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I want to learn more about
divorce; where should I start? |
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In Canada,
divorce falls under the authority of the federal government. It has passed a
law called the Divorce Act. Because this is a federal statute, this means that
the law for divorcing spouses is the same across the country. You can find the
Divorce Act in the Statutes of Canada, Volume 4, Chapter D-3.4.
These
books are available at law libraries in the court house in your town, the
library of any law school and in municipal public libraries. There are also
many excellent self-help books available at municipal libraries to guide
you. |
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Can I apply for a divorce
in British Columbia, or must I apply in the province where we were
married? |
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The same law -
the Divorce Act of Canada - applies across the country so you may apply for a
divorce in BC, even though you were married in another province. There are
residency requirements, however.
In order to file an application for
divorce in BC, you or your spouse must have lived there for at least one year
immediately preceding your application. [The residency requirements are the
same for every province.] You will need a copy of your marriage certificate,
and if you do not have one, you should contact the appropriate place in the
place you were married to get one. If your spouse continues to live in that
province, it is open to him or her to file for divorce there. If by chance both
of you should file for divorce within 30 days of one another in different
provinces, then the province where the first divorce application [Petition for
Divorce] is filed will handle the case. |
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How do I go about starting
divorce proceedings? |
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Divorce
proceedings are started by filing a document called a Petition for Divorce. The
person asking for a divorce is called the Petitioner. The person being divorced
is called the Respondent.
You need to make a decision at the beginning
of the divorce proceedings about whether to hire a lawyer or not. If there are
any complicating factors, such as children, substantial assets, businesses, or
financial need that may require support payments for one spouse or children,
you would be well advised to use a lawyer. If your situation is uncomplicated
and it is unlikely that you and your spouse will disagree about the divorce and
the division of your assets, then you may well be able to handle it
yourself. |
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How much does a divorce
cost? |
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There is no
easy answer to this question. If you handle your divorce yourself, you will be
able to keep the costs to a minimum. This will include the filing fee of $210
for the Petition of Divorce. There is no charge for all other documents filed
after the petition. You will have to arrange to have the petition served on
your spouse and this will cost a fee if you use someone to do this rather than
doing it yourself.
If you consult a lawyer, you may be quoted a set fee
if the divorce looks straightforward. However, if unforeseen problems arise
that lead to additional work for your lawyer, then the set fee may not hold. If
your divorce is bitterly fought between the two of you, then it could take
months [or years] to resolve, many court applications, and possibly a trial. In
that case, your lawyer will charge you according to his or her hourly rate. You
will be told of this rate when you first see the lawyer and you will probably
be billed from time to time as your case goes on. Divorces like this may cost
thousands of dollars. |
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Are divorce applications
heard in family court? |
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No. In fact,
divorce applications are not handled in family court, as you might think.
Family courts are divisions of courts set up and administered by the provinces.
The Divorce Act is an act of the Federal Government of Canada, and so divorces
are heard in federally appointed courts.
In Alberta, New Brunswick,
Manitoba and Saskatchewan, this is the Court of Queen's Bench. In Newfoundland,
Prince Edward Island, Nova Scotia, British Columbia, the Yukon and Northwest
Territories, the Supreme Court [Trial Division] has the power to hear divorces.
In Ontario, this court is called the Ontario Court [General Division] and in
Quebec, it is called the Superior Court. In all of these courts, you begin
proceedings by filing a divorce petition with the clerk of the court. |
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I lost track of my no-good
husband 15 years ago, and I have no idea where he is; how can I divorce him
now? |
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You must either
serve your husband with the Petition for Divorce so that he gets a copy
personally, or get a judge to give you an order allowing you not to serve him
or to serve him in some other way. Your lawyer will ask you to do some legwork
here. You should contact any of his friends, relatives or employers that might
know where he is to see if they can put you in touch.
You should also
try to contact him at his last known address. Your lawyer will put the results
of these inquiries in a document called an affidavit and ask you to swear to
the truth of the information in the affidavit. It will then be filed at the
court house, and your lawyer will make an application to a judge for directions
about what to do next to try to bring the divorce proceedings to your husband's
attention. The judge will want to see from the contents of your affidavit that
you made a genuine effort to locate him.
The judge might do away with
any need to get the petition to your husband, or he or she might order that
your lawyer mail a copy to your husband's last known address or even advertise
a notice of the petition in the local newspaper in the community where your
husband was last known to have been. Usually, the judge will also order a
waiting period of about 30 days after mailing or publication to give the spouse
time to respond. Once the waiting period is over, if you have not heard from
your husband, your lawyer may proceed with your divorce. |
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What about paying child
support if I don't get to see my kids; do I still have to pay? |
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Yes, you do.
Canadian judges have made it clear that it is not acceptable to link child
support and access rights. It is wrong to refuse to pay child support for
children because a parent is having trouble seeing the children. It is equally
wrong to threaten a parent that he or she will not be allowed to see the
children unless the money is paid.
In a perfect world, parents would
always pay child support on time and access visits would always happen. In the
real world, there is a temptation and a tendency by some parents to link access
and child support together, but Canadian judges have repeatedly shown they will
not tolerate it. |
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What can I do if my spouse
won't let me have access to our children? |
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| If you cannot
work this out between yourselves, the first step might be to ask your lawyer to
work out a solution with your spouse's lawyer. If that does not work, you may
need to go to court to ask a judge for help in enforcing your access
rights. |
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What can a judge do to
help me get access to my children? |
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| A judge will
listen to both sides to determine the problems that are preventing access from
happening. The judge might make an order specifying access in very definite
terms. If there has been a long history of one spouse ignoring court-ordered
access, the judge could find the spouse in contempt of court for ignoring or
flouting a court order. |
