Uncontested and Contested

Uncontested Divorce

To be eligible for an uncontested divorce, both you and your spouse have to agree on the basic issues at play in a separation:

• You both want to divorce;
• You agree on a division of family property and debts;
• You agree on child and spousal support;
• You agree on parenting.

If you disagree about any or all of the above then you are heading for a contested divorce.

Step-by-Step Guides to obtain an Uncontested Divorce

Each province has comprehensive guides and resources on how to do your own uncontested divorce including links to court forms you’ll need and information about where to file or send documents to get a divorce.

See the following links to get started in your province:

• Alberta
• British Columbia
• Manitoba
• New Brunswick
• Newfoundland and Labrador
• Northwest Territories
• Nova Scotia
• Ontario
• Prince Edward Island
• Quebec
• Saskatchewan
• Yukon

Contested Divorce

If you and your spouse want to get divorced but can’t agree about parenting, support, and/or how to divide property and debt, you may have to apply for a contested divorce.

Ultimately, this means you are asking a judge to decide these family law issues at trial. In fact, most contested divorces are resolved when the divorcing couple reach agreement before the case ends up at trial.

While you don’t have to have a lawyer to get a contested divorce, I highly recommend you at least get legal advice. If you have children, substantial family assets or a complicated financial situation, you should really consider hiring a lawyer.

But don’t forget, for a contested divorce you still have options to litigation. See Mediation, Collaborative Law, and Arbitration.

The Contested Divorce Process

A contested divorce is complicated and can take many paths. The following gives a brief overview of a typical contested divorce in British Columbia that takes the litigation route.

FILING FOR DIVORCE

If you are starting the action for divorce, you must file a Notice of Family Claim (Form F3) with the Supreme Court.

COUNTERCLAIM

Once the Notice of Family Claim is issued by the court it becomes official, and a copy must be served on the opposing spouse, who is required to reply to the claim with a formal response called a Counterclaim (Form F5), which puts his or her side of the dispute.

HIRING A LAWYER

If you haven’t already hired a lawyer, you will need one now. See my guide to choosing the right lawyer for advice on what is perhaps the most important decision you will make in your divorce.

CASE CONFERENCE

A judicial case conference (JCC) is often the next step in the process. You, your spouse and your lawyers will meet informally with a Supreme Court judge to discuss your case. It’s an opportunity for you both to try and settle your issues with a judge’s help. If you can agree on interim support issues, these can be set at the JCC with consent orders.

INTERIM ORDERS

While you are waiting for trial, you may need to receive child or spousal support or make temporary arrangements for parenting before these matters are settled by the trial judge. If you and your spouse are unable to agree on these issues, you can ask the court to make interim orders. You can get interim orders about parenting and support in either Provincial Court or Supreme Court. You can get orders about property only in Supreme Court.

DISCOVERY

Discovery of Documents

Part of the process of going to trial is for each side to gather information from the other party. Called discovery, the process starts with the sharing of documents that are relevant to your divorce. These include any documents that may be used to prove or disprove a material fact by either party, and documents you might wish to refer to at trial. You are required to provide a List of Documents (Form F20) to your spouse within 35 days of when the response or counterclaim is filed, although lawyers often will agree to extend that deadline.

I cannot stress enough the importance of getting organized. Gather together all your records: tax returns (corporate and personal), business records, pay stubs, insurance documents, bank account statements, credit card and investment statements. You will probably need to supply copies of all of them as part of discovery.

Financial Statements (Form 8s)

If your case involves child or spousal support, both you and your spouse are required to exchange financial information, which must be filed with the court using Form 8. These statements amount to one of the most onerous and stressful tasks you have to tackle in a divorce. They must be a complete, meaningful, and up-to-date description and valuation of every asset, debt, and expense to your name. Honesty is essential. They are sworn affidavits, and you run the risk of losing credibility with the court if they are found to be inaccurate.

The purpose behind the statements is to save time and money by ensuring full financial disclosure. If your case drags on, you may well have to file an updated financial statement more than once, since your asset picture may have changed. By the time my case was over, I had been required to supply five Form 8s.

Examinations for Discovery

As part of the discovery process, you will have to submit to questioning by your spouse’s lawyer. Called examinations for discovery, the sessions are formal: you are under oath, both lawyers are present, a court reporter records the questions and answers, and the answers you give can be used in the forthcoming trial. Court rules permit a maximum of five hours of questioning, which can be spread over several examinations. Your spouse will also have to attend his or her own examinations for discovery, when your lawyer gets to ask the questions.

As I discuss in About your Examination for Discovery, be well-prepared, answer truthfully and succinctly, and remember the point of the questions is to help your spouse’s case, not yours.

SEEKING A SETTLEMENT

During the course of a litigated divorce, either or both sides may make attempts to find common ground and settle the issues in contention before resorting to a trial. You or your spouse may make an Offer to Settle, which if accepted, becomes legally binding.

An exchanges of letters between lawyers containing settlement discussions or a more formal offer to settle may lead to Minutes of Settlement, a document drafted by one of the lawyers that details what has been agreed to. Once signed by both parties it becomes legal and enforceable.

In some cases, the divorcing parties will ask a Supreme Court judge to preside over a Settlement Conference, a private meeting designed to encourage both sides to settle their differences.

The most common way for spouses to settle family law disputes is through a Separation Agreement. This sets out the terms of their settlement regarding parenting, division of family property and child and spousal support in a legally binding contract. While you or your spouse can write the agreement, I recommend you have a lawyer, a family justice counsellor or mediator draft it for you.

If you and your spouse can put aside your differences, a separation agreement is the best way to go. It puts into black and white those agreements and promises each spouse has made, it’s enforceable like any other contract, and having one can considerably speed up the process of finalizing your divorce. Also, the negotiations will not only resolve the main issues at stake, they will bring into focus many others you may not have thought of, such as estate questions should one of you die, or what will happen with the children if one of you wants to move to another province.

Finally, separation agreements have an added benefit by providing proof for Revenue Canada for those who must pay spousal support, which will allow them to deduct the amounts paid from income tax.

If you and your spouse wish to write your own separation agreement, there are several good guides available:

• Legal Aid BC Family Law is a good starter site including a resource for court forms;
• Free Separation Agreement on the LawDepot site;
• Self-Counsel Press has a kit called Separation Agreement, which you can download for a small fee or find in bookstores. It has examples of separation agreements and blank forms you can fill out on your computer.

If you do your own separation agreement, I strongly recommend that you have it reviewed by your lawyer to ensure your interests are protected.

TRIAL MANAGEMENT CONFERENCE

As part of the process of going to trial, it is usual to convene a trial management conference where the lawyers and clients meet with a judge of the court to discuss how the trial will proceed. Details covered typically include the trial length, the witnesses to be called, what evidence the witnesses will give and the time needed to examine or cross-examine them, expert reports that will be presented and so on. The lawyers usually compile trial briefs that include much of this information together with a short précis of the issues in dispute and their side’s position regarding them.

TRIAL

It can take a long time to have a trial scheduled and the whole process is time-consuming, expensive, and stressful. It’s also very hard on any children involved. So before you go down that path, consider all the options for settling your differences.

Testifying in Court

Normally in a family law case such as divorce you will be required to testify in court. Here are some valuable techniques that you can use:

• First and foremost, be prepared, because if you are prepared, you will feel more relaxed and able to cope with what is a stressful experience.
• Reread your Examination for Discoveries several times before taking the stand, so you know exactly what you said. It is important you don’t contradict your own prior testimony.
• When you are sworn in, establish eye contact with the judge and say in a loud, clear voice, “I do.”
• Sit up straight, don’t fidget, hold your hands together on your lap if you have to.
• When the opposing counsel asks you a question, look him or her directly in the eye.
• Just like in the Examination for Discovery, listen carefully to the question. Make sure you understand it before you answer.
• Turn towards the judge, look him or her in the eye, and answer with confidence. This helps establish credibility. Keep your answers clear and concise.
• If either lawyer objects to a question, stop talking instantly. Take the direction from the judge.
• If you make a mistake, admit it. Whatever you do, don’t try to cover it up. Judges realize that mistakes are made. They will however, come down hard on you if you try to cover it up.
• Finally, which seems logical, tell the truth, the whole truth, and nothing but the truth. Don’t embellish, tell it like it is, and say it with conviction.

Being examined by your own counsel is obviously less stressful than cross-examination. Your own lawyer tends to ask you open-ended questions that allow you to tell your story, to present your side of the case. By contrast, the opposing lawyer will be pumping you for information useful for his side of the case, attempting to discredit your evidence, and laying traps for you to try to damage your credibility.

Adjournments

If you are going to trial, adjournments are a fact of life. You should not assume your trial will be done in one consecutive period, even if it is slated to last five days. There are numerous reasons why a trial may not go ahead as planned. If your trial is adjourned, it may be months before another court date can be found that suits the judge’s and the lawyers’ schedules. This can so disheartening and frustrating, but you will have to find the inner strength to deal with it.

In some cases where one spouse is uncooperative or overly combative, he or she may use their lawyer to disrupt or delay proceedings by requesting adjournments. This happened a number of times in my case. Think long and hard before contesting the adjournment. It may well anger you, but factor in the legal costs of fighting the application in court. When my wife fired her lawyer days before the trial and applied for an adjournment, I fought it. That cost me $25,000 – and she ended up getting her adjournment anyway.

THE JUDGEMENT

It may take several months after the end of the trial for the judge to deliver a verdict. In my case it was six months. The judge issues his or her Reasons for Judgment, either orally in a court session or written and delivered to the two parties.

FINAL ORDER

The lawyers on each side of the divorce review the Reasons for Judgment to see what the judge has actually decided, and one of them draws up a document that details the salient points into a judgment or final order. Both lawyers have to agree to this document. If they do not, they must request a hearing with the judge to settle the dispute. Only when both agree can the final order be filed with the courthouse and the judgment becomes effective. See this guide for tips on drafting orders for both the Provincial and Supreme Court.

COSTS

When matters are contested in court, the judge has the discretion to order the losing party to pay a portion of the successful party’s legal costs. You can apply for costs, but be aware that the costs awarded if you win will never match the total legal bills involved in bringing the case to court. A bill of costs is compiled according to Supreme Court Rules that specify certain unit costs for legal work done. Typically, the resultant costs you might win would amount to a small percentage of your legal fees. It’s a good idea to obtain a clear understanding of what the figure might be before you go ahead and apply for costs. Weigh it against the fees you will pay your lawyer to fight for costs in court.

If you are awarded costs and the judge does not order it “forthwith,” it may take you a very long time to receive the funds. In one of my costs orders, I waited over three years to collect the money. Forthwith, in a legal context means immediately, promptly, without delay, within a reasonable time under the circumstances of the case.

Measuring Success for Costs

In Canadian family law, Supreme Court Family Rules hold that costs shall be awarded to the successful party, unless the court orders otherwise. Success in a hearing on costs is frequently based on case law from Fotheringham v. Fotheringham (2001), in which a four-part test was applied:

First, by focusing on the “matters in dispute” at the trial. These may or may not include “issues” explicitly mentioned in the pleadings.

Second, by assessing the weight or importance of those “matters” to the parties.

Third, by doing a global determination with respect to all the matters in dispute and determining which party “substantially succeeded,” overall and therefore won the event.

Fourth, where one party “substantially succeeded,” a consideration of whether there are reasons to “otherwise order” that the winning party be deprived of his or her costs and each side then bear their own costs.

Among the reasons frequently cited under part four include the conduct of the party during the case, especially where it can be argued that they exhibited poor behaviour.

The High Cost of Divorce

Similar to building a new home or renovating, divorce usually costs more than you think or more than you budgeted for.

The cost of an uncontested divorce is substantially cheaper than a contested divorce. A contested divorce can be pricey, and the more acrimonious the split, the bigger the price tag.

As of the summer of 2022, a seasoned divorce lawyer can cost upwards of $650/hour. A divorce lawyer with 10+ years of experience can cost you approximately $425/hour and a junior lawyer $300/hour.

Unfortunately, my divorce became drawn out and nasty. After five years of appearing in front of 10 different judges, 19 days in court spread out over eight months, and seven full days on the stand, my legal bills, not including her, were close to $700,000.

I firmly believe that family law is about making good people look bad, and criminal law is about making bad people look good. Once you are in the system, it is so hard to get out. No matter how hard I tried to get out of the system, the disastrous merry-go-round wouldn’t let me off. I was truly “lost in the system.”

Most divorces are not as long and drawn out as mine, and in fact, only 1 percent go to court. If I went through it all over again knowing what I know now, I could have saved years and hundreds of thousands of dollars off my divorce.

Your goal should be to get through the process as quickly as possible with the least amount of stress and anxiety. Your mental and physical health is paramount.

Whenever possible, my advice is to seek an alternative approach to a litigated divorce, such as collaborative law. That way, you both will be able to keep more of your wealth rather than giving it away to lawyers.

APPEAL

When the judgment comes down you may not like what the judge has decided, but that doesn’t mean you have good grounds to appeal. An appeal has to be on the basis of an error in law made by the judge. Perhaps he or she has used an incorrect principle in law or has misinterpreted a precedent set in another case. If your lawyer believes the judge made such an error in your case, then you can appeal to the Federal Court of Appeal.

Appeals can be very expensive and can take a long time. You should have a very good case and a good deal on the line to even consider an appeal. As with the original trial, if you lose you could also be stuck with paying the winner’s costs. Worse, if the judge feels your appeal is frivolous or that you should have accepted an offer to settle that should have been accepted, he or she can award double costs against you.

DIVORCE ORDER

You may be asking yourself, when do I actually get my divorce? In a contested divorce, a Supreme Court judge will consider granting a divorce order once he or she is satisfied that any custody issues have been resolved and that reasonable arrangements are in place for the support of any children of the marriage.

If you can reach a settlement before trial, then you can apply to the Supreme Court for a divorce order, assuming you have been separated for at least one year, or meet one of the two other grounds for divorce. If you go to trial, usually the judge will consider a divorce order at some point during the proceedings, if he or she is comfortable with arrangements for the children. Your divorce becomes legal 30 days after the divorce order is filed with the court.