Difference between revisions of "Divorce and the Law on Getting Divorced"

This page will provide an overview of the grounds for divorce, and discuss the nature of a divorce order and the effect of foreign divorce orders in Canada. It will also review the do-it-yourself divorce process, and the court forms used in that process, in enough detail that you can get your own divorce without having to hire a lawyer.  

#the intentional separation of the spouses for at least one year;

Proof of cruelty normally consists of a medical, psychological or psychiatric report, or, in some circumstances, a simple letter from a treating professional describing the abuse.

If a court finds that there has been conspiracy, connivance or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

''Conspiracy'' and ''connivance'' are both attempts to cheat the court. A relationship must have legitimately broken down before the court will officially dissolve it; anything else would be a fraud upon the court. ''Conspiracy'' means that the spouses have worked together to achieve the wrongful act providing the ground for divorce. This could mean, for example, an agreement between the spouses for one of them to have sex with someone else in order to claim adultery as a ground of divorce. ''Connivance'' means to arrange for the wrongful act to occur. For example, this could include one spouse arranging for the other to be seduced by someone else in order to claim adultery as a ground of divorce.

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid pursuant to the Child Support Guidelines. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce; remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support or it may make an order which merely refers to the payor's obligation to pay child support without fixing an amount payable.

In order to get a divorce order, the court must be satisfied that:

It is possible to oppose an application for a divorce order. Practically speaking, however, by the time the application gets before a judge, the responding party has usually come to realize that a divorce is inevitable. If the court is satisfied that the applicant is entitled to his or her order because the grounds for the divorce have been proven, the divorce is usually granted despite any objections by the other spouse.

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support and spousal support.

Divorce orders are usually made after all of the corollary issues, if any, have been dealt with, either as a result of a trial or a settlement reached following negotiations. The court will be reluctant to make a divorce order until all of the legal issues have been addressed.

Orders for divorce usually contain a term that "this order shall not take effect until the 31st day after its pronouncement." This to allow the appeal period to expire. Once those 31 days have passed, however, the parties are officially divorced and are free to remarry if they wish.

It is possible to abridge this appeal period, if the divorce must take effect sooner for some urgent reason such as remarriage. If this is the case, the court should be advised of the need for haste, and a waiver of appeal will have to be filed.

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.

Section 22(1) of the ''Divorce Act'' deals with the effect in Canada of divorces obtained outside Canada. In a nutshell, if a divorce was properly granted by the foreign country the parties will also be considered to be divorced here, without the need to obtain a Canadian divorce order.

Even if a foreign divorce isn't good under Canadian law, everyone will usually accept the fact that the spouse is divorced. Whether the divorce meets Canadian requirements will only ever become an issue if one of the spouses later claims that the divorce is not valid. This can have some fairly serious consequences, mostly involving the division of property and pensions. See the Family Assets section for discussion of triggering events and the property entitlements of married spouses.

The only way to obtain an order for divorce is by starting a court proceeding; you must sue your spouse if you want to get divorced. The do-it-yourself process, called the ''desk order divorce process'', allows you to obtain a final order for divorce without every having to appear in court, and the order can deal with all of the issues between you and your spouse, from divorce to the division of property to child support.

Most court proceedings go like this: the Claimant files a Notice of Family Claim and serves it on the Respondent; the Respondent then files a Response to Family Claim and sometimes a Counterclaim. If the Respondent fails to file a Response to Family Claim, the Claimant's court proceeding is said to be ''uncontested'', meaning that the Respondent is assumed to either agree with the relief sought by the Claimant or to have chosen not to defend the claim. In such circumstances, the Claimant is free to seek a ''default judgment'' against the Respondent.

There are two types of desk order divorce actions:

*In a joint application, both spouses must sign the Notice of Family Claim, and both must execute an affidavit for the application for the divorce order.

These instructions are for the sole divorce application process.

<blockquote>Prepare your draft Certificate of Divorce and file it in the court registry, together with a Requisition asking the registry to complete the Certificate. Pay the $40 court fee, and grab a chair. The registry will normally complete your Certificate of Divorce while you wait.</blockquote>

The joint divorce application process is almost exactly the same as the sole divorce application process, except that some of the forms are different, service is not required, and the length of time it takes to get a divorce is about 4 to 8 weeks in total.

===Downloads===

The links below will open sample court documents. You will require Adobe Acrobat Reader to view these files, a free program available for download from Adobe Software.

In these samples, John Smith and Jane Smith are getting divorced. In the forms for the sole process, John is asking for a divorce and orders about the care and control of the children. No order about child support is necessary because there's already an order about child support from the Provincial Court. In the forms for the joint process, John and Jane are asking for a divorce, orders about the care and control of the children, and an order for child support. (For more information about these topics, see the sections Children and Child Support.)

*Form F3: Notice of Family Claim (PDF)

*Registration of Divorce Proceeding

*Form F15: Affidavit of Personal Service (PDF)

*Form F35: Divorce Requisition (PDF)

*Form F52: draft Divorce Order (PDF)

*Form F56: Divorce Certificate (PDF)

'''Joint Divorce Application'''

*Form F1: Joint Notice of Family Claim (PDF)

*Form F52: draft Divorce Order (PDF)

*Form F56: Divorce Certificate (PDF)

These sample documents are just that: samples. While they represent a more or less accurate picture of how John and Jane Doe might fill out their forms, they may not be applicable to your situation. Use them as a reference only together with the official court form.

Click the links below to open templates in Word format. Areas where you must supply information are indicated in green text.

*Form F56: Divorce Certificate (DOC)

The Salvation Army's pro bono program and Access Pro Bono offer free meetings with lawyers who can review your forms with you before you file them in court. In some cases, the Salvation Army may also be able to prepare your documents for you. Although the lawyers available through these programs are not likely to prepare your documents, they will give them a check to make sure that the registry will accept them.

The British Columbia Continuing Legal Education Society has published an excellent guide to the desk order divorce process called the Desk Order Divorce Manual which has samples of the different clauses you may need to complete your court forms. This book will be available at your local courthouse library.

====Lawyers====

Lawyers, however, come at a cost. You should expect that you will be charged fees of anywhere between $500 and $2,000 for your divorce, plus the lawyer's out-of-pocket expenses for things like court fees and photocopying.

A local company called Self-Counsel Press publishes a kit for the desk order divorce process. The kit, which costs something like $25 to $35, contains all the forms necessary to apply for a desk order divorce, plus instructions on how to make the application. Make sure that the kit you buy has forms that are current to the changes made on 18 March 2013.