Commencing a Divorce Case

• Author: Tina Kamakaris/Jane Kamakaris/Louis Kamakaris
• Pages: 365-408

365

Chapter 22 Commencing a Divorce Case

CHAPTER 22

is chapter covers the steps in starting a divorce case. e following is a summary of the

usual steps in which family law cases, including divorce, proceed to trial.

Figure 22.1 Family Law Cases (Including Divorce)

• Application (served immediately by special service only)

• Financial Statement, if any

• Adavit Form 35.1, if any

• Answer

• Financial Statement, if any

• Adavit Form 35.1, if any

• 30 days after service of application; 60 days if outside Canada or United States

• Reply, if any - (10 days after service of Answer)

MOTIONS, A or R; at any time, but motion may not be heard before a case conference is held, unless urgent.

• Notice of Motion and supporting Adavit, served 6 days before motion date, led 4 days before motion date.

• Conrmation, A and R; served and led by 2 p.m. 3 days before motion date.

CASE CONFERENCE, A or R; at any time; exploring chances of settling; setting date for next step in case.

• Case Conference Notice, party who scheduled case conference.

• Case Conference Brief, A and R; served and led 6 days before conference date by A; 4 days before by R.

• Conrmation, A and R; served and led by 2 p.m. 3 days before conference date.

SETTLEMENT CONFERENCE, court schedules it at any time; if no settlement, court schedules case for trial.

• Settlement Conference Brief, A and R; served and led 6 days before conference date by A; 4 days before by R.

• Conrmation, A and R; served and led by 2 p.m. 3 days before conference date.

TRIAL MANAGEMENT CONFERENCE, A or R; deciding how trial will proceed.

• Trial Management Brief, A and R; served and led 6 days before conference date by A; 4 days before by R.

• Conrmation, A and R; served and led by 2 p.m. 3 days before conference date.

Trial Record, A, served and led 20 days before trial

TRIAL - conducted as in civil actions

A=Applicant R=Respondent

COMMENCING A

DIVORCE CASE

A

R

A

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366 Legal Office Procedures

COURTS HEARING DIVORCE AND OTHER FAMILY ISSUES

e following courts have jurisdiction to hear divorce cases: the Family Court where it exists

and the Superior Court of Justice where a Family Court does not exist. e Ontario Court

of Justice has no jurisdiction to hear divorce cases, mainly because divorce is under federal

jurisdiction (under the Divorce Act of Canada), and the judges in the Ontario Court of Justice

are provincially, as opposed to federally, appointed and have only provincial jurisdiction.

DIVORCE

It is obvious but sometimes overlooked that only married spouses may be divorced.

Divorce is a legal termination of a marriage. Upon obtaining a certicate of divorce, the

former spouses are free to remarry each other or others if they wish. e provision for

divorce is under federal jurisdiction and is provided for under the Divorce Act of Canada,

whereas the procedural steps for obtaining a divorce are under provincial jurisdiction and

are prescribed by the Ontario Family Law Rules. e procedure for obtaining a divorce is,

therefore, the same throughout the province of Ontario.

GROUNDS FOR DIVORCE

e Divorce Act (Canada) permits divorce on the following grounds: (1) separation of one

year, (2) adultery, or (3) physical or mental cruelty.

Separation of one year Generally, separation means living in separate places. Regard-

less of which spouse separated from the other, either spouse may claim separation of one year

as a ground for divorce. Either spouse may le for divorce before a full year of separation has

occurred, but the divorce cannot be granted until a separation of one year has elapsed. To

encourage the spouses to reconcile or to try to make the marriage work again, the spouses

may, at any time during their separation, resume living together for 90 days or less. If the

reconciliation does not work out, the spouses can continue to count the one-year period

starting from the date of the original separation. If, however, the spouses stay together for

more than the 90 days, they have to start counting the one year again.

Adultery Adultery happens when the husband or the wife willingly has sexual

intercourse with someone else — even if this happens after the husband and wife have

separated. Adultery must be proved. Typically, it may be proved by having the spouse

who committed it admit that fact, usually by way of an adavit. If the adulterous spouse

will not admit to the adultery, then the spouse claiming adultery as the ground must

prove it some other way, e.g by having witnesses testify that they actually know the

adultery happened. Only the spouse who did not commit adultery may claim adultery as

a ground for divorce. us, the adulterous spouse cannot benet from his or her own act

of adultery. If the ground for divorce is adultery, the applicant may, usually for purposes

of exposure, name the person with whom adultery is alleged to have been committed. In

that case, the applicant must serve the named person with the application, usually without

the nancial statement, if any. at person then has all of the rights of a respondent in

the case. ere is no waiting period where the ground for divorce is adultery, except for

the time it takes to process the case.

Physical or mental cruelty Only the spouse who has suered physical or mental

cruelty may use it as a ground for divorce. is, too, is intended not to benet the spouse

Legal TIP

If the relationship has

ended but both spouses

are still living under the

same roof, they may

still be considered to be

living separate and apart

if they are no longer

behaving as though they

were married.

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367

Chapter 22 Commencing a Divorce Case

who has inicted cruelty. Physical or mental cruelty must be proved; mental cruelty is more

dicult to prove than physical cruelty. e spouse claiming physical or mental cruelty must

prove that the behaviour of the oending spouse made it unbearable or intolerable for the

non-oending spouse to go on living together. ere is no waiting period where the ground

for divorce is physical or mental cruelty, except for the time it takes to process the case.

No collusion, connivance, or condonation It is important to note that the Divorce

Act requires that there be no collusion, connivance, or condonation involved between

the spouses when seeking divorce. Generally, collusion means the spouses have made an

arrangement or agreement to fabricate a ground for divorce, e.g. adultery that never happened,

to speed up the divorce (instead of having to wait until a year of separation has passed).

Connivance, albeit rare, is when one spouse encourages the other one to commit a marital

oence, e.g. adultery or cruelty, for the purpose of obtaining a divorce. Condonation is when,

for example, a husband learns his wife has committed adultery but decides to forgive it and

continues to have sexual relations with her. In eect, this means that he may have forgiven her

in a legal sense and be unable to get a divorce based on that adultery.

CLAIMS UNDER DIFFERENT STATUTES

In the interest of resolving all family-related issues in a single case, the applicant may

combine the claims provided under the Divorce Act (Canada) as well as those provided

under provincial laws, namely, the Ontario Family Law Act (FLA) and the Ontario

Children’s Law Reform Act (CLRA).

Claims under Divorce Act (Canada) e Divorce Act (Canada), which is a federal

act, provides for the following claims: divorce, support, decision-making responsibility,

parenting time, and contact with respect to a child. e applicant may make a claim

for all of the claims under the Divorce Act or only for divorce, provided nancial support

arrangements have been put in place for the children.

Claims under provincial acts e FLA provides for such money-related claims

as spousal and child support and for division of family property which is why there is a

requirement for the serving and ling of nancial statements. e FLA does not provide for

decision-making responsibility, parenting time, or contact with respect to a child. e CLRA

provides for decision-making responsibility, parenting time, and contact with respect to a

child, which are people-related claims special to children. e applicant may make claims

under any one or both of these acts, or under all three acts, to cover rights under both federal

as well as provincial jurisdictions.

Overlapping claims While claims for support, decision-making responsibility,

parenting time, and contact with respect to a child between federal and provincial statutes

overlap, it is important to note that the basic claims which are provided under the Divorce

Act (Canada), i.e. divorce, decision-making responsibility, parenting time, contact, child

support, and spousal support, aim to be uniformly available to spouses and children

throughout Canada and that the powers granted under the Divorce Act supersede powers

granted under corresponding provincial statutes. e provincial statutes duplicate and

expand on these claims (minus divorce) mainly to ensure and protect the welfare of any

children involved and to ensure that spouses look to each other for spousal and child

support and not to the provincial government.

Legal TIP

The judge must be

satisfied that adequate

arrangements have

been made for the

financial support of the

children before granting

a divorce.

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