Divorce/Divorce Act
|
|
Divorce - Divorce Act
What is a "spouse"?
A spouse is a term that means husband or wife. It means a married person of either sex, so when we use the word in these questions about divorce, it means either the husband or wife.
I want to learn about divorce law. Where should I start?
In Canada, divorce falls under the authority of the federal government, which has passed a law called the Divorce Act. Because this is a federal statute the law for divorcing spouses is the same across the country. You can find the Divorce Act in the Statutes of Canada. The Statutes of Canada are available at
- the law libraries in the courthouse in your town or city,
- the library of any law school, and
- the municipal public libraries.
The Statutes are a series of volumes which set out the federal laws of Canada. There are also many excellent self-help books available at municipal libraries to guide you.
Also see the Department of Justice website. Another site to check out is Access to Justice Network (ACJ Net)(select keyword: Divorce and Separation).
Is the Divorce Act online?
Yes. If you want to read the Divorce Act online, see the Department of Justice Canada website.
I was married in Nova Scotia and moved to Alberta two years ago. Can I apply for a divorce in Alberta, or must I apply in the province where we were married?
Because the Canadian Divorce Act applies across the country, you may apply for a divorce in Alberta even though you were married in another province. There are residency requirements, however.
In order to file an application for divorce in Alberta, you or your spouse must have lived there for at least one year immediately preceeding your application. (The residency requirements are the same for every province.) Since you moved to Alberta two years ago, you may file for divorce in Alberta. You will need a copy of your marriage certificate, so if you do not have one, you should contact the appropriate place in Nova Scotia to get one. If your spouse continues to live in Nova Scotia, it is open to him or her to file for divorce in Nova Scotia. 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, called a petition is filed will handle the case.
There is a Central Registry of Divorce Proceedings which ensures duplicate divorces from being granted. Courts file divorce proceedings with the registry once a divorce is initiated to check if that divorce has already been granted. If it has, the new action will be discontinued
How do I start divorce proceedings?
The procedure for divorce proceedings will be set out in the Rules of Court of your province. If you are starting a divorce action you will typically file a Statement of Claim in which you will be called the plaintiff and your spouse will be called the defendant.
You need to decide 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 should 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 be able to handle it yourself. There are many excellent self-help guides on the market to help you. You can also buy divorce petition forms at any stationery store or access them online if your province makes them available through a family agency or through the courts.
What do the terms "petitioner" and "respondent" mean?
The petitioner is the person asking for the divorce. He or she "petitions" or asks the court to grant an order for divorce. The respondent is the other spouse, either the husband or the wife, who is being divorced. He or she is given the chance to "respond" and so is called the "respondent".
In some provinces such as Alberta and British Columbia, the person asking for the divorce is called the plaintiff and the other spouse is called the defendant. These are the same terms used for most other kinds of legal actions.
How do I find a good divorce lawyer?
One of the best ways to find a lawyer who practises in a particular field is to call a lawyer referral service. Most provinces have this service and usually there is a toll-free number available so that you do not have to pay long distance charges if you are outside a major city. See the Department of Justice Canada's website for a list of services
In Alberta, this service is found in the white pages of the telephone book under the listing Law Society of Alberta Lawyer Referral Service and the number for all of Alberta is 1-800-661-1095. If you call this number, you will be given the names of three lawyers near you who practice in the area of law you are interested in. You may then make an appointment with one or all of them to assess your case. You will be given one half-hour interview at a nominal charge. You must then decide if you would like to hire one of the lawyers to handle your case. The lawyer's normal hourly rates will apply after the initial interview.
Another good way to find a lawyer is to ask for referrals from others who have been through a divorce and were pleased with the services of their lawyer. You can also check the yellow pages under Lawyers. Many lawyers advertise there and will state if Matrimonial Law is one of their areas of practice. The most important thing is to find a person you feel comfortable with and with whom you can communicate well.
Many lawyers who practice in the area of family law, now practice Collaborative Family Law. These lawyers endeavour to work together for the good of their clients and to try to make the process less adversarial. For more information on how to find a collaborative family lawyer in your area contact your provincial Law Society. The Federation of Law Societies of Canada website contains links to provincial law societies.
How much does a divorce cost?
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 a filing fee which will be in the region of $200 for commencing the action. 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 appears 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.
Are divorce applications heard in family court?
No. Divorce applications are not handled in family court because family courts are 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.
I lost track of my husband 15 years ago and have no idea where he is. How can I divorce him?
You must either serve your husband with the claim 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. You should also try to contact him at his last known address.
Your lawyer will include 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 courthouse 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 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 order that your lawyer mail a copy to your husband's last known address, or 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.
This page was last updated in June, 2006.
Back