Embarking on the path towards divorce is a significant step that is both emotionally challenging and legally complex. However, understanding the divorce application process in Ontario can be the first step in moving forward.
Contested vs. Uncontested Divorce
In an uncontested divorce, both parties agree on all issues, including grounds for divorce, decision making for children, child and spousal support, property division, etc.. In these cases, the process can be relatively swift and less expensive, as it eliminates the need for lengthy negotiations and court appearances.
Contrarily, a contested divorce happens when the parties cannot agree on one or more issue(s). This requires more court involvement, potentially including settlement conferences, motions, and even a trial, making the process longer and more expensive.
Filling Out the Correct Forms
Initiating a contested divorce process in Ontario involves completing and filing specific forms with the court and making sure they are served on the other party:
• Application (Form 8A): This initial divorce application provides the legal grounds for the divorce, detailing information about the parties involved, the basis for the divorce, and any claims regarding child decision making, child and spousal support, property division, etc., as applicable.
• Financial Statement (Form 13 or Form 13.1): This form provides an overview of your financial situation, detailing your income, expenses, assets, and debts. Form 13 is used when the claims only involve child or spousal support, while Form 13.1 is required when property claims are also involved. However, these forms are not always filed; they're only necessary if financial issues are at stake, such as child support, spousal support, or property division. Sometimes, parties may agree on these issues but disagree on parenting matters like decision-making or parenting time arrangements for the children.
• In case of disputes regarding decision-making (custody), or parenting time (access), Form 35.1 (Affidavit in Support of Claim for Decision Making or Parenting Time) may need to be completed.
• Affidavit of Service (Form 6B) will be needed to confirm for the court that all of the necessary documents were served on the other party before the court will allow you to proceed with your divorce.
Remember, seeking legal advice is wise to determine which form is appropriate for your case.
First Appearance and Case Conference
If the divorce is contested, usually the next step in the is the First Appearance. These meetings in the presence of the opposing party involve a court clerk who ensures all relevant documents have been filed with the court and served on the other party.
Following the First Appearance, the clerk typically would schedule a Case Conference. Here, you meet with a judge to discuss the issues and the likelihood of resolving those issues and settling your case. This conference offers an opportunity to clarify any misunderstandings and define the scope of the dispute before progressing further into the divorce process. The judge will assist the parties in reaching a potential settlement.
If the divorce remains contested after this meeting, parties may wish explore resolution methods such as mediation, arbitration, or settlement conferences, although these steps are available to parties at any time, and you don’t have to wait until a Case Conference to engage them. These are critical steps where, with professional guidance, parties attempt to resolve their issues and reach an agreement, avoiding a potentially lengthy and costly trial.
Resolution Methods
When disputes arise during a divorce process, there are several avenues for resolution:
1. Mediation: A neutral third party (mediator) helps the parties to negotiate and reach a mutual agreement. Mediation can often be less adversarial and less expensive than court and can lead to a faster resolution.
2. Arbitration: A neutral third party (arbitrator) hears both sides and makes a binding decision. While it's often quicker and less expensive than the court process, it is usually more costly than mediation.
3. Case/Settlement Conferences: These court appearances aim to help parties resolve their issues. A judge provides advice but makes no binding substantive decisions except for potential procedural orders, such as ordering financial disclosure or scheduling the next step in the process.
If the parties fail to agree through these methods, the divorce may proceed to trial. Here, a judge makes the final decisions on the unresolved issues. This can be a lengthy and expensive process, hence the emphasis on settling disputes amicably and early in the process.
It's crucial to remember that the more issues you can agree upon during every stage of the divorce process, the quicker and less costly trial will likely be. As such, even in contested divorces, resolving as many issues as possible through negotiation or mediation is typically beneficial, reducing the issues that need to be decided by the court.
Final Thoughts
Navigating a divorce involves managing emotional transition alongside legal complexities. Understanding the process, from filling out the correct forms to negotiating a settlement, can help make this challenging journey more manageable. To effectively understand and protect your rights, seeking advice from a lawyer is highly recommended.
DISCLAIMER: The blog sets out a variety of materials relating to the law to be used for educational and non-commercial purposes only; the author(s) of the blog do not intend the blog to be a source of legal advice. Please retain and seek the advice of a lawyer before choosing to act on any information included in the blog.