Divorcing in Canada in 2023: Things To Consider
There's no easy divorce. In most cases, this event is emotionally and psychologically traumatic.
The last thing you want to worry about during this challenging time is navigating complicated family law issues. To make matters worse, you must make objective decisions during these difficult times. Otherwise, you risk child custody, property partition, and alimony.
Divorce in Canada declined sharply from 2019 to 2020. Experts suggested that this decrease is due to the pandemic, where courts incurred delays in deciding on divorce petitions. Apart from that, age-specific divorce cases also decreased for young adults. Although the decrease may be an indication that more married couples choose to stay together, it doesn’t take away the fact that many couples still opt for a divorce to sever their ties.
Can you legally apply for a divorce in Canada?
Working with a seasoned lawyer to deal with this event that will impact your life is in your best interest. Your lawyer can help if you can file for divorce in your country or state. If you plan to divorce in Canada, consult a separation lawyer in Toronto and ensure you meet these three requirements.
- Your marriage must be valid and exist in Canada or another country
- Either spouse must have lived in Canada for a minimum of one year before you filed the divorce petition
- You or your spouse intend to separate permanently without the possibility of reconciling
The court may dispose of and grant a divorce even if only one party wants it. It also has the power to deny a divorce petition if the responsible parent fails to pay the proper child support before granting the petition. The Canadian Divorce Act sets three grounds for filing a divorce: separation, abuse or cruelty, and adultery.
How can you file a divorce petition in Canada?
Each situation is unique, but there are universal steps you must follow when filing an uncontested or contested divorce in Canada. These steps are the same even in different individual circumstances. The time required for the divorce process to be finalised changes depending on how long spouses settle their disputes.
Suppose the issues between the parties are complicated and unreasonable. In that case, it will take longer for the parties to resolve these separation-related concerns. This event will also significantly increase separation-related expenses.
Here is a straightforward and comprehensive guide to filing a divorce in Canada.
Step 1: File your financial statement along with the divorce petition
The divorce application contains the claims you allege arising from the separation. You can file this petition with the court 30 days before or after your separation period begins. If you drafted a separation agreement, you must file this along with the divorce application. This agreement outlines what the parties agree on regarding issues involving the marriage.
If you’re filing a joint divorce, both spouses must file the divorce petition together after you agree on the significant issues. You also need to sign the separation agreement in this case.
Step 2: Serve your spouse with the divorce papers and financial statements
Soon after you file the accompanying paperwork with the court, the other party or their legal representative will receive their copy. The process server must deliver the paperwork. After which, you must submit an affidavit of service with the court assuming jurisdiction of your case.
Step 3: Serve with the other party’s answer
After your spouse or legal representative receives a copy of your divorce application, they have 30 days to file their answer. They must also submit their financial statements along with their answer. If you don’t receive the other party’s response within the set period, the court will declare your divorce petition “uncontested.” As a result of the uncontested ruling, the court may grant the claims ex parte.
Step 4: Send your reply
You can respond to their allegations and claims when the other party sends their answer. This step is optional. However, if you intend to submit a reply, you must hand it in within ten days after receiving the answer. If you forego this step, the process will move to the next step: the case conference.
Step 5: Go to your case conference
This part is a procedural step of the discovery process in every court proceeding. The concerned parties, along with their lawyers, must meet before the court. Though this is an informal process, the judge will still discuss the parties’ outstanding issues and see how they can resolve them.
The parties must disclose their finances before they draw up a separation agreement or the court issues a court order. This order is merely procedural instead of substantive. The conference is necessary before the party can file for interim relief.
Step 6: Take part in the discovery proceedings
This process includes exchanging information that may disprove or support a party’s claim. A typical discovery process consists of the following:
- Exchange of credit card statements, bank statements, tax returns, and other financial documents
- Evaluation of access or custody issues
- Questioning of the parties under oath on proceeding-related issues
Step 7: Prepare to file for any motions
Most of the time, motions deal with time-sensitive matters like house sales, unpaid spousal or child support, and other procedural or disclosure issues. If you encounter any of these situations, now is the time to file a motion in court. The type of motion will depend on the issue you plan to submit to the court for immediate resolution.
Step 8: Show up for the settlement conference
This kind of conference calls for spouses and their legal representatives to meet before the judge. This time, the goal of the meeting is to settle issues arising from the separation. If the parties have already settled, the court will incorporate their separation agreement into a court order.
The court will grant the divorce petition if both parties are satisfied with the payment of child support. If they can’t resolve all the issues raised, the case will progress into a full-blown trial.
Step 9: Participate in a full-blown trial
If the parties can’t settle, the divorce will go to trial. This part of the case is when you must present all the evidence before the judge can make a decision. When the judge finds merit in your case, they’ll issue a divorce order. This order means you’re no longer married to your ex-spouse. Both parties can request a divorce certificate after getting a court decision.
Is it mandatory to hire a legal representative when filing for divorce?
Hiring a lawyer is not mandatory. Any party to a divorce case may represent themselves and act on their behalf. However, remember that the laws regarding divorce are complex. Apart from that, there are procedural matters that you need to consider to keep the court from disposing of your case ex parte.
In this case, it’s best to retain the services of a lawyer. It will be challenging for a party to a divorce case to act impartially and objectively. It would help to have a legal expert who will fight for your interests but isn’t emotionally attached to the case.
A seasoned divorce lawyer will deliver a successful outcome. You should consider this decision even if it’s an uncontested divorce. They will ensure that you know the process and complete the case correctly.
When you decide there’s no chance of reconciling with your spouse, find a lawyer immediately. The most seamless way to find the right lawyer is to consult with different firms. Know how they can represent you and what services they can offer. Choose the one that best represents your interests.
What is the cost of filing for divorce in Canada?
People often ask this question when tackling divorce proceedings. Unfortunately, it’s also the most difficult to answer right away. Lawyers aim to resolve the divorce as inexpensively and quickly as possible. Then again, their fees may vary significantly. This is because divorce usually depends on different factors that are hard to control. Hence, it’s not easy to give a firm answer.
It’s hard to tell if both parties will be level-headed about the case. The lawyer can’t also predict with utmost certainty how long the court can dispense with the matter. Despite these uncertainties, a good and trustworthy lawyer can outline the fees they’ll be charging. They can also explain what the charges will be. They will make the billing transparent for you.
Through this, you’ll have a better understanding of the costs of the case. It’s best to visit your lawyer to talk about your financial situation. They can understand your expectations about legal representation costs, settlement awards, and other support payments you’re entitled to receive.
Know the Process Before Moving Forward
If, despite your diligent efforts, you can’t salvage your marriage, divorce might be what gives you peace. Then again, it may not always be the answer to your marital woes. Before making permanent life decisions, knowing the process you’ll have to go through is best.
Consult with a lawyer if you can’t decide in a level-headed manner. Your lawyer can give you a bird’s-eye view of what’s ahead, so there will be fewer surprises. They can also help you prepare mentally, emotionally, and financially. In your divorce case, you can represent yourself. However, it’s best to have a legal ally to navigate the divorce process with you at the end of the day.