What's the Difference Between Uncontested and Contested Divorce in Canada?
Uncontested and Contested Divorce: Know the Differences
Turns out forever isn't as long as you thought. And it isn't ending as nicely as you hoped, now that contested divorce is on the horizon.
You're not alone - four in ten first-time marriages in Canada end in divorce.
But not all divorces are alike. Keep reading for a break down the types of divorce, how the legal procedure differs between the two, and how you should prepare.
The Three Types of Divorce
In Canada, there are three main types of divorce: an uncontested divorce, a joint divorce; and, a contested divorce.
The difference between the three is simple, but the procedural differences that result from them make for a wildly different divorce experience.
Let's break it down.
What is an Uncontested or Joint Divorce?
A joint divorce is what everyone hopes for. There is no defendant. Both parties jointly file the statement of claim for divorce.
All decisions have been made and agreed on. There is no need for a defendant because there is nothing to defend. There is no requirement of service of documents; there is no 30-day appeal period after the divorce judgment is granted.
An uncontested divorce is one where one party decided to initiate the divorce by filing a Statement of Claim for Divorce or Statement of Claim For Divorce and Division of Matrimonial Property. The Statement of Claim is then personally served on the estranged spouse.
The estranged spouse can either:
- File a Statement of Defence disputing any of the facts or the relief claimed
- File a counter-claim, ie. a counter-suit claiming different facts/relief than what the Plaintiff is asking for
- File a Demand of Notice stipulating they are not contesting the divorce and will not be filing further documents but wish to be served with all documents filed in the court proceedings
- Simply do nothing and wait to be noted in default
If the estranged spouse elects to only file a Demand of Notice or elects to "do nothing" the divorce is deemed uncontested.
Unfortunately, most couples are not that lucky to be able to go through a joint or uncontested divorce and must go through a contested divorce.
What is a Contested Divorce?
A contested divorce, as the name implies, is the exact opposite of an uncontested divorce.
In this kind of divorce, spouses disagree about some or all of the issues raised. This often relates to the children, spousal support, and division of financial assets.
Unsurprisingly, this makes everything more complicated.
As such, both parties will have to file court documents outlining their stances on the issues at hand. You should also get lawyers involved (at least, if you want things to go in your favor). This is where the process starts to drag out.
As you can imagine, the legal process behind the two types of divorce is different. This is related to whether or not the couple in question can agree on anything and how much they can agree on.
This will also change how long it takes to get your divorce finalized.
This isn't your typical couples argument. When a couple can't agree on divorce matters, you have to get everyone's lawyers involved to sort it out.
A few things are similar--specifically, all Canadian divorces are governed by the Federal Divorce Act. However, procedural rules can vary depending on what territory or province you live in, so it's good to get all the details you can from your lawyer.
The less that is contested in a divorce, the happier everyone will be, including your bank account (hello, steep legal fees!)
In an uncontested divorce, couples can reach an agreement on the financial terms and division of assets before the case goes to court. This is called a Matrimonial Property and Settlement Agreement.
Judges and lawyers prefer to settle out of court wherever possible, and so should you if you can help it. A settlement by definition means that neither spouse can contest it later because both parties have agreed to it.
If you can agree on everything and already know how divisions will happen, then you might be one of the couples that decide to do your own divorce. Keep in mind, however, that you have to be in total agreement, otherwise things can get out of hand quickly.
When things get out of hand, or when couples cannot agree, you're staring down the barrel of a contested divorce.
If you were thinking of representing yourself, a word to the wise: it's a bad idea in a contested divorce. Even if you are a lawyer yourself.
There are a few reasons for this. First of all, divorces in which spouses cannot agree are legally complex (translation: messy). This is far too much for the legally untrained to handle on their own.
Second: emotions run too high in this kind of divorce to make it a good idea to represent yourself, even if you are a lawyer. People are angry, feelings will get hurt, and details will get neglected.
What Happens if Uncontested Becomes Contested?
Then, there is the fun situation where an uncontested becomes a contested divorce.
There are plenty of divorces that start out contested and end up uncontested and settled out of court. This is to everyone's benefit--it is faster, less complicated, and less of a financial burden for all involved.
An uncontested divorce that becomes a contested divorce, however, is another beast entirely. Once this happens, you're going to have to call a lawyer if you have not already, so that they can help you take the appropriate legal action.
The Legal Process of Divorce
With this in mind, let's talk about the legal process behind a contested divorce. This will help you know what to expect and how to proceed with your lawyer once your divorce is set in motion.
Understanding Grounds for Divorce
Before you do anything, you need to understand what constitutes the legal grounds for divorce.
The potential grounds for divorce are the same regardless of whether you're getting an uncontested or contested divorce. Either way, you should know what they are so your lawyer knows how to proceed.
In Canada, there are three reasons which are recognized as legally valid for pursuing a divorce: adultery, abuse or cruelty, and separation.
Note that the grounds for divorce are not always the deciding factor in other matters like custody and child support, though they may be taken into consideration depending on the circumstances. If your spouse was abusive, for example, then this may be counted in your favor in a custody decision.
Adultery in Canada is defined as one or both partners having sex with someone else during their marriage.
The offended spouse can instead choose to forgive. If they go that route adultery is no longer legally valid as grounds for a contested divorce.
You should also keep in mind that only the spouse who was cheated on can use adultery as grounds for divorce.
We mentioned earlier that the grounds for divorce aren't always the deciding factor in other areas of the divorce. This is also true of adultery--it won't affect a custody decision, for example, unless that conduct is relevant to that spouse's ability to parent.
The second ground for divorce is abuse, which can include physical and mental cruelty.
Physical cruelty includes:
- Physically harming your spouse or children, such as hitting
- Sexually abusing your spouse or children
Mental cruelty includes:
- Harassing or insulting your spouse or children
- Humiliating your spouse or children
- Threatening your spouse, your spouse's family, or your children
- Emotional manipulation
Note that these are not one-and-done factors. For abuse or cruelty to be considered grounds for divorce, the abuse must make it intolerable for the victim to continue living with their abuser.
A number of factors are taken into consideration to decide what constitutes intolerable. These include the actions of the abuser, how often they occurred, whether they were intentional, and the impact on the victim.
Keep in mind that the same basic rules apply to abuse: only the victim of abuse can cite abuse as grounds for divorce, and courts will often refuse joint requests for divorce based on cruelty.
In Canada, a separation is when a couple has decided to live apart from each other because a relationship has broken down.
It's easiest to prove a separation if you're living apart, though it can be proven if you are still living in the same house. Examples include:
- Living in separate rooms
- No sexual relationship
- Little or no spoken communication
- Little or no time spent together, including grocery shopping or chores
- Entirely separate social lives
A judge will ultimately decide what constitutes a separation. While there is no time limit on a separation, you must be separated for a minimum of one full year to use separation as valid legal grounds for divorce.
However, you are permitted to live (cohabitate) as man and wife or as spouses if in a same-sex marriage, for a period not exceeding 90 days without restarting the one year of separation.
Meeting with an Attorney
Once you know that you will have a contested divorce and what the grounds are, it is vital to get in touch with a divorce lawyer (sometimes called a family lawyer) as soon as you can.
Once you've interviewed a divorce lawyer and decided on the lawyer that you will use, they will sit you down and interview you thoroughly. Be prepared to answer all of their questions with as much detail and honesty as possible.
This is also when they will gather all documents and information relevant to your divorce, including provincial marriage certificate, marital assets, children, and anything else you believe to be pertinent.
This will entail a lot of work on your part beforehand, so come prepared. Read everything and make copies of all paperwork your lawyer files for you.
You should also come prepared with questions. Here are seven questions to get you started.
Statement of Claim for Divorce/Division of Marital Property
Once you have met with your lawyer and filed a divorce petition based on the information you provided, your lawyer will serve the Statement of Claim your spouse. This can be done either in person through a friend but is more commonly done through a process server.
Usually, this is a reasonably quick process. If, however, your spouse cannot be found for some reason, a notice for substitutional service may be published in the local papers or social media and you will have to wait a pre-determined amount of time before being able to obtain a default judgment.
Typically, your spouse has 30 days to respond to the Statement of Claim.
If you do receive a Statement of Defence and possible counter-claim to the Statement of Claim the designated time frame, the next step in a contested divorce is what's called the discovery (disclosure) process.
This is a lot like the extensive interview your lawyer did with you before you began this process. Essentially, the two spouses will obtain detailed information from each other about issues related to their divorce, including assets and custody.
This is done through affidavits, written interrogatories, and document requests.
Like the Statement of Claim, there is a time limit on how long you have to respond to discovery requests.
It is common for spouses to miss deadlines in an attempt to drag the divorce process or hide assets, so you and your lawyer need to be on top of your spouse to keep the timeline on schedule and seek appropriate court orders to compel the disclosure of information or to impute income where appropriate.
Once the discovery process is complete, you enter settlement negotiations. Uncontested divorces end here, and most judges and lawyers will try to encourage a contested divorce to resolve here as well.
If you and your spouse cannot agree, a judge may order a third-party mediator to try and help you work out your unresolved conflicts or you may agree to a binding judicial dispute resolution (Binding JDR) process.
If you still cannot reach an agreement, the discovery process resumes and you are scheduled for a court date.
This is where things get messy (if they have not already).
During your divorce trial, both sides will be allowed to call witnesses, cross-examine witnesses brought by the other side, and make closing arguments.
It's important to talk thoroughly with your lawyer about your plan beforehand, and let them take the lead once the trial commences. Remember: emotions are running high. You need a professional.
How long it takes for a judge to reach a decision is dependent on how complex your case is.
After the Trial
Once the judge has reached their decision, one of a few things can happen.
In the best case scenario, that's the end of your contested divorce and you can carry on with your life; once the appeal period has expired your or your lawyer can order a Certificate of Divorce which you will need if you ever want to re-marry.
Otherwise, both parties have the right to file an appeal for relief from the judgment, which the other party has to respond to within 30 days. If the appeal is approved, you or your spouse will have the chance to argue why the ruling was unfair.
This can restart the process for another few months.
Once everything is finalized, here are eight steps you should take next.
Preparing for a Divorce
Nobody wants to think about having a divorce, and you certainly shouldn't have to deal with it alone.
We cover various areas of family law, including divorce issues, child custody, child support, common law relationships, and other forms of domestic partnership.
If you need a lawyer, get in touch today via our contact page.