What is Contested Divorce in Real Terms
Are you and your spouse unable to agree on issues related to your property, children or support entitlements in the midst of your divorce? Continue reading about contested divorces for more information!
When either one or both spouses want to apply for divorce in Canada, they make an application under section 8(1) of the Divorce Act. A divorce can only be granted by the court and the spouses must establish a breakdown of the marriage on one of the following grounds:
1. Living separate and apart for at least one year. This is the most common way spouses establish a divorce; or
2. One spouse brings a divorce proceeding against the other spouse, claiming that the spouse has:
a. Committed adultery; or
b. Treated the other spouse with physical or mental cruelty that makes cohabitating together as spouses intolerable.
If the grounds for divorce are the one-year living separate and apart and the spouses have waited the one-year period, the divorce will be granted and take effect 31 days later.
Although spouses can sometimes agree on all of the issues that have a straight forward and fast divorce process, many spouses disagree on one or all of the issues raised in a divorce, which is known as a contested divorce. These issues can include but are not limited to child custody, division of assets and child and spousal support. A contested divorce can also occur where one spouse denies that the couple is eligible for a divorce.
If a divorce is contested, the legal proceedings typically take a lot longer to complete but do not always require a trial to be resolved. The divorcing spouses have various options to settle their disputed issues outside of court through processes such as mediation and arbitration. However, if divorcing spouses cannot resolve their issues through mediation or arbitration or do not wish to try using an alternative dispute resolution process, they will need to go to court and have a trial to resolve their issues.
Once the contested divorce proceeds to court, the following steps take place:
1. One of the spouses will have to fill out an application which states what exactly they are seeking from the divorce and will include issues such as child custody, spousal support, etc.;
2. The application must then be filed with the court and served to the other party;
3. The spouse who receives the application has 30 days to respond to the application;
4. The parties disclose financial statements;
5. Where cases are held in the Ontario Court of Justice, a first court date is set;
6. A minimum of one case conference is held where the parties attempt to settle their issues, which is required in all contested family law cases;
7. Parties bring forward any motions, which are used to make temporary orders while the matters are heard in court. For example, one spouse may request the court to make a temporary order regarding the custody of a child.
8. If the divorcing spouses cannot resolve their issues, the final step is going to trial. Parties are encouraged to retain a family lawyer to represent them during the trial.
We understand that going through a divorce can be a challenging time, especially when the divorce is contested. If you are looking for more information about how to navigate a contested divorce, do not hesitate to contact us and one of our experienced Family Lawyers can discuss your matter in more detail over a free consultation. You can reach our office at 905-366-0202 or contact us through our website here.