The word "divorce" is often used to describe the end of a marriage (separation) and all of the issues which result from that event.
In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.
Here are some facts about which you may not yet know:
1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);
2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south. Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.
3. 99% of couples in Canada divorce on the basis of a one-year separation.
4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;
5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.
6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.
7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.
8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.
Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......
In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.
Here are some facts about which you may not yet know:
1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);
2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south. Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.
3. 99% of couples in Canada divorce on the basis of a one-year separation.
4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;
5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.
6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.
7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.
8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.
Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......
hello everyone,
ReplyDeletedivorce family law blog is the best for divorcee persons. I think this is a big success in the future. like this post so much. After read this blog I got something new from this site. keep it up for the great work.
thanks