Understanding A Contested Divorce In Ontario
No one anticipates a marriage is not going to last, and issues about divorce are far from a couple’s mind until issues begin to occur in the relationship. In Ontario, there are only three options or types of divorce, and understanding what is involved in each is essential to prepare for the process.
What are the three types of divorce in Ontario?
The three types of divorce possible in Ontario are a joint divorce, a simple divorce, and a contested divorce.
The joint divorce and simple divorce are similar and are often grouped together. In a joint divorce, both people in the relationship agree to the dissolution of the marriage. This is typically a very amicable process, and direct communication between the spouses or mediation is all that is needed to agree to the division of matrimonial property and other issues in the divorce, including issues relating to any children of the marriage.
An simple divorce differs from a joint divorce in that one partner of the marriage initiates the divorce process. This is done through filing a form 8A Divorce Application.
The other spouse is then served with the respective Divorce Application once it is issued in the Superior Court. If the other spouse does nothing after being served with the Divorce Application, the divorce is considered uncontested.
The contested divorce Ontario occurs when the Respondent spouse files an Answer (form 10) after having been served with the initial Divorce Application. The Answer allows the Respondent spouse to present his or her facts to the court or to argue any of the relief the filing spouse has claimed.
It is possible for one type of divorce to turn into another. Couples that initially agreed on the division of property or issues with the children may have disagreements that cannot be resolved, resulting in an uncontested divorce becoming a contested divorce Ontario.
A contested divorce Ontario where the couple cannot initially agree on the issues can become an uncontested divorce with discussion, which offers the couple greater flexibility in the terms of the divorce as well as a more collaborative process.
What are the grounds for filing a contested divorce in Ontario?
People may have many different reasons for choosing divorce instead of trying to reconcile the marriage relationship.
The courts in Ontario recognize three different reasons or grounds for divorce. These include adultery, cruelty or abuse in the relationship, or the separation of the couple.
Adultery can only be used as a reason for divorce by the spouse who was cheated on. In some cases, both spouses may have engaged in sex outside the marriage, but adultery can still be used as the reason for the divorce. The fact that adultery occurred, however, does not necessarily have an impact on issues such as custody or parenting of the children.
Abuse or cruelty in the relationship can be physical or emotional. It can include harm to the other spouse or the children of the relationship or those of other relationships, as well as threats or physical violence towards the spouse’s family members.
Patterns of behaviour, as well as the level of the abuse, the frequency of the abuse, and the results of the abuse on the spouse and family members are all factors that are considered by the court. A divorce lawyer is instrumental in these cases to collect evidence and to demonstrate to the court the impact of mental and physical cruelty in the relationship.
Separation is the last of the grounds for divorce recognized in Ontario. Separation can include living in separate residences for at least one year or living in the same home but separately for the same period.
The court provides the determination of separation based on the information provided by the spouses. It is possible to have an attempted reconciliation of the relationship in the year, providing it does not last longer than 90 days. This will not impact or delay the ability to file for divorce.
What should I do if the divorce is contested?
The first step for anyone facing a contested divorce is to retain a divorce lawyer. These professionals will walk you through the contested divorce process, helping you to understand the steps involved, the documents required, and even making an estimate of the time involved in the divorce.
It is essential to provide all documentation and information to your divorce or family lawyer. Remember, the lawyer is there to work on your behalf, and failing to share information or providing any inaccurate information only hampers your lawyer’s ability to represent your best interests.
What are the steps in a contested divorce Ontario?
If the divorce has been contested, you have received an Answer to you simple divorce Application or have been served with the initial divorce application.
When an Answer is filed, typically each party’s family lawyer gets in touch with the other in order to discuss the possibility of settlement, and to propose a timeline for the exchange of financial disclosure. This is an important step in the contested divorce process as it allows each party to receive financial asset information about the other spouse, which may not be available to them otherwise.
Once the information is gathered, the lawyers and their clients attempt to negotiate a settlement. This can be done through a number of processes, such as mediation, arbitration, or collaborative practices. These are cost and time-effective options that resolve the divorce issues and create a settlement without the need for a trial.
Step 3 (if required)
Should negotiations fail in a contested divorce, the family lawyers agree on a date to book a case conference with a judge at the Superior Court. Typically, this involves both of the spouses and their lawyers to attend a session with the judge in order to enumerate the issues that are present in the separation, each party’s view on the issues and the opportunity to request additional disclosure or requests to question.
It is normal for the judge to provide their opinion as to the issues in the case and help to negotiate or resolve the issues at the conference. In many cases, some or all of the issues are resolved during or soon after the first case conference. If further settlement negotiations fail, the Lawyer will then book a settlement conference for all of the parties to attend. This is another meeting with all of the parties and the judge in the hopes of settling the issues in the case.
If the parties have gone through the case conference and the settlement conferences, a pre-trial conference is held in order to prepare for the trial. In a small number of cases, the case goes to trial and the court makes a decision regarding the outstanding issues.