In an earlier post, I spoke about Separation Agreements. I received many emails and questions from you on drafting certain provisions and then, inevitably, the next step: filing for Divorce. Here are seven essential things you need to know before you file for divorce:
1. Marriage Certificate: You will need a copy of your marriage certificate when you file for divorce. If you don’t have one, you can order a replacement (if you were married in Ontario). If you were married outside of Canada, you must use your best efforts to obtain a replacement certificate - however if this proves to be impossible, the court will still grant your divorce. If your marriage certificate is in a language other than English or French, you must have it translated by a certified translator.
2. Simple Divorce: Often also referred to as an 'uncontested divorce', a simple divorce is one in which the only request is for a divorce - as opposed to a divorce where you are seeking court orders with respect to division of property, spouse support and/or child custody, access and support. After the Application for divorce is filed with the court, a copy must be given to your spouse. Your spouse then has 30 days (60 days if served outside of Canada or the USA) to respond to the court if he/she wants to contest the divorce. If he/she doesn't file an Answer within the prescribed time, the divorce then becomes 'uncontested'.
3. Joint Divorce: With this type of divorce, both spouses sign the divorce papers. Neither spouse is suing the other for divorce - you are simply telling the court that you both want the divorce.
Simple or Joint? - There isn't really a difference at the end of the day between the two: the cost and the timing is generally the same. Some people want to file a joint divorce, but because it is too complicated to arrange for both spouses to sign/swear everything, they opt for a simple divorce where one spouse signs/swears the required papers - the other spouse simply signs a post card acknowledging receipt of his/her copy of the filed application for divorce.
4. First Filing: Once your divorce forms are completed, the first court filing fee is ($167). You or your lawyer can file the Application for Divorce with the court. In a simple divorce, your spouse must be given a copy of the filed Application:
5. Second Filing: The second of the two filings can be made after the court obtains something called a "clearance certificate" from an agency in Ottawa. This usually takes 8 to 10 weeks. However, if you haven't been separated for a full year yet, the second filing cannot be made until you have been separated for a full year. The second court fee of $280 is paid at this time.
6. Divorce Order: After the second filing is made, you should get your divorce order in the mail from the court 3 to 6 weeks later. Your divorce order will take effect 31 days after the judge signs it.
7. Divorce Certificate: The court does not send you a divorce certificate unless you request one and pay $19 for it. You are not required to get a divorce certificate - except when you want to get married again in Canada. (Note: you can obtain the certificate from the court by mail after the divorce takes effect.)
On average, the process takes 3 to 4 months before your divorce will be finalized. As noted above, the big delay is the court's wait for a 'clearance certificate' from Ottawa.There is no guarantee about timing. If you are planning to remarry, you are strongly cautioned not to make any plans until you have your divorce order in your hands.
For detailed information and specific legal advice please contact me at email@example.com