This memorandum is intended to answer the most frequent questions relating to simple divorce proceedings.
DO I NEED THE DIVORCE?
Most people do not realize that a divorce judgment initiates a 2-year limitation period for spousal property claims which may be needed where there is no separation agreement. Of course, without a divorce, your “ex-spouse” is still your “spouse” for estate purposes, and on an intestacy would inherit by law a preferred share of your estate. Just generally, it makes sense in many ways to clean up and simplify your affairs.
‘SIMPLE’ v. ‘UNCONTESTED’
We use the term “simple” divorce to refer to an uncontested divorce proceeding in which the only relief requested is a divorce judgment based on grounds of marital breakdown by reason of a separation for at least one year. An uncontested divorce that is based on other grounds such as adultery or cruelty, or in which there is other relief requested such as support or property division, involves slightly more time and
effort. For example, where there is any type of financial relief claimed, the divorce applicant must prepare and file a detailed financial statement even if there will be no opposition to such relief in a final divorce judgment.
GROUNDS FOR DIVORCE
Under Section 8 of the Divorce Act, a spouse can obtain a divorce from the other on grounds of marital breakdown which can be proven by showing that the spouses have lived separate and apart for at least one year before the judgment. (The Court application can in fact be commenced before the expiry of that one year term.) Adultery and cruelty are other evidence that supports marital breakdown, and permit a
divorce earlier than one year; but those grounds require somewhat inflammatory allegations. Most couples are prepared to wait the one year period to obtain a simple divorce.
COURT PROCEDURE
InCanadaa divorce can only be granted by a Court judgment. Judgment can be obtained in most circumstances without a court attendance, using written affidavit evidence.
WHAT DO WE NEED FROM YOU?
When you come to us for a simple divorce, please have the following information or documents:
1. The marriage certificate;
2. Information relating to each spouse and the marriage including the date and place of birth, and particulars of any prior marriage of either spouse, including the divorce decree or judgment:
3. Details of the other spouse’s address for service (if you do not know it, we need as much information as we can in order to initiate a search for the other spouse);
4. If you seek to include in the divorce judgment any financial matters such as support or property, then we need information about your income and assets to complete a financial statement.
LAWYER FEES
Our fees are based on time spent. In the usual simple divorce our fees do not exceed $400.00 plus H.S.T.
OTHER COSTS
The most common disbursements and other fees for a simple divorce are:
|
The most common disbursements and other fees for a simple divorce are: |
|
| Issue Application Court Fee | $157.00 |
| Search Registry Gov’t Fee | $10.00 |
| Service by Process Server (Est.) Fee (higher for multiple attempts, foreign spouse) |
$64.20 |
| Motion for JudgmentCourt Fee | $280.00 |
| Court clerk for Filing Attendances + GST (Est.)Fee | $53.50 |
| Certificate of Divorce Court Fee | $19.00 |
| TOTAL | $583.70 |
WHY USE A LAWYER?
There are stationer’s divorce kits available which detail the steps needed to obtain a simple divorce; however, the procedure can be rather confusing and time consuming. For example, be prepared
to wait for hours in line at the court offices to have your documentation processed. When you retain us to act on your behalf for these proceedings, you can in most cases expect to spend less than 1 hour of your own time on the matter and to have the proceedings completed in about four months.
