Divorce is governed by the Divorce Act of Canada.
There are three basis for divorce in Canada: living separate and apart for at least one year prior to divorce being granted, adultery of a spouse (only non-adulterous spouse may apply for divorce on this basis), and physical or emotional abuse.
A person may apply for divorce together with other corollary relief, such as custody, child and spousal support.
There are simple divorce proceedings, when the Applicant claims divorce only, joint divorce proceedings, if both parties are applying for divorce, and a regular divorce proceeding, where the Applicant claims some other heads of relief beside the divorce.
It is impossible to predict how long it will take to obtain a divorce. While uncontested and joint divorces may take 2-3 months, to get a contested divorce may take 2 years and even longer. Therefore, entering into a Separation Agreement addressing all of the issues related to the breakdown of the relationship is strongly encouraged by lawyers, as it may allow the divorce to proceed on an uncontested basis.
It is unlikely that the Court will grant the divorce without the children’s interests being addressed. Whether through a Separation Agreement, or an interim or final Court Orders setting out custody and child support obligations, these issues must be resolved, even if on a temporary basis, before the Court will be willing to grant divorce to the parties.
It is important to apply for divorce with the help of a lawyer, especially in cases of medium and long term marriages, where there are minor children, or where spouse(s) accumulated some assets during the marriage. There are some rules, conditions and time restrains that may be breached by an ignorant litigant which may have a great impact on the case, and which may not be easily rectifiable.
If a lawyer is involved at the outset of the proceeding, it may be possible to avoid lengthy and expensive litigation, as the lawyer may be able to help you to come to a quick resolution of some of the issues, or all of the issues. At each step of the proceeding it is the client who makes the decision, after being advised by the lawyer of the client’s rights, obligations, and options in each of the matters.
Each contentious divorce proceeding must go through several necessary steps and court hearings. There are rules regulating each of those steps. There are three types of Conferences, that a family proceeding will very likely go through. There may be motions brought by each party to address contentious issues. There may be questionings taking place.
It is not necessary to take each family matter up to trial. Each matter may settle at any time, depending on how much a party is willing to concede to settle it. In the vast majority of cases, the matters settle before reaching a trial, for various reasons. The main reason, of course, is the price tag attached to a contentious legal proceeding. Some parties settle because they want to finalize everything and go on with their lives.