Preceding with the Divorce Proceeding


When you and or your ex files an application with the court, the process of divorcing begins. The Petition for Divorce usually describes the length of the marriage, the legal grounds for seeking the divorce, the income and assets of the applicant spouse, and the children of the marriage. Custody, child and spousal support are also proposed. Applications for the division of property (governed by provincial or territorial statutes) are often joined with the divorce petition.

Some provincial or territorial rules require an application for property division to be made in separate documents, but permit it to be heard at the same time as the divorce petition. Other jurisdictions' rules permit property claims to be included directly in the divorce petition. Occasionally, an application for property division has already been made and decided before the divorce proceedings begin.

While you can file a petition before you've been separated for a year, your divorce won't be granted until that one-year timeframe has elapsed if "separation" has been your grounds for divorce.

The petitioner is the person asking for the divorce. The respondent is the spouse who is being divorced.

Once filed in court, the petition is then served on the respondent who has a specified time in which to answer the petition. If you don't know where to serve your ex, there is a provision that allows for the notification through advertisements placed in newspapers. This is how I divorced my first ex when he was living in Australia, since after I flew the coop I had no idea where he was.

A response isn't usually filed if the petition includes the terms of a signed separation agreement. Nor is a response given when the respondent agrees with the petition. Only in cases where the divorce is being contested does a response come into play. According to a report by the Canadian Department of Justice, less than four percent of divorces are finalized by a contested hearing in Canada.1 In most jurisdictions, an uncontested petition can proceed without an oral hearing. A judge reviews the documents and makes a divorce judgment.

If neither party appeals the divorce judgment, it takes effect in 31 days. If there is an order regarding matters such as child support, custody, and access as part of the judgment, this part of the judgment may take effect immediately.

If your old mate contests the divorce, you will be given an opportunity to respond. Now we're into big-time negotiations, mediation, whatever it takes to resolve the disputes.

In some provinces, a pre-trial hearing is required to mediate a settlement or, at the very least, obtain agreement on as many issues as possible in order to reduce the length of the trial. If the disputed issues are resolved, the divorce will proceed as if it were uncontested. If issues are not resolved, an answer is filed and the divorce is then contested.

Whenever important issues, such as custody, child and spousal support, or possession of the matrimonial home cannot be resolved quickly, your lawyer will suggest you file for interim orders. Examinations for discovery, during which each partner is questioned by the other's lawyer, are held so each side can question the other party under oath in preparation for trial. Disputes regarding custody or access to the children will usually result in an assessment by a psychiatrist, psychologist, or a social worker.

Everyone keeps negotiating all through this process and if at any time everyone can come to an agreement, you can draw up and sign a separation agreement and get divorced. If, after discoveries, you and your ex still can't see eye to eye, a trial will be ordered. During this trial each party presents evidence on each of the issues in dispute. The judge then makes the final decision. The judge's rulings on child support and other issues are included in the divorce order and, if no appeal is filed, you'll be divorced 31 days later.

Since the Divorce Act makes a distinction between the act of freeing you from the legal ties of marriage, and finalizing a variety of other issues including spousal support, child support, custody and access and equalization, you can actually get a divorce and remarry before all the other "collateral issues" are resolved.

1. Department of Justice, Evaluation of the Divorce Act, Phase II: Monitoring and Evaluation (Canada: Bureau of Review, 1990)





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