Legal Beagle


*Please note, “Legal Beagle” articles are general legal guidelines and are not meant to replace legal counsel. Please see your local Paralegal, or Lawyer for detailed case-by-case information.


Step One: The Divorce

Marriage Breakdown

THERE ARE ONLY TWO WAYS TO GET A DIVORCE
Click here The easy way - - Uncontested Divorce:
or
Click here The hard way - - Contested Divorce

Divorce in Canada is controlled by the Divorce Act

However each province also has its own Family Law Acts, which will affect your divorce in some manner.

Divorce is granted in Canada for one reason. Marriage breakdown.

Marriage breakdown is based on one of the following three "grounds." There are just three grounds for marriage breakdown: Cruelty or Adultery, or Separation for one year. Any one of them is sufficient for divorce. You do not need to have more than one ground.

  • Separation for one year:
    You have lived "separate and apart" for a year having decided the marriage is over. Living "separate and apart" does not necessarily mean living in separate homes. You can live separate and apart while sharing a home.

It is also possible to claim that although you only recently moved out and live in a different home, the marriage broke down and was essentially over at some time in the past, regardless of living arrangements

You do not need a separation agreement to prove separation.

  • Adultery:
    Your spouse has had sexual intercourse with someone else and you are not going to forgive her/him for that.
  • Cruelty:
    "Cruelty" can mean just about what ever the woman wants it to mean. If she claims it is unbearable to continue living together, the courts will probably accept that. Cruelty may include physical or mental "abuse."

Unfortunately many women's groups coach women on how to manipulate the system by claiming abuse, or be unfair regarding support, whether it is true or not, or out of spite and revenge; DO NOT put yourself and your children through this mess. Stick to the truth and the facts.

You should seriously consider using Separation as your ground for divorce. Most divorces in Canada are based on the grounds of separation for a year or more. Proving cruelty or adultery will be expensive, slow, frustrating and very difficult. Most people find it faster, simpler and much less expensive to simply separate for a year and then plead Separation as the grounds for divorce.

How do you determine when the one year waiting period started and ends?

The clock starts running when you decide that the marriage is over and there can be no reconciliation. You do not have to be physically living in separate homes to be "separated." Your separation can mean living in separate bedrooms, or as one of you moving out and living elsewhere. A separation agreement is a good idea as it will help you resolve property, custody and support matters. However you do not need a legal document that says you are separated, as there is no "legal separation" in Canada.

A Long Separation Doesn't Mean You're Divorced

Some uninformed people will say that if they are separated for a long period of time, say ten or twenty years, that their marriage is nullified. This is not true. Marriages do not just disolve or evaporate. A divorce granted by a judge is the only way that your marriage will be terminated under the eyes of the law.

Divorcing When You Didn't Marry In Canada

If you didn't marry in Canada, you can still legally get a divorce here. Divorce in Canada is based on residency, not the place of marriage. So, if you or your spouse has lived in Canada for at least one year you can obtain a divorce here. Citizenship: You do not have to be a Canadian citizen to apply for a divorce in Canada. You must reside here. Canadian Divorce Laws

The Divorce Act is a federal law made by the Parliament of Canada, administered equally across all provinces and territories. Only the superior court of each province has jurisdiction to deal with a Petition for Divorce. There Are No Winners in Court: Getting involved with the courts in a contested divorces is a lousy, destructive, enervating, expensive, frustrating, and time wasting nightmare that will last for years.

Do you know, for example, that a prolonged divorce or family court battle often will wipe out your resources completely? Can you afford to spend $30,000 or more on legal costs? How would that help your children? Or be in their "best interests?" Dealing with divorce is very trying and hard on both parties. It is not just the divorce, it is also the custody and access battles that follow and drag on for years. Dealing with the many unknowns.

How do I file for divorce in Canada?

You can do your own "uncontested" divorce, using separation for one year as the reason. You will have to do some leg work and follow simple instructions, but it can be done cheaply and quickly. If your divorce is simple and there are no major problems, you can do it yourself and seek an uncontested divorce with or without the help of a lawyer or paralegal. BUT, regardless it is prudent to spend a little money and consult with a divorce lawyer and have your options explained before you act A lawyer will explain how the law applies in your situation and how to protect your rights. You can then choose the right course of action for your situation. You can file for divorce with or without the involvement, consent or cooperation of your spouse.

BASIC TYPES OF DIVORCE

  • Click here Uncontested Divorce: You file the forms for divorce and if your spouse does not file a response, then the divorce becomes uncontested. You probably will not even have to appear in court. Usually a judge will just rubber stamp the divorce so long as there is no glaring unfairness or inequity in the proposed divorce arrangements. You cannot file an "uncontested divorce." The court determines this based on your filings.
  • Click here Joint Divorce: If you and your spouse agree on most or all of the issues you have an uncontested joint divorce. When both parties sign, and swear to the divorce papers the divorce is mutual and you are telling the court that you both want a divorce and agree on the terms you set up.
  • Click here Collaborative Contested Divorce: A Collaborative contested divorce occurs when the parties cannot agree on all of the issues, but are willing to negotiate through lawyers to solve all problems and all agree not to go to court.
  • Click here Contested Divorce: A contested divorce occurs when the parties cannot agree on all of the issues. This is where lawyers get involved. A contested divorce will involve considerable time, money and frustration. They often turn into major battles and both parties end up losers.

Common Steps to Divorce.

  • Decide to Divorce.
  • Research.
  • Attend to property issues.
  • Decide if you need a lawyer to prepare your divorce documents.

Each province has it's own way of doing things. Basically in each province the steps are:

  • File your first set of papers in the right court.
  • Wait for clearance from the Divorce Registry in Ottawa.
  • While you are waiting you conduct 'service' on your spouse according to the rules of court procedure.
  • Wait the prescribed number of days and hope the other side does what you want.
  • File the second set of papers and your Affidavits.
  • File Motions and financial statements as requested.
  • Wait for a court decision

When are you divorced?

Divorce becomes final 31 days after the judge signs the order.

Once the judgement is final you can apply for a certificate of divorce.

You cannot remarry until you have that certificate.

Donna Kaye

© Copyright, 2010 Main Street Magazine/Rain Enterprises

As seen in the June Issue of Main Street Magazine.

Printed in Canada, ISSN: 1920-4299 by Rain Enterprises

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