Divorce Proceeding

*Please note that the information on this website is intended as a guide only. Each case is unique and context-specific. Legal advice should be sought in regards to your family issue. Provincial and territorial legislation on family law policy and legislation will differ from province to province. If you or anyone you know requires legal advice, an experienced family lawyer should be contacted. If you have any questions not covered on this website, send an email enquiry to info@nanda.ca and we’ll be sure to get back to you shortly.

What is the purpose of a divorce?

The purpose of a divorce is to allow the respective parties to remarry. However, if there are no plans to remarry, parties can choose to stay legally married.

Do I need a lawyer to get a divorce?

No. There are plenty or resources which will guide you through the steps of a normal divorce proceeding. As is the case with any law suit, anyone can act on behalf of themselves. However, you should keep in mind that there is merit to the old adage that “a lawyer who acts for himself has a fool for a client,” meaning that those that represent themselves are generally ill-prepared to take on court cases.

In many instances, divorces are mired with issues relating to children and pets, support, or property. In these cases, one should seek the advice of an experienced family law lawyer to ensure that all rights are equally protected.

As with anything else, there are likely issues of a divorce which may come up suddenly and that is why it is necessary to seek. Furthermore, various steps are required to ensure that the proper documentation is prepared and taken to the proper court. In some instances, the time involved in finding out how to carry out the process on your own may not be worth the savings in lawyers’ fees. For more information on choosing a lawyer, see Choosing a Lawyer and Keeping The Costs At Bay.

What are the grounds for divorce?

In Canada there is only one ground for divorce. The ground for divorce is the breakdown of marriage.

According to the Divorce Act, paragraph 8 (2) states that the "Breakdown of the marriage is established only if:

  1. the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  2. the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage:
    1. committed adultery, or
    2. treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses."

The most common way to establish the breakdown of a marriage is to prove that the spouses have lived apart (separated) for at least one (1) year immediately before the divorce judgment is granted, and that the spouses lived apart at the time the proceedings began. For instance, if parties are using one year of separation to establish the breakdown of marriage, proceedings cannot begin until after spouses are already separated and it cannot be finalized until one (1) full year of separation. See Separation for more information on how to calculate the separation period.

From time to time, one of the parties may want to start the divorce proceedings immediately, without waiting the year from the date of separation. This can be done if adultery or cruelty has been established. Usually, raising one of these grounds to demonstrate the breakdown of marriage will cause more aggravation than it is worth. If one party simply decides to deny the allegation, an uncontested divorce may be converted into a contested divorce and it may take a longer period of time to finalize the divorce. It is a common practice to show the breakdown of a marriage by one year of separation.

What information do I need to begin divorce proceedings?

A Divorce Petition requires numerous information. If you prepare your documents accordingly, you can save money and time (billable hours) by having the information handy. See the Divorce Petition Checklist for more information.

In most cases, you will require a certified copy of your marriage certificate and if one party has already been divorced, a certified copy of the Decree Absolute or Divorce Judgment.

You will need to file a certified copy of your marriage certificate and, if one of you has already been divorced, a certified copy of the Decree Absolute or Divorce Judgment.

Can I get my divorce if there are unsettled issues?

Yes. The Divorce Act makes a distinction between the act of being free from a legal relationship of marriage and finalizing the issues that may still exist within a divorce. Such issues include spousal support, child support, alimony, and others. These issues are termed as collateral issues. Such issues can be handled after the divorce or as part of the divorce proceedings. In some instances, such issues can be handled after the divorce has been granted. The purpose of this partition of the Divorce Act is to allow parties to remarry without forcing them to deal with secondary issues to the divorce proceedings.

What matters are dealt with in the divorce proceedings?

Matters that are dealt with during the divorce proceedings include spousal support, child support, custody, access, and the divorce itself. While the Divorce Act deals with many of these issues, the Divorce Act does not deal with the division of property. The division of property must be dealt with under the legislation of the province/territory that the parties reside in. In Ontario, the division of property is handled under the Family Law Act.

I want to remarry someone from my own faith but my spouse is preventing it. Is there anything I can do?

Yes. Under the Divorce Act, section 21(2), regards the deliberation of parties in which one spouse is refusing to remove barriers to the remarriage of another spouse (on the condition of religion). The removal of the uncooperative spouse’s barrier may dismiss the application filed by the uncooperative spouse or strike out any pleadings or affidavits of that spouse. If an application is dismissed this can lead to severe consequences; this can be a severe consequence if the other spouse is seeking spousal support or seeking other remedies under an equalization payment.

Section 21(2) of the Divorce Act does not apply in the situation where the power to remove a barrier to religious remarriage lies with a religious body. Further, the court may refuse to exercise its jurisdiction under section 21(1) where the refusing party files an affidavit indicating grounds of a religious or conscientious nature for the refusal and satisfies the court that there are genuine grounds of a religious nature for refusing to remove a barrier.

What is an uncontested divorce?

In most cases, the divorce itself is not contested. In such cases, the party being served with the divorce may choose not to oppose the request for a divorce and choose not to file any responding material. This usually happens where the parties have already negotiated the terms of their separation, and have a separation agreement, marriage contract, or cohabitation agreement. The divorce judgment in these cases may include terms already agreed upon.

If you are being served with divorce documents, and you believe everything has been agreed upon, all terms and conditions should be laid out in a proper agreement before allowing the divorce to go uncontested. In such situations, the advice of an experienced family law lawyer is required. Although two parties may have agreed on an issue, it is always important to be sure of the necessary procedure to follow.


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