Contested divorce in Canada is governed by the Federal Divorce Act, though there will be some differences in the procedures and documents involved according to each province. While divorce is not viewed in the same light as it was in the past, it is still quite often a very emotionally taxing, stressful experience. To reach the best possible outcome in a divorce, it is important to understand the process and the options available.
The two main types of divorce available in Canada are contested and uncontested.
Contested and Uncontested Divorce – What’s The Difference?
In Canada, either spouse can initiate divorce proceedings. An uncontested divorce takes place when one spouse files the application for divorce and the other spouse does not file a response. When no response is made to the application, the courts presume that both spouses have agreed to end their marriage.
In an uncontested divorce, both spouses have not only agreed that the marriage has come to an end, but they also agree on the terms of their separation. The terms of the divorce papers are deemed agreeable to both parties, and as a result, they do not need to go to court. Both parties must have resolved any potential issues such as the custody of children and visitation rights, as well as spousal and child support, detailed in a separation agreement.
The application for divorce can be submitted to the court one year following the date of separation. It can, however, be submitted sooner in certain circumstances, such as when there are grounds for physical or mental cruelty or the admission of adultery in a signed affidavit.
Uncontested divorces typically proceed faster than contested ones, as both parties have already come to an agreement. Because of this, they tend to be less costly and less stressful for all involved.
A contested divorce, on the other hand, may take longer to process because the spouses are not in agreement on one or more issues. Typically, the disagreements are related to the custody of children or the conditions of spousal and child support. Other common issues include parenting schedules or the division of assets or debts gained during the marriage.
When this occurs, both parties must outline their position on the various points in dispute. A court will determine how each issue is to be resolved, though there are other methods to settle a contested divorce, including mediation, arbitration, or formal divorce procedures.
Because of the nature of a contested divorce, it may require considerably more time than one which is uncontested. They can become rather costly and may result in years of fighting before a resolution is found.
Contested Divorce in Canada: Pros and Cons
On the surface, it seems likely that an uncontested divorce would be preferable. After all, a contested divorce could be time-consuming, emotionally and financially draining, and in the end, it is the court that will make decisions based on the information that is provided to them.
Despite the drawbacks, however, there are certain advantages to a contested divorce, such as the ability to more thoroughly evaluate important details rather than simply agreeing to them, sometimes without even fully understanding the outcome.
Some possible reasons for a contested divorce include:
Most marriages start with high hopes and a desire for equal partnership, but sometimes one spouse will begin to hide things from the other, including those that are financial in nature. If one spouse manages to conceal assets from the court, they will not be factored into the division of property. This can impact other aspects of the divorce such as child support. A contested divorce can put both parties on a level playing field by helping to reveal all pertinent assets.
Abuse in the Marriage
It is a sad reality that marriages sometimes involve physical, emotional, or other types of abuse from one spouse to the other. Divorce can help the abused spouse regain their freedom and happiness, but the abuser may also try to interfere with the divorce process. In such cases, a contested divorce that involves the aid of an experienced divorce lawyer can help ensure a safe and fair resolution.
Caring For Children
A contested divorce is required when parents cannot come to an agreement regarding custody and visitation rights. The courts will act in the best interest of the children, weighing factors such as emotional needs and the ability to provide for their physical needs, as well as any past incidents that might indicate problems in the parent-child relationships.
Both contested and uncontested divorces can be difficult. But knowing the options available can help make the process go more smoothly, bringing a peaceful resolution that allows both parties to go on with their lives.
Feel free to contact our office at Hillside Law if you need divorce services in Penticton.