Divorce process in Canada – see http://statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm

If the divorcing couple agrees on all issues, the divorce will proceed through court as uncontested. Generally, the process involves filing the appropriate forms and documents with the court. In most provinces and territories, the parties to an uncontested divorce do not have to appear in court before a judge. Instead, a judge may grant a divorce judgment after reviewing the application and the documentation and evidence filed.

If the divorcing couple cannot agree on one or more issues related to the divorce, then the divorce will proceed as contested. The provincial or territorial court rules set out the steps needed to resolve the issues before the case goes to trial. Many of the steps provide an opportunity for the parties to come to an agreement and settle the issues before trial. For example, a pre-trial conference, such as a case conference or settlement conference, may be held. At any time during the divorce proceedings, parties can try to reach an agreement on their own or with the help of lawyers or through mediation.

To finalize the divorce, a judge reviews all of the information the parties have submitted, either on the application or in the trial, to ensure all the legal requirements for a divorce have been met. The judge grants the divorce and sets out in a divorce judgment the decision on any issues that need to be resolved. This judgment normally becomes final 31 days after the judge signs it.

Steps in uncontested divorce

  • File application in court, file appropriate provincial or territorial forms (court registers all new divorce applications with the federal Central Registry of Divorce Proceedings (CRDP) and the court must obtain a clearance certificate from the CRDP before reviewing the matter and granting the divorce)
  • Serve the application to your former spouse
  • Your former spouse has 30 days to file answer (if answer filed, divorce becomes contested)
  • If no answer filed by your former spouse, file second set of forms as required by province or territory (e.g., affidavit for divorce or divorce order forms)
  • Review by a judge
  • Judge grants divorce order if requirements for divorce are met
  • Divorce becomes final 31 days after judge signs divorce order (possibility of appeal during that period and move to appellate court)
  • Divorce certificate, proof of the divorce, can be obtained from the court

Steps in contested divorce

  • File application in court, file appropriate provincial or territorial forms, including a financial statement (court registers all new divorce applications with the federal Central Registry of Divorce Proceedings (CRDP) and the court must obtain a clearance certificate from the CRDP before hearing the matter and granting the divorce)
  • Serve the application and financial statement to respondent
  • Respondent serves and files an answer within 30 days
  • Applicant serves and files a reply within 10 days
  • Case conference may be held to try and resolve issues
  • Motions can be brought before a judge for an interim (temporary) order on issues that cannot wait or disputes over procedures or requested documents (issues include forcing the sale of the family home, interim spousal support, temporary custody arrangements, etc.)
  • Settlement conference before a judge may be held to try and resolve issues
  • Trial is held if parties do not resolve issues – lasts 3 days to 4 weeks and further hearings may be held if all issues are not resolved, can last for years
  • Review by a judge
  • Judge grants divorce order if meet requirements for divorce
  • Divorce becomes final 31 days after judge signs divorce order (possibility of appeal within that period and move to appellate court)
  • Divorce certificate, proof of the divorce, can be obtained from the court

What are the actual laws that govern divorce?

Divorce in Canada:

Source: http://statcan.gc.ca/pub/85-002-x/2012001/article/11634-eng.htm

My rant on divorce law

The law in my province of BC is profoundly misogynistic and ethically conflicted. It sets people up to cast themselves as a victim and rewards them for staying in that position for life. It greatly rewards women who engage in traditional marriages – they are entitled to generous spousal support (alimony) that is indefinite for a marriage of 8 years or more, their remarriage may not reduce this amount but child support ending increases it. However, a woman who works part-time and keeps her career going, while still carrying a big load at home and doing most or all of the child care, as is so often the case, is going to get very little spousal support because her earning capacity is high. Even then, if her spouse is a jerk, he will only pay her part of a settlement, because the remainder will be less than what it will cost her to go to court to retrieve it. This creates perverse incentives and reinforces a traditional, rather than fair, view of marriage.  Here is what I have learned of how we got to this state of affairs:

By my understanding, the legal rationale for the law being this way is based on compensating the person who stayed home for not having developed their career. This ignores the reality that most people who stay home do so because they either don’t have great career prospects and given the high cost of child care, it is the economically rational thing to do; or the other reason one spouse stays home may be because they really want to! It is far more gratifying for some to pour their energy into raising healthy children than sitting in a cubicle working for someone else all day. Plus it can end up being a fairly cushy deal once the kids are in school, if the cleaner comes in once a week and the family eats out a lot. This choice by a stay at home spouse can marginalize the high income spouse within the family so forcing them to pay dearly to compensate them for this experience is truly unfair, in my opinion. What would marriage look like if divorce laws were designed to create a situation where both spouses needed to pay attention to work-life balance?  My belief is that men would become more engaged in the home, workplaces would become more parent friendly and women would be empowered to engage and maintain their careers since the law would no longer penalize them for doing so (spouses with high earning capacity get much less support than those with low earning capacity under our current system).

A second legal argument is, I believe, derived from the Supreme Court of Canada decision (Moge v Moge) that “marriage is a socioeconomic contract” with the effect that the higher income spouse, rather than the government, becomes liable for the long term economic welfare of the lower income spouse. As a high income spouse, I find this to be ridiculous since I pay a lot in taxes to fund a social safety net. Essentially, this decision by unelected judges forces me to pay twice for a social safety net, once through taxes and the second through spousal support. I also find it patronizing to (mainly) women because it relieves the low income spouse of any personal responsibility for their financial well being. What would marriage look like if everyone knew divorce was a clean cut with only limited obligations between spouses to allow for retraining? (Hint: Swedish divorce law respects women as equals and is very different, see point 2.6 here)

Several lawyers have told me that high income women are treated very differently in the Canadian courts than high income men are, further evidence of the gender bias in our judicial system. Therefore a third, more subtle argument, I believe, is the notion that men have been jerks for so long that the current system should be lopsided to ‘even things up’. This essentially boils down to an argument that ‘two wrongs make a right’. Instead, how about we create a system that is fair to everyone, doesn’t patronize women and emphasizes personal responsibility, agency and autonomy?

Ethical violations of divorce law as currently practiced are virtually guaranteed since lawyers have very limited oversight by their Law Society and the laws are written to dramatically favor fee extraction over useful service. Angry spouses collaborate with this process since impoverishing their ex’es is a great way to extract revenge. Only the most scrupulously ethical lawyers (yes, I’ve met some) avoid the trap of viewing and managing clients as a money tree.

What is the solution?  I do not favor tweaking the current terrible system, I believe we should overhaul it completely. First, money issues are best dealt with by accountants, not lawyers, so a subgroup of these need to be empowered to look at assets and decide who has what and what everything is worth. Second, divorce needs to be recognized as a massive mental health attack and the parties in divorce (a huge and growing population) should be treated with respect, care and support by the system.  Divorce must be removed from the court system to a more caring and person-centered body, preferably led by the psychology, ethics and counselling professions. The courts should only be involved with the most difficult cases (less than 2% in Sweden). Third, child custody needs to be 50:50 every time with variance allowed only for criminal activity, child abuse or neglect or mental health breakdown. Fourth, declaring pre-marital assets should be a prerequisite to get a marriage certificate so there is no fighting over who had what later.  Fifth, divorce needs to be structured so spousal support is of limited duration and amount so divorce stops being used as a retirement package.

 

I hope that in these pages I have painted a sufficiently ugly picture of how our current divorce system is set up. Many people who have been through it wouldn’t wish it on their worst enemy, it is that gross and disgusting an experience.  We the people have stood by and allowed this system to develop, primarily legislated by judge’s decisions in the surreal world they live in, and it is we who have the responsibility to change it to one that actually works for people.  Men deserve better, women deserve better and most of all, children deserve better.  Accept responsibility as a citizen for the trauma this system inflicts on people and on those who choose to stay in awful marital situations only because they are so scared of this system.

Have compassion for yourself and for all others going through this awful process.