completed and issued by the Court. Once issued, you must arrange for service (unless it was a Joint Application) either by mail with an Acknowledgment of Receipt card signed by your spouse, or by personal service. The spouse then has 30 days in which to respond. If there is no response, you can proceed to file your documents with the Court to request an uncontested divorce. This will include your Affidavit and draft Divorce Order. The Judge will review the documents and determine whether the divorce should be granted. The Court will then issue the Divorce Order and mail it to the parties or provide to counsel of record.  31 days after the Divorce Order has been granted, you may attend at the Court Office and obtain a Certificate of Divorce. At each stage there are filing fees to be paid to the Court.

Crossposted at Matrimonial Matters blog: I want a Divorce!

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