Script 122 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer.
This script will be helpful if your spouse is about to begin divorce proceedings, or if you’ve already been served with divorce papers. In most cases, you’ll want to hire a lawyer to represent you, but this script should give you a general understanding of your situation. Note that you only have a limited time to respond to the divorce papers.
This script only applies to married spouses. Unmarried spouses do not need to get a divorce.
What are the court forms used to start a divorce court case?
The document you’ll receive (or have already received) is called a Notice of Family Claim. Your spouse, the person who started the court case, is called the claimant, and you are the respondent.
The claimant must arrange for personal service of the Notice of Family Claim. This means that the Notice of Family Claim must be delivered to you in person. If you’re not available to receive the papers or the claimant has difficulty personally serving you, he or she can ask the court to serve you “substitutionally” by, for example, leaving the papers at your last known address, with your close relatives, or in your mailbox. Make sure you read the Notice of Family Claim carefully.
Consider consulting a lawyer
Because the claims made in the Notice of Family Claim could significantly affect your rights, you should consider asking a lawyer to review them with you and to explain exactly what orders your spouse is asking the court to make. Many family law lawyers will explain these documents for little or no charge.
There are strict time limits to respond
You must respond to the Notice of Family Claim within 30 days of the date you were served by filing a Response to Family Claim in court and serving the filed Response to Family Claim on the claimant by ordinary service. It is very important that you do this if you object to any of the orders the claimant is asking for. If you don’t respond, the court can make orders without any further notice to you.
Ordinary service means mailing or faxing (or sometimes emailing) the document to the claimant’s Address for Service. The claimant’s Address for Service will be set out in his or her Notice of Family Claim.
What’s in the Notice of Family Claim?
The Notice of Family Claim gives the court basic information about you and your spouse, and the details of your marriage and separation. The schedules to the Notice of Family Claim describe the orders your spouse is asking the court to make. At a minimum, this will be an order for your divorce, but your spouse can also ask for orders about the care and control of the children, spousal support and child support, the division of assets and other subjects.
The reasons why your spouse is asking for a divorce will be given
For information on the legal grounds for divorce, refer to script 120 called “Requirements for Divorce and Annulment”. If you don’t dispute the basis upon which your spouse is applying for a divorce, such as a one-year separation, you might not object. On the other hand, if he or she is claiming adultery or cruelty and those claims aren’t true, you might want to contest the court case.
Consider carefully the claims made
The claimant’s claims are the orders your spouse wants the court to make. If your spouse is seeking sole custody of the kids under the Divorce Act, do you feel that joint custody or sole custody yourself is better? If property is to be divided, do you want half or more than half of the family property? Is there a reason to apply to share in your spouse’s excluded property? If you dispute any of the claimant’s claims, you must do so in a Response to Family Claim, explained a little later. If you wish to make claims of your own, you must do so in a Counterclaim, also explained later on in this script.
What if you don’t agree with what’s being asked for in the Notice of Family Claim?
You should file a Response to Family Claim, which tells the court what claims you agree with and which you oppose. Be aware, however, that filing a Response to Family Claim changes the proceeding from an “uncontested divorce” which doesn’t require an appearance before a judge to a “contested divorce” in which a trial may be necessary to resolve things if they can’t be settled beforehand.
What if you want to make your own claims?
If you have claims of your own that you want to make, for example about the care of children, child support, spousal support, the division of property or another order, you must file a document called a Counterclaim. The Counterclaim sets out the orders that you want the court to make.
What’s a “judicial case conference”?
You or the claimant can schedule a judicial case conference after you have filed a Response to Family Claim or Counterclaim. A JCC is an informal hearing before a judge or master to talk about the claims each of you have made, see what can be agreed to and talk about how the claims will be resolved. JCCs are conducted in private and on a “without prejudice” basis. Without prejudice means that each of you can make settlement proposals at the JCC without being held to your proposal later on.
The JCC is an excellent opportunity to tell the judge and the claimant what you really want
Everything you say at a JCC is confidential and cannot be repeated outside the hearing room or used later, so speak your mind and explain what orders you’re looking for and why. The judge won’t make any decisions, however, unless you and your spouse both agree.
When will the divorce be granted?
If the claim for divorce is based on separation, the divorce order can be made any time after the one year period is over. If the claim is based on cruelty or adultery, the order can be made at any time. (Remember that no matter why the divorce is claimed, the court must be satisfied that adequate arrangements have been made for the financial support of any children before it can make the divorce order.) Although the divorce order can be made before all of the issues are wrapped up, at a trial or by a settlement, the court will usually be reluctant to make a divorce order in advance without a very good reason for doing so.
What is an “interim application”?
It can take a year or more from the time the Notice of Family Claim is filed to have a trial if a court case can’t be settled. Before the trial, you or your spouse may need the court to make a temporary or “interim” order about an important issue, such as the payment of child support or spousal support, where the children will live, or who will live in the family home. Interim orders are made following a party’s application to the court, called an “interim application”.
Interim applications are made by filing a Notice of Application (a court form which explains the orders you want the court to make and sets the date for the hearing of the application) and a supporting affidavit (a sworn statement describing the background to the application), to which the other spouse will have the opportunity to reply. Typically, these pre-trial applications take anywhere from 15 minutes to three hours to complete, depending on the complexity of the issues.
Interim applications should be taken very seriously as interim orders are often influential in the final outcome of the case. For more information, see script 112 on “Applying for an Interim Order in a Family Law Case”.
Remember that each time you go to court, it will cost time and money
The more you can agree on things with your spouse, the easier it will be on each of you. Try to save interim applications for really important problems, and always (if you can) see whether you can reach an agreement before going to court. If you need help talking with your spouse, you can contact a mediator. For more information on mediation, refer to script 111 on “Mediation and Collaborative Settlement Processes.”
Can you object to a divorce?
You can object to a divorce, but you’re not likely to succeed. Most of the time, the judge will make a divorce order as long as the ground for the divorce is proven, whether you want the divorce or not. There are rare situations where a divorce might be refused, for example, if the divorce means the termination of pension benefits a spouse is receiving or if adequate arrangements have not been made for the support of any children.
When does the divorce order take effect?
Divorce orders take effect 31 days after the date the order is made, unless the judge making the divorce order directs that it take effect sooner. The reason for the delay is to allow one of the spouses to appeal the divorce. Such appeals are very rare.
What are your rights after the divorce order is made?
If your divorce order doesn’t make orders about the division of property and you didn’t claim a division of assets in your Notice of Family Claim or Counterclaim, you have two years after the date of your divorce to make the claim under the Family Law Act. After the two years, you will be out of time to make the claim.
Divorced spouses are always entitled to make a claim for spousal support under the Divorce Act, no matter how long they have been divorced. Divorced spouses are always entitled to make a claim about children, such as about custody or guardianship or child support, as long as the children qualify as “children of the marriage” under the Divorce Act or as “children” under the Family Law Act.
[updated March 2013]
© Copyright 1983-2013 The Canadian Bar Association