Divorce & Separation
Divorce can be very difficult to deal with alone. We are here to help get your through what is undoubtedly the most trying time in your life.
How do I get divorced?
In order to get divorced you must first file with the court a Statement of Claim for Divorce. You, or your spouse, must live in the province in which you are filing for divorce for at least one year prior to filing. Once filed the Statement of Claim must be given to your spouse in person by someone other than you. The person who gives the Statement of Claim to your spouse must then swear a document attesting to the fact that your spouse has been served. This then starts the divorce process.
I just received divorce documents. What do I do?
If you have been served with divorce documents (called a Statement of Claim for Divorce) you should take this very seriously. There are timelines that must be met and should not be ignored. On being served, you have 20 days within which to respond by filing and serving a document called a Statement of Defence or a Demand for Notice. If you do not file your Statement of Defence or Demand for Notice within the 20-day deadline, your spouse may be able to ask the court to give her or him all of the things that have been asked for in the Statement of Claim without your participation and without giving you further notice.
The Statement of Defence includes information indicating what you agree with and what you disagree with in your spouse’s Statement of Claim for Divorce. You can also file your own Statement of Claim for Divorce at the same time you file your Statement of Defence (called a Counterclaim). Your Counterclaim will state what it is that you wish to obtain as part of the divorce proceedings.
A Demand for Notice is filed when you agree with everything being asked for in the Statement of Claim for Divorce. In filing a Demand for Notice you are indicating that you do not disagree with what is being sought by your spouse in her or his Statement of Claim for Divorce and that all you wish is to be provided with notice of each subsequent step taken in the court proceedings.
What are the grounds for divorce?
Divorce in Canada is “no fault”. This means that a spouse’s conduct is not considered nor does it affect the end result. The Statement of Claim for Divorce must, however, set out the grounds upon which you are seeking divorce. There are three grounds for divorce. You can obtain a divorce based on one, two or all three grounds. The grounds upon which you seek a divorce must be proven by you or acknowledged by your spouse. The three grounds are as follows:
- you have lived separate and apart for at least one year;
- if there has been physical or mental cruelty; or
- if there has been adultery.
In most cases determining the date of separation is obvious – one spouse moves out. In some cases, you can be considered separated while still residing in the same household. Some of the factors to be considered in determining when separation occurred include:
- Whether you continue to reside in the same residence;
- Whether you still share finances or have bank accounts together;
- Whether you have told friends and family that you have separated;
- Whether you cook, clean, do laundry or other domestic services for your spouse; and
- Whether you have sexual relations or are continuing to sleep in the same bedroom.
No one factor is more important than the other.
Do I Have to wait until I have been separated for one year before I file for divorce?
Divorce proceedings can begin even if you have not been living separate and apart for one year. However, you will not be able to get divorced until one year has elapsed or you have proven one of the other two grounds for divorce. Even if you have claimed cruelty or adultery as the reason for your divorce, you should generally also claim living separate and apart for one year. To rely on cruelty or adultery you will need to prove this occurred or have your spouse acknowledge same, which can be expensive and can take longer than one year to do. Further, the grounds do not affect how support is calculated nor how property is divided, you simply need to prove or have your spouse acknowledge that at least one of the grounds for divorce has occurred.
During the period of time before the one-year separation anniversary, you can address the other issues, like decision making relating to children, child support, spousal support and even some or all of the property division.
How do I finalize my divorce?
To get divorced you must obtain a divorce judgment from the court. This can be granted following a trial if your divorce is contested or it can done by “desk divorce” if you and your spouse can agree on terms of settlement. A desk divorce allows a spouse or spouses to apply for a divorce without going to Court or appearing in person. This is literally a desk process – the appropriate documents (request for divorce, affidavit of applicant, and draft divorce judgment) are submitted to the court for processing. Once processed you will receive back the divorce judgment, signed by a judge.
Thirty days after the divorce judgment was signed and dated, you can request your certificate of divorce. Then you are legally divorced. We recommend that in the future you consider having a cohabitation or prenuptial agreement before living with a romantic partner. This will help you protect your assets, and can also pre-set spousal/partner support terms, in the event the new relationship breaks down. Our office can assist with these types of agreements as well.
If there are children involved, the court will not grant a divorce unless reasonable arrangements have been made for the children. This means that you need to have a reasonable parenting plan and child support arrangement in place. In some cases, if reasonable arrangements have been made, the court may allow you to proceed with the divorce even if the other issues have not yet been resolved. This is called “severing the divorce from the corollary relief”. The corollary relief is everything but the divorce – child support, parenting time, decision-making and spousal support. The court will separate (or sever) the divorce from the corollary relief to allow you to get divorced before finalizing the corollary relief.
What about the corollary relief?
Corollary relief is the ancillary matters included in the divorce claim, and include child support, parenting, decision making and spousal support. In some cases the court will allow you to proceed with the divorce without first finalizing the corollary relief. This is called severing the divorce from the corollary relief. At some point, even if the corollary relief has been severed, you will need to address it. As will all divorce matters, the best way to finalize the corollary relief is to negotiate resolution by way of a contract. The contract can bear a variety of different names including a divorce agreement, a separation agreement or a minutes of settlement, but will be the same thing. It contains all of your settlement terms. Usually a contract is used where there are property issues that need to be resolved. Where there are no property issues to resolve you can proceed with a court order by way of consent. The court order would be called a “Divorce Judgment” and would include the agreed upon arrangements for child support, parenting, decision making about the children and spousal support. The divorce judgment is then filed with the court.
If you cannot reach agreement on any of these issues, your solution is to go to court. You can bring an application for interim relief for parenting, decision making, child support and/or spousal support while you wait the finalization of the divorce. This will be done in regular chambers or in special chambers, depending on the complexity of the issue. Regular chambers is reserved for simple matters that can be dealt with in less than 20 minutes. In regular chambers the judge will not have read the filed court documents in advance and will render a quick decision without the same level of thought as would occur in special chambers as a result of the short timeline and absence of having read the materials in advance. Special Chambers is usually scheduled for one hour or one-half day and is reserved for more complex matters or matters that will take longer than 20 minutes to hear. At special chambers the judge will have read all of the filed court materials in advance following which you, or your lawyer will be given an opportunity to make oral submissions and answer any questions the judge may have.
Orders granted in chambers are not final. Some orders can be varied or changed easily, while others require the need to show a significant change in circumstance before variation is allowed. To get a final order you will need to get a judgment. A judgment is granted at trial. Often the parties will obtain an order in regular chambers or in special chambers and will accept that order as a final order.
The divorce itself is usually quite simple. Solving the corollary relief is difficult and is usually what results in conflict between the parties and ongoing litigation and legal fees.