When a couple decides to divorce there are several steps that can, and in some cases need to be, taken. This process can be daunting but we hope that this roadmap will be helpful in terms of understanding the requisite steps and knowing what to expect at each step of the way. In most of our cases, we begin working on a file by attempting to negotiate a settlement among the parties. However, where negotiations fail or are inappropriate due to the circumstances of the parties, it is sometimes necessary to move the issues into the courtroom. There are other options available to litigants who prefer to avoid Court altogether, which are discussed in further detail below.
In Canada, divorce is considered to be “no-fault”, meaning that all that is required in order to obtain a divorce is that the parties have lived separate and apart for one year. There are special circumstances in which a Court will grant a divorce where the parties have not been separated for one year. A Court is the only body with the jurisdiction to grant a divorce. This means that, even if a couple is able to negotiate a resolution amongst them, they will need the assistance of the Court in order to obtain a divorce. These circumstances include;
- Adultery; and
- Physical and/or mental cruelty.
There are several other issues that need to be dealt with that stem from the divorce and/or separation itself. These are called “corollary” issues and can also be dealt with by the Courts. Also, a couple who is not married can engage the services of the Court to assist in the resolution of these issues. Corollary issues include, but are not limited to, the following;
- Custody and access of the children of the marriage;
- Child Support;
- Spousal Support;
- Possession and Ownership of the matrimonial home and/or other properties; and
- Equalization of Net Family Properties (for married spouses only).
It is important to note that a Court will not grant a divorce unless they are satisfied that proper arrangements have been made for the care and support of the children.