9 Steps to Divorce in Canada
Times are tough globally and the last thing you want to add to your life is the emotional toil of divorce. However, when matters get worse, you must face the music and hold the bull by the horns.
“Although during the COVID-19 pandemic, there was a drastic reduction in divorce rate in Canada, this does not imply all is well. Couples still file for divorce daily. If you think your union has hit the rock, you must know how to legally call it a quit,” says family law attorney Paul Riley of The Riley Divorce & Family Law Firm.
This piece discusses how to file for a divorce in Canada:
The Legal Requirements for a Divorce in Canada
It is essential to consult with a reputable family law attorney when planning to file for a divorce. The legal professional will tell you the conditions you must meet before the process can be successful.
Generally, if you are instituting a divorce in Canada, you must be in a valid union and reside in Canada. Either you or your partner must have lived in the country for a minimum of one year before filing the suit. You must also register your intent to part ways permanently without a probability of reconciling.
The court has the power to do and undo. It can approve your request for divorce even if you are the only one pushing for it. Also, it can reject a divorce suit if you fail to pay the needed child support before granting the petition.
The Canadian Divorce Act says couples can only legitimately file for a divorce on the grounds of adultery, separation, and abuse. If your petition is not based on any of these grounds, the court will dismiss it for lack of merit. It shows you have embarked on a futile exercise.
Steps to Institute a Divorce Suit in Canada
Every case differs. That is why you must liaise with your attorney to know the best steps or strategies to adopt for your case. You must also state if your divorce is contested or uncontested.
However, there are generic steps applicable to all cases. You should expect to spend more time on a contested divorce due to the back-and-forth arguments. Below are the steps to a divorce in Canada:
Attach Your Financial Statement to the Divorce Suit
Your divorce application explains the differences in the union and why you want to back out. You must take action within 30 days before or after your separation period.
Attach your separation agreement to the divorce application, if you drafted any. The separation agreement contains your agreement with your spouse on vital issues concerning the marriage.
If you want to go for a joint divorce, you and your spouse must institute the divorce lawsuit after agreeing to the crucial matters. Also, you must assent to the separation agreement.
Serve Your Partner with the Petition
You must ensure your spouse or their legal representation receives your petition after completing the filing process with the court. You should collaborate with the process server to ensure they deliver the divorce papers and financial statements to your spouse.
Then, you will tender the affidavit of service to the court. It will serve as evidence that your partner has received the paperwork.
Serve with Your Spouse’s Response
Your estranged partner must respond within 30 days of receiving a copy of your divorce application. They must also attach their financial statements to their response. The court will regard your divorce as “uncontested” if your partner does not respond within the given period.
If this is the case, the court may grant the claims ex parte. It means you will have a smooth ride throughout the process. The court will approve your prayers and they will be binding on your spouse.
Send Your Response
If your partner responds to your application within 30 days, you can also reply to their claims and allegations. While this step is optional, if you consider it necessary, you must send in your response within ten days of receiving their reply.
Proceed to Your Case Conference
This stage is very necessary in every court proceeding. You and your spouse, along with your respective legal representatives, must meet before the commencement of the trial. However, it is essential to add that this process is informal.
Hence, the judge will still discuss your outstanding issues and devise strategies to resolve them. You and your spouse must disclose your finances before drafting a separation agreement. If you fail to, the court will issue an order.
However, this court order is not substantive; it is merely procedural. This case conference is crucial before you can demand an interim relief.
Be Part of the Discovery Proceedings
At this stage, you need to exchange information with your partner. You can use the information to prove or disprove claims.
Typically, during the discovery stage, parties will exchange bank statements, tax returns, credit card statements, and other financial documents. You will also assess custody or access matters. Your respective attorneys will question you and your partner under oath on germane issues.
Get Ready to Institute Any Motions
Motions often entail time-sensitive issues such as unpaid spousal or child support, house sales, and other procedural matters. You can file a motion at this stage if you encounter any of these cases,
The issue you plan to bring before the court for quick resolution will determine the motion you will file.
Attend the Settlement Conference
You, your spouse, and your attorneys must appear before the judge during this conference. This conference aims to resolve issues emanating from the separation. If you have already resolved all issues with your partner, the court will gazette your agreement into a court order.
Further, the judge will approve your petition if you and your spouse are pleased with the child support payment. The case will proceed to a trial if you cannot resolve your differences amicably.
Engage in the Trial
Your case will proceed to trial if you cannot settle with your spouse amicably. You must convincingly present your proof at this phase. The court will issue a divorce order if you convince them.
It means you are legally off the hook of your ex. After the judge’s pronouncement, you can request a divorce certificate.
The Need for an Attorney in the Divorce Proceedings
Although it is not compulsory you engage a divorce or family law attorney, it is advisable. Canadian divorce laws are complex and you may get confused along the way. You must also heed some procedural matters for a positive outcome.
That is why it is advisable to involve a reputable divorce law attorney who understands the law and can fight for you. Since your legal representative is not emotionally attached to the case, they will be objective and impartial with the process.
Having a legal representative by your side, even in an uncontested divorce, bolsters your chances. Thus, if you resolve to go for a divorce, settle for a local divorce or family law attorney who will help you through the process.
