Applying for a Contested Divorce
A divorce may be either contested or uncontested. If a divorce is contested, that means the two parties cannot agree on the issues surrounding the divorce. These issues may include custody and access, child and/or spousal support, and division of property.
A contested divorce is begun by one spouse (the “Applicant”) filling out a Form 8 Application naming the other spouse as the “Respondent”. The Applicant will issue the Application by bringing three copies to the Court, which will give them a court file number. They will then serve their spouse with this Application and file it with the Court. This form will notify the other spouse that a divorce is being sought, and also let them know what issues are in dispute.
The first section of the Application is the “Family History” section, where information about the parties and their relationship is set out. The Relationship Dates section sets out when the parties started living together, when they were married, and when they separated. This is a very important section for issues relating to property and spousal support.
The next section, “Previous Cases or Agreements” sets out any previous court appearances, separation agreements, or mediation/arbitration proceedings the parties have engaged in or entered into.
The next section, “Claim by Applicant”, sets out what relief the Applicant is seeking. This is where claims for custody and access, child and spousal support, equalization of net family property, and other, less usual remedies (such as a restraining order and exclusive possession of the matrimonial home) are set out.
The “Important Facts Supporting the Claim for Divorce” section informs the Court on what grounds the party is seeking a divorce. The grounds are separation, adultery, or cruelty.
Nearly all divorces in the modern day are sought on the ground of separation, meaning that the spouses have lived separate apart for at least one year. Adultery and cruelty are still grounds for divorce, but the difficulty and expense of proving these claims as opposed to simply waiting out the separation period means that they are very seldom claimed. It is important to note that neither adultery nor cruelty affect a party’s entitlement to support, property division, or custody and access.
Finally, the “Important Facts Supporting my Other Claims” section is where the factual and legal basis for the claims you are making will be set out. For example, if you are seeking spousal support you would write down the facts showing your entitlement, and also refer to the sections of the Divorce Act and Family Law Act that enable you to claim spousal support.
The claims that are made in the Application will determine what other forms must be served and filed along with the Application itself.
- If property claims are made, then a Form 13.1 Financial Statement must be served and filed.
- If support claims, but not property claims, are made, then a Form 13 Financial Statement must be served and filed.
- If claims for child custody and access are made, a Form 35.1 Parenting Affidavit must be filed.
In addition to the above forms, the courts will require the party to file:
- The original marriage certificate
- This is to prove the parties are legally married
- Registration of Divorce Proceedings
- This enables the Court to ensure that the parties have not filed for divorce in any other Canadian jurisdictions
- Form 6B: Affidavit of Service
- This will be filled out by whoever serves the Respondent spouse with the Application and other documents to let the court know they have been properly served
- Continuing Record cover
- The Court will create a “Continuing Record” where all official documents relating to the court proceeding will be filed. The cover will include the names of the parties (and their lawyers if they have them), as well as which court they are in.