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Difference between revisions of "Uncontested Divorce (3:V)"
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Uncontested Divorce (3:V) (view source)
Revision as of 01:03, 29 December 2020
, 01:03, 29 December 2020no edit summary
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{{REVIEWED LSLAP | date= | {{REVIEWED LSLAP | date= September 29, 2020}} | ||
{{LSLAP Manual TOC|expanded = family}} | {{LSLAP Manual TOC|expanded = family}} | ||
== A. Required Documents == | == A. Required Documents == | ||
If the spouse is trying to do the divorce on | If the spouse is trying to do the divorce on their own, the following information details the basic documents that they will need. A person handling their own divorce is advised to get a copy of the documents and instructions from Self-Counsel Press. | ||
=== 1. Marriage Certificate === | === 1. Marriage Certificate === | ||
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These documents can be attached to the divorce affidavits as exhibits. | These documents can be attached to the divorce affidavits as exhibits. | ||
If the client or spouse had previously started a divorce action, | If the client or spouse had previously started a divorce action, they must provide a filed copy of the Notice of Discontinuance that authorized discontinuance of that action. | ||
If a separation agreement is the only document signed between the parties that involves guardianship, parenting arrangements, and consent and support of the children (i.e. if there are no court orders), the agreement may be filed in either the Provincial or the Supreme Court and enforced as a court order. Section 44 of the FLA allows for written agreements respecting parenting arrangements, section 148 allows for written agreements respecting child support and section 163 allows for written agreements respecting spousal support. The separation agreement does not need to be filed in Court to obtain a divorce order. However, if there are children of the marriage, the agreement should be attached to the affidavit regarding child support as evidence of the parties’ agreement. | If a separation agreement is the only document signed between the parties that involves guardianship, parenting arrangements, and consent and support of the children (i.e. if there are no court orders), the agreement may be filed in either the Provincial or the Supreme Court and enforced as a court order. Section 44 of the FLA allows for written agreements respecting parenting arrangements, section 148 allows for written agreements respecting child support and section 163 allows for written agreements respecting spousal support. The separation agreement does not need to be filed in Court to obtain a divorce order. However, if there are children of the marriage, the agreement should be attached to the affidavit regarding child support as evidence of the parties’ agreement. | ||
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== D. Style of Proceedings == | == D. Style of Proceedings == | ||
The style of proceedings should use the names of both parties as they appear on the certificate or registration of marriage. The | The style of proceedings should use the names of both parties as they appear on the certificate or registration of marriage. The previous surname on the marriage certificate is not an alias and you need not use “also known as” or add it to the style of proceedings. If the certificate shows a typographic error, you may wish to include in the style of proceedings the name the party presently uses and “also known as” (or “formerly known as,” as appropriate) the name on the certificate. | ||
== E. Backing Sheets == | == E. Backing Sheets == | ||
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Under Part 3 of the Notice of Family Claim, any separation agreement or financial agreements determining any matters related to the dissolution of the marriage, any orders from the Courts, and/or other proceedings in the Courts should be noted. Details such as the date of the agreement, the matters resolved, and whether or not the agreements are still in effect should be set out, but the more specific details of the agreements do not need to be set out. | Under Part 3 of the Notice of Family Claim, any separation agreement or financial agreements determining any matters related to the dissolution of the marriage, any orders from the Courts, and/or other proceedings in the Courts should be noted. Details such as the date of the agreement, the matters resolved, and whether or not the agreements are still in effect should be set out, but the more specific details of the agreements do not need to be set out. | ||
If the claimant is only seeking a divorce and has settled all other corollary matters without the need for court orders, | If the claimant is only seeking a divorce and has settled all other corollary matters without the need for court orders, they need only fill out the Notice of Family Claim, Schedule 1 – Divorce, and, if applicable, Schedule 5 - Other Orders if they want an order changing their name under the [http://canlii.ca/t/8481 ''Name Act'']. | ||
The forms must include an address for service. This address must be within 30 km from the courthouse. It can include a fax number and/or an email address. The address must be kept up to date with the Court and opposing party. | The forms must include an address for service. This address must be within 30 km from the courthouse. It can include a fax number and/or an email address. The address must be kept up to date with the Court and opposing party. | ||
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=== 1. Schedule 1: Divorce === | === 1. Schedule 1: Divorce === | ||
Place a check for each applicable box and fill in the form accordingly. Addresses must be accurate. Do not use post office boxes. A government | Place a check for each applicable box and fill in the form accordingly. Addresses must be accurate. Do not use post office boxes. A government-issued certificate of marriage or certificate of registration of marriage must be filed where the party intends to seek an uncontested divorce. | ||
=== 2. Schedule 2: Children === | === 2. Schedule 2: Children === | ||
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=== 4. Schedule 4: Property === | === 4. Schedule 4: Property === | ||
Place a check mark for each applicable box and fill in the form accordingly. If one of the parties wishes to obtain | Place a check mark for each applicable box and fill in the form accordingly. If one of the parties wishes to obtain unequal division of family property and family debt, details and reasons should be set forth here. '''Only a lawyer should deal with property issues.''' | ||
=== 5. Schedule 5: Other Orders === | === 5. Schedule 5: Other Orders === | ||
Place a check mark for each applicable box and fill in the form accordingly. If the claimant is seeking a name change, | Place a check mark for each applicable box and fill in the form accordingly. If the claimant is seeking a name change, they should indicate the full current and new names here. | ||
== G. Child Support Affidavits == | == G. Child Support Affidavits == | ||
Whenever there are children of the marriage and the requisition for a Desk Order Divorce is ready to be submitted, a Child Support Affidavit must be filed. Even if the matter of guardianship, etc. is to remain in the jurisdiction of the lower court, a judge is still required to satisfy | Whenever there are children of the marriage and the requisition for a Desk Order Divorce is ready to be submitted, a Child Support Affidavit must be filed. Even if the matter of guardianship, etc. is to remain in the jurisdiction of the lower court, a judge is still required to satisfy themselves that reasonable arrangements have been made for the care of the children, hence the requirement for financial information. It is imperative that all income of both the child support claimant and the respondent be listed on the affidavit. | ||
== H. Service == | == H. Service == | ||
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Clients should be advised that they '''must''' have a third party, over the age of 18, serve their Notice of Family Claim. Clients who choose to use a professional service should provide the server with a photograph of the spouse. The server should be told to take down the spouse’s driver’s licence number. Taking these steps will ensure that the Court does not question the validity of the service. | Clients should be advised that they '''must''' have a third party, over the age of 18, serve their Notice of Family Claim. Clients who choose to use a professional service should provide the server with a photograph of the spouse. The server should be told to take down the spouse’s driver’s licence number. Taking these steps will ensure that the Court does not question the validity of the service. | ||
:'''NOTE:''' If the process server serves the Notice of Family Claim based on a photograph and does not, or is not able to obtain the spouses’ driver’s license number, the client must swear an additional affidavit confirming the identity of | :'''NOTE:''' If the process server serves the Notice of Family Claim based on a photograph and does not, or is not able to obtain the spouses’ driver’s license number, the client must swear an additional affidavit confirming the identity of their spouse in the photograph used. | ||
If the respondent’s address is not known, the client should write letters to friends and family members to try to locate him or her. The client might also want to consider hiring the services of a skiptracing agency. This takes extra time, but will avoid the additional costs associated with a substitute service application. | If the respondent’s address is not known, the client should write letters to friends and family members to try to locate him or her. The client might also want to consider hiring the services of a skiptracing agency. This takes extra time, but will avoid the additional costs associated with a substitute service application. | ||
