There are three types of Divorces in Canada:
- The first, and most uncommon, option is a joint divorce, where one spouse files the Application for divorce with the other spouse.
- The second type is an uncontested divorce. This is where one spouse files the Application for divorce, and the other spouse does not respond to it in court within the 30 day time limit. When the time limit expires, the Applicant can ask the court to grant the divorce order on the basis that the other spouse had the opportunity to oppose it and has not. The court is then allowed to assume that the spouse either agrees with the divorce, or at least does not care about it.
- The final type of divorce is a contested divorce. This is where one spouse applies for a divorce and the other spouse does not consent to the terms of the divorce, such as property division or spousal support. It can also occur where the spouse denies that the couple is eligible for a divorce.
Where a divorce is contested, it will proceed through the family court process like any other case. If the parties agree to the divorce, but disagree about corollary issues such as spousal support or custody of children, a court can ‘sever the divorce’. This means that the divorce can proceed immediately pending the resolution of the corollary issues. Given that it can take many years for some spouses to finalize property and support arrangements, severing the divorce can be practically much more expeditious.
However, there are only three reasons why a judge cannot grant a divorce alone (leaving support, property and other claims to separate orders that can be made later). Neither of those three reasons relates to whether both spouses want the divorce. Those two reasons are:
- Any children are not being adequately supported financially. If there are children involved, section 11(1) of the Divorce Act mandates that there be adequate provision for them in place before a divorce will be granted. What that means, in the light of the Child Support Guidelines, is that the support must be either in accordance with the Child Support Guidelines or must be more than under the Guidelines, although the arrangements can be different. No matter the grounds for divorce or the method used to get a divorce, there must be satisfactory child support arrangements in place before a judge will grant the divorce.
- The spouse requesting the divorce is not removing religious barriers to remarriage. All a divorce order means is that the spouses are legally able to re-marry. But, the law does not mean the spouses can re-marry in their religion. A judge can deny a divorce to someone who is effectively preventing his or her ex spouse from remarrying by using his or her religion. Section 21.1 of the Divorce Act requires that a spouse who wants a divorce must file an affidavit saying that spouse has removed any religious barrier to remarriage that are within that spouse’s control. If the other spouse files an affidavit saying that is not true, that blocks the divorce. Obviously, there would be trouble for a spouse who files a false affidavit for any purpose.
- At least one of the spouses must have lived in the jurisdiction for at least a year to get a divorce in Canada. People cannot just come to Canada for their divorce. However, if neither party has lived in the jurisdiction of the Court for at least one year, then the Court probably will not even accept the Divorce Application.
Judges can also refuse to grant a divorce if the judge believes there has been “collusion” or “connivance” by the spouses – essentially the spouses are working together to get a divorce improperly. However, these are not things a spouse could raise to block a divorce.
If a judge is satisfied that the grounds for divorce exist and adequate provision for any children has been made, they will grant a divorce judgment. Once thirty days has elapsed from the date of judgment, the spouses will be legally divorced.
While you do not need a family lawyer to apply for a divorce, it is always advisable that you speak with a family lawyer before proceeding. A family lawyer can help you arrange your affairs so that a divorce can be granted more expeditiously and avoid the many pitfalls and obstacles that can slow the process.
John P. Schuman
Devry Smith Frank LLP
John is a Certified Specialist in Family Law. To learn more about John please click http://divorceangels.ca/vendor/john-p-schuman/?r=7699