Many Canadians may not be aware or care that marriage is declining in the country, as is the divorce rate. Most think that the 42,933 divorces granted in 2020 are academic.
However, if you are on the receiving end of divorce papers, it becomes real very quickly. You may have been expecting it, but getting served with these documents can still throw you for a loop.
Don’t panic if you’re not sure what comes next. You have 30 days to respond and can put it to good use. Have an experienced family law lawyer look over the document and get legal advice. You want to ensure there are no violations of your legal rights and how to respond.
In the meantime, it won’t hurt to brush up on the legal process of divorce and the family court requirements. Here is a quick guide for you.
How Does the Divorce Process Work in Canada?
The federal Divorce Act governs the terms and conditions of divorce in Canada. However, the various provinces or territories control the divorce process, including all required documents and procedures.
For the forms to submit, requirements, and the courts of jurisdiction, refer to your provincial or territorial authority. For example, if you reside in Ontario, the Family Law Act governs the divorce process.
Wherever you live in Canada, you must submit your divorce application to a court designated in the Divorce Act. You must meet the following conditions.
- Your marriage to your spouse is legal under the laws of Canada or another country recognized by Canada
- There is a breakdown in your marriage
- You reside where you applied for divorce for at least one year, with some exceptions for non-residents
Grounds for divorce
The Divorce Act only recognizes marriage breakdown as grounds for a divorce, essentially making it a no-fault petition. To prove a breakdown in the marriage, you need to meet one of the following criteria:
- Lived separately for at least a year
- Physical or mental cruelty
For divorce applications based on separation, you and your spouse may choose to stay in the same house. If you’re attempting to reconcile, you can live together for as many as 90 days out of the year’s separation. These conditions can complicate separation, so consult with a lawyer if you fulfill the requirements.
Types of divorce applications in Canada
Canadian law touches on several significant aspects of divorce, such as child custody and spousal support. The complexity of the divorce process depends on the type of divorce application.
Uncontested divorce – Both spouses agree they want a divorce and on many issues of separation and divorce. These issues include child custody and support, alimony, and property division. The divorce application can be single, where one spouse files for divorce and serves it to the other. It may also be a joint application, where the spouses apply for a divorce together.
Contested divorce – On the other hand, a contested divorce is when spouses disagree on most things, including getting a divorce. The spouses challenge one or more divorce terms, often child custody and division of property. In most cases, a contested divorce requires the services of family law lawyers and the intervention of the family court.
Also check: Divorce & Family Lawyer in Vaughan
General steps of the divorce process
While the specific process may vary by province or territory, the divorce process in Canada follows the same general steps.
- Live separately from your spouse for at least a year unless claiming physical or mental cruelty or adultery. (See Divorce Act s. 8(2)(b)(ii))
- Apply for a divorce using the forms provided by the court office or information center of your province or territory. You may also obtain the documents online or from family law lawyers.
- Choose between no-fault (separation) or fault (adultery or cruelty) grounds for divorce. If suing for divorce based on adultery or cruelty, you will need to prove it with the help of a lawyer. You will not be required to wait one year to file for a fault divorce.
- Specify if your divorce is contested or uncontested. Your divorce is most likely uncontested if you have a separation agreement.
- Specify your preferences for parenting time, decision-making responsibilities or parental support in your application.
- File the application with the courthouse or have your lawyer do it. Pay the fee and any other formalities required for your province or territory. When in doubt, ask your lawyer or clerk at the court. In Ontario, a divorce application carries a fee of $202.
- Wait for clearance from the divorce registry and receipt of the divorce papers by you or your spouse. You or your spouse has 30 days (60 days if you or your spouse is not in Canada) to respond. Skip this step if you applied jointly (no respondent).
- If there is no response or you applied jointly, submit an affidavit of divorce and a draft divorce order to set down your divorce with the court. However, the process becomes more complex if you or your spouse submits an answer that challenges the application. Consult with a family law lawyer in your province or territory for the next steps.
- Stand by for the court’s decision to grant the divorce upon review by a judge. You will receive a notice if your application is successful.
- Obtain a copy of your Certificate of Divorce, typically 30 days after the court issues a Divorce Order. You will need the certificate to prove your divorce is legal if you intend to remarry.
What Should You Do After Being Served With Divorce Papers?
If someone serves you with divorce papers, that means your spouse has started the divorce proceedings by applying with the family court. In that case, your spouse is the applicant or claimant, and you are the respondent. If you accept the papers, you have 30 days (or 60 days if you are not in Canada) to submit an answer to the application. You can refuse to accept the divorce papers, but that will not stop the process.
Under the Divorce Act, the applicant or claimant cannot serve the papers personally to the respondent. It must go through another person, typically a process server, who then files an affidavit of service or similar document to the court. The document attests that you have been served the papers personally.
What should you do next?
Note that the following guide closely adheres to the divorce process and forms for Ontario applications. Form names, links, and fees may differ for other provinces and territories.
Check what’s inside
The divorce papers should provide the basic information about your marriage, separation, spouse, and children of the marriage, if any. Pay special attention to any requests your spouse has made to the court for the terms of the divorce. These include alimony, child custody, and division of property court orders.
Review the forms
Check the documents and forms you receive, which will provide you with important information. It should include your court date, the time limit for your response, and instructions for the next steps.
Take quick action
If you object to anything in the divorce papers or wish to add your requests, you must respond within the time limit. You can do this by completing the proper forms for submission to family court within 30 days. At this point, it would be advisable to have a family law lawyer help you.
For example, you must fill out Form 10: Answer if your spouse applied for divorce with the Ontario Superior Court of Justice. Your response should detail why you agree or disagree with the applicant and your claims.
Depending on the circumstances, you may also need to submit other documents. One would be Form 35.1: Affidavit for parenting time or decision-making responsibility claims, affirmed by a commissioner of oaths. You may also need to submit financial statements for child support, spousal support, and property division issues.
Make two copies of all the forms and documents you file with the court to keep one copy for yourself.
Serve your documents
After completing the necessary forms, the next step is to serve them to all parties in your divorce proceedings. You can serve the documents using a process server, anyone over 18, or a regular or special service. Ensure you count the days when delivering these documents, or the court may not accept your filings.
File your proof of service
After serving the papers to all parties in the divorce case, you must complete a proof of service and an affidavit of service as proof of delivery. In Ontario, you must fill out Form 6B: Affidavit of Service for each party served with papers.
File the original forms with the courthouse identified in the forms you received from the applicant. You should also include a copy of Form 6B and all original documents in the Continuing Record of your divorce case.
Court filing fees in the Ontario Superior Court of Justice depending on the stage of your divorce proceedings and the document type. The fees will also adjust according to the terms of the Administration of Justice Act. Fee waivers are also available for some applicants.
Wait for your day in court
The Canadian family court system makes every effort to prevent you from the expense of a court trial. In Ontario, that entails going through several steps in the family court process. These include the following:
Mandatory Information Program (MIP) – In most cases, you and your spouse must attend MIP sessions. You typically need to attend your sessions no later than 45 days after the start of the court case. Sessions are one hour long if you have no children and two hours if you have children.
As a respondent, you will receive notice of your MIP session schedule together with your divorce papers. You must attend it unless you are exempt. If you fail to show up, you may face penalties or sanctions. You may request to reschedule if you are unavailable on the scheduled date.
MIP sessions discuss the options available other than a trial, including mediation and dispute resolution processes. You will also learn the effects of separation and divorce on children, legal issues, and the court process.
After completing your MIP session, you will receive a certificate of attendance. File it online with the court as soon as possible.
Conferences – Family court cases typically involve at least one conference, as described in Rule 17 of Family Law Rules. It may be a case, settlement, or trial management conference. A judge will determine what type of conference and the frequency of meetings for your divorce case.
You, your spouse, or the judge decide on the schedule, and you must attend each with your lawyer. The general purpose of the conferences is to save you time and costs.
Case conferences help you identify and resolve issues with your spouse before going to court. A settlement conference is when you and your spouse can try to settle any disputes. Failing that, you may need to attend a trial management conference to get ready for your court date.
Motion – If you are going to court, you can expect it will take a few months before your divorce is final. In such cases, you may need to bring a motion before the family court judge to make temporary arrangements. For example, you might need the judge to issue an interim order for child custody or support.
What Does the Divorce Process Look Like for Claimants?
What if you’re the claimant or applicant? The divorce process follows the same general steps above. It begins with filing the divorce application and serving divorce papers to your spouse.
You must personally serve the divorce papers through anyone over 18 or a process server. However, you can serve other documents to your spouse or their family law lawyers at their registered addresses through the following options:
- Mail or email
- Document exchange
Serving documents to a third party
Some divorce cases may necessitate serving documents to a third party. You can serve the papers personally without a process server or other party to the following third parties:
- Representative of a First Nations Inuit, Métis community, or band
- Children’s aid society
- Minister of Children, Community and Social Services
- Municipalities, except lower-tier cities in a regional municipality
- Director of the Family Responsibility Office
- Children’s Lawyer
- Public Guardian and Trustee
- Registrar General
Serving documents outside of Canada
If your spouse or other party is outside Canada, serving documents may require you to follow Hague Convention rules. For example, some countries require you to serve documents through a Central Authority instead of the regular or special service methods. Others may require a translation of the document.
Wait for the response
After serving all the documents and the court accepts all the Affidavits of Service, the next step is to wait. If you need an answer from your spouse, your wait time will depend on circumstances or stipulations by the family court.
You wouldn’t need to wait for a response if you submitted a joint and uncontested divorce. You only need to wait for the court to hand down a divorce order.
Check your email for the status of your divorce application from the court, or call 613-957-4519. You can also make a search request by filling out this form. Print and send the completed form to the following address:
Central Registry of Divorce Proceedings (CRDP)
Department of Justice Canada
284 Wellington Street, Ottawa ON K1A 0H8
What happens if your spouse actively avoids being served?
When your spouse is unwilling to go through a divorce, they might actively avoid receiving the divorce papers. They might even leave the city.
In that case, you can bring a motion to request the judge to order a “substituted service” as described in Rule 6(15) of Family Law Rules. The court will decide the method of serving divorce papers to your spouse. It may also choose that service is not required according to Rule 6(16) for some divorce cases.
What if your spouse doesn’t respond?
Your spouse may not submit an answer to your divorce papers in time. Don’t worry if that happens. Your application can still go ahead. Submit an Affidavit of Divorce, draft divorce order, and Clerk’s Certificate to the court and wait for the decision to grant a Divorce Order.
File evidence of serving the documents
Remember to provide proof of service for every document you serve by completing Form 6B: Affidavit of Service. Follow the steps below:
- Tick the boxes on when, where and how you served the documents
- Affirm that the information you provided is true by signing the form in front of a commissioner of oaths
- File the form and copies of the documents you served with the court online or in person
What To Consider When Hiring a Divorce Lawyer in Toronto
Divorce proceedings can be as simple as filing an application for divorce and waiting for a divorce order. That is the case for a joint uncontested divorce, which you can do on your own.
However, you might need a family law lawyer in Toronto, even in an uncontested divorce. Navigating the court and documentary requirements can be pretty confusing. In the case of contested divorce cases, a competent lawyer is a necessity.
The problem is finding one who will guide you through your divorce proceedings as quickly and stress-free as possible. Here are points to consider when hiring a divorce lawyer in Toronto.
Experience and specialization
All Canadian lawyers have a basic knowledge of family law. However, you want a lawyer with several years of specialization in divorce and family law cases. Experience is critical to ensure you get the best legal advice possible.
An experienced divorce lawyer is well-versed in all aspects of the divorce process. They are in the best position to advocate for your legal rights when it comes to your children and finances.
During your initial consultation with a family law lawyer, ask about their experience and track record with divorce cases.
Divorce law is complex, especially in Canada, where laws differ for every province and territory. You want to hire a lawyer who practices in your province and city.
Aside from having an intimate knowledge of location-specific laws, they are also likely to be familiar with the courts. They know the people with an active role in your divorce, including judges, clerks of the court, and process servers. That can significantly help the process go smoothly.
A local lawyer from a small firm is also likely to charge reasonable fees compared to larger practices. You get the same level of legal expertise without breaking the bank.
Focus on mediation
Many lawyers like to come off as fierce and combative, which can be compelling when you’re hurt or angry. However, you want someone calm and level-headed in an emotionally stressful case like divorce.
The goal is to get fair terms in the divorce, not win a war. While putting one over your spouse in a bitter divorce might be tempting, that can be an expensive undertaking.
Find a lawyer focused on mediation, avoiding the costs of a court trial as much as possible. Ask them how many cases they handled that ended in a settlement. If the answer is most of them, you have a good candidate.
A settlement is not going to be possible in every case. However, a lawyer with the right attitude will most likely bring your case to an amicable conclusion.
While you want a lawyer willing to negotiate, you don’t want a pushover. Find a divorce lawyer in Toronto who can be assertive without being aggressive. Your lawyer should be ready to go to bat for you in negotiations and court when necessary.
|Did you know?
As some divorces can last for more than a year, either party can file for an interim order. An interim order is a temporary order addressing critical issues until the end of the divorce proceedings. These include spousal and child support, parenting arrangements, and possession of the family home.
Are You Getting a Divorce? Contact Nussbaum Law Today
If being served with divorce papers has thrown you for a loop, take a breath. This guide helps you manage your expectations about the divorce process in Ontario, whether you are the respondent or claimant. It can help you make rational decisions about what to do next.
Whatever your situation, you can avoid a lot of stress and mistakes by getting legal help. Nussbaum Law is a local team of experienced family law lawyers in Toronto focused on mediation. We believe that everyone has a right to affordable legal representation.
You can get through the emotional rollercoaster of the divorce process successfully by hiring a Nussbaum Law divorce attorney. Contact us now for a free case evaluation and to set your mind at rest when served with divorce papers.
Filing for divorce is often a complex and expensive process. Schedule a consultation with our team of divorce lawyers at Nussbaum Law to know your options and legal help.
FAQs on What To Do After Being Served With Divorce Papers
What is an Affidavit of Service (AOS) or Proof of Service (POS)?
Canadian law requires claimants to provide the court with written documentation of service. The Affidavit of Service (AOS) or Proof of Service (POS) is a form notarized by a commissioner of oaths for taking affidavits. It shows that you served the respondent with a form or document using a legal method. The person designated to serve the papers completes the form and files it with the court as soon as possible.
Can a judge refuse a divorce in Canada?
Divorce is not an absolute right in Canada. The judge can decide not to grant a divorce order for technical or other reasons. One would be that the spouses have not been living separately for the mandatory year. Another is improper completion and filing of court documents. Some judges may refuse a divorce application for collusion or condonation.
What is a judicial case conference?
Divorce cases typically include at least one conference. A judicial case conference is a short, private meeting with the court judge and the spouses. The goal is to allow the spouses to resolve their issues before going to court.
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