Paths to Resolution

Uncontested Desk Divorce

Desk Divorce is an uncontested divorce without an oral hearing. An uncontested divorce may proceed when the parties do not dispute the grounds for divorce, if they are able to reach an agreement regarding child support and spousal support. It is having the divorce heard without having to actually appear in Court – it proceeds by way of Affidavit evidence as set out in the Affidavit of Applicant. The Affidavit of Applicant is one of the documents in the divorce package. You are named the Plaintiff if you are starting the action. The partner responding to the action is named the Defendant.

Divorce proceedings may proceed on one or more of the following grounds:

1. Spouses lived separate and apart for at least one year;
2. The Defendant committed adultery;
3. The Defendant treated the Plaintiff with physical or mental cruelty.

A Divorce proceeding is commenced by filing a Statement of Claim for Divorce or a Statement of Claim for Divorce and Division of Family Property.

Once the Statement of Claim has been filed, it must be served personally on the Defendant. This can be done by a process server or anyone that is not a party to the action. If there are children, you must take the Parenting After Separation Course.

The Defendant’s options to respond are:

1. Opposes the Action – Statement of Defence
2. Wishes to receive notice – Demand of Notice
3. Wishes to receive notice and then seeks other relief – Demand of Notice can be co-joined with a Counterclaim (not common)
4. Opposes the Action and seeks other relief – Statement of Defence and Counterclaim

If the Defendant does not file a response within the time limit, the Plaintiff may file a Noting in Default, and apply for the Divorce Judgment.

Desk Divorce documentation sent to Courthouse for filing:

• A Request for Divorce;
• Affidavit of Applicant;
• Five copies of the Divorce Judgment;
• Self-addressed stamped envelope for self-rep Defendant;
• Affidavit of Service; and
• Note in Default, if applicable.

There is an appeal period of 30 days after the granting of a Divorce Judgment. After this time, a Request for Certificate of Divorce is filed. The Clerk then issues the Certificate of Divorce which will be needed if you wish to remarry.

Litigation

The term “litigation” refers to the legal process to resolve a dispute between two parties. Litigation can deal with any family law dispute including divorce, child and spousal support, parenting, and property. Parties in litigation may engage a lawyer right from the start. In many cases, the parties will be able to reach a resolution by settling out of court. However, when this is not possible, the decision is put to a judge or justice.

Litigation is a lengthy process which can take months – or even years – to complete. The process begins with one party filing and serving the other party with a document in the proper form outlining the relief they are seeking. This document is usually a Statement of Claim, a Claim, or an Application. The other party then must file a responding document in order to participate in the litigation within a certain period of time. Litigation does not require mutual consent. The courts can grant orders regardless of the responding party’s participation. Litigation is limited to strictly legal issues.

Once the litigation has begun, the parties typically engage in exchanging disclosure. A number of specified documents are exchanged and parties can demand documents as per their requirements, with both having to comply. Sometimes, the parties will engage in Questioning, which is the process by which parties are asked questions under oath about their case, position, and evidence. In this process, the party being questioned can be asked to produce additional information. This is known as an undertaking.

Litigation can involve making applications to the court to resolve interim or urgent issues. A final court order or judgment typically requires the parties to set a trial date. There are alternatives to scheduling a trial, including reaching an agreement outside of court, mediation, or setting the matters to an alternative dispute resolution process capable of ending in a binding result.

Evidence in litigation matters is sworn under oath and can be used throughout the proceedings. There are clear rules in litigation defining what can and cannot be considered evidence.

Litigation can be expensive, with both parties unable to predict or contain the total costs. Costs can be awarded throughout the litigation process against an unsuccessful party.

Litigation may not always be the best fit for your matter. However, there are times when litigation is appropriate or may be necessary. Litigation results in court orders, which are enforceable by the court. Litigation also provides an avenue for all types of matters to be dealt with thoroughly. The parties are always free to settle outside of the litigation process if they reach an agreement. Speaking to a lawyer can help you determine if your matter is appropriate for litigation.

Alternative Dispute Resolution

Alternative dispute resolution (“ADR”) refers to a process that is not based in litigation and is meant to help the parties come to a resolution by consent.

Some examples of ADR are:

1. Judicial Dispute Resolution (JDR)

This is a meeting between the parties to a court action that is mediated by a Judge. Nothing said in this meeting can be used for litigation purposes.

2. Mediation

This refers to a meeting between the parties which is facilitated by a Mediator whose job it is to help the parties identify the issues and work through them. The end goal is a partial or total settlement.

3. 4-Way Meetings

This is a meeting between the parties and their counsel. The lawyers assist the parties in identifying the issue or issues to be discussed and attempt to work out a solution with the parties.

4. Arbitration

In Arbitration, the parties agree upon the issues, establish a process for presenting them to the Arbitrator and then either come to an agreement, or the Arbitrator will decide the issue. The parties are typically contractually obligated to follow that decision.