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Divorce & Family Law This forum is for discussing any of the legal issues involved in your divorce.

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Old 12-21-2006, 10:47 PM
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Default Confused - Need Help -30 Days Up

I served x on Nov. 29th and counting the days to default. What is the next step (assuming no answer is filed - at this stage it certainly looks like this will be the case).

My lawyer informs me that "default proceedings are expensive - we can bring a motion for a final judgment based on your position - i usually serve such motions even though party opposite has defaulted as the court almost always asks if we've notified them"

I'm confused as to what I do next - at this point I just want to get the divorce granted such that I can re-marry. (been separated for over 4 years)
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Old 12-22-2006, 09:04 AM
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TODivorce,

as you mentioned,

Quote:
My lawyer informs me that "default proceedings are expensive - we can bring a motion for a final judgment based on your position - i usually serve such motions even though party opposite has defaulted as the court almost always asks if we've notified them"
A summary judgment is NOT available for Divorce. See Rule 16 below. If a party refuses to participate in the divorce process by rejecting same, not much you can do other than follow the process and state in your affidavit the the party was served and the specifics of same. See Rule 36 of the divorce process below. I don't see how it could be more expensive as the process is the same regardless if a party participates or rejects the process. However, If a party does participate and contests the Divorce this could become more expensive!


see Rule 16 of the Courts of Justice Act

http://www.e-laws.gov.on.ca/DBLaws/A.../990114a_e.htm

and Family Law Rules

http://www.e-laws.gov.on.ca/DBLaws/R.../990114a_e.htm


WHEN AVAILABLE

16. (1) After the respondent has served an answer or after the time for serving an answer has expired, a party may make a motion for summary judgment for a final order without a trial on all or part of any claim made or any defence presented in the case. O. Reg. 114/99, r. 16 (1).

AVAILABLE IN ANY CASE EXCEPT DIVORCE

(2) A motion for summary judgment under subrule (1) may be made in any case (including a child protection case) that does not include a divorce claim. O. Reg. 114/99, r. 16 (2).

However,

DIVORCE CLAIM

(3) In a case that includes a divorce claim, the procedure provided in rule 36 (divorce) for an uncontested divorce may be used, or the divorce claim may be split from the rest of the case under subrule 12 (6). O. Reg. 114/99, r. 16 (3).

with that said see

RULE 36: DIVORCE

APPLICATION FOR DIVORCE

36. (1) Either spouse may start a divorce case by,

(a) filing an application naming the other spouse as a respondent; or
(b) filing a joint application with no respondent. O. Reg. 114/99, r. 36 (1).

JOINT APPLICATION

(2) In a joint application, the divorce and any other order sought shall be made only with the consent of both spouses. O. Reg. 114/99, r. 36 (2).

ALLEGATION OF ADULTERY

(3) In an application for divorce claiming that the other spouse committed adultery with another person, that person does not need to be named, but if named, shall be served with the application and has all the rights of a respondent in the case. O. Reg. 114/99, r. 36 (3).

MARRIAGE CERTIFICATE AND CENTRAL DIVORCE REGISTRY CERTIFICATE

(4) The court shall not grant a divorce until the following have been filed:

1. A marriage certificate or marriage registration certificate, unless the application states that it is impractical to obtain a certificate and explains why.

2. A report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations (Canada). O. Reg. 114/99, r. 36 (4).

DIVORCE BASED ON AFFIDAVIT EVIDENCE

(5) If the respondent files no answer, or files one and later withdraws it, the applicant shall file an affidavit (Form 36) that,
(a) confirms that all the information in the application is correct, except as stated in the affidavit;

(b) if no marriage certificate or marriage registration certificate has been filed, provides sufficient information to prove the marriage;

(c) contains proof of any previous divorce or the death of a party’s previous spouse, unless the marriage took place in Canada;

(d) contains the information about arrangements for support of any children of the marriage required by paragraph 11 (1) (b) of the Divorce Act (Canada), and attaches as exhibits the income and financial information required by section 21 of the child support guidelines; and

(e) contains any other information necessary for the court to grant the divorce. O. Reg. 114/99, r. 36 (5).

DRAFT DIVORCE ORDER

(6) The applicant shall file with the affidavit,

(a) three copies of a draft divorce order (Form 25A);

(b) a stamped envelope addressed to each party; and

(c) if the divorce order is to contain a support order,


(i) an extra copy of the draft divorce order for the clerk to file with the Director of the Family Responsibility Office, and

(ii) two copies of a draft support deduction order. O. Reg. 114/99, r. 36 (6).



CLERK TO PRESENT PAPERS TO JUDGE

(7) When the documents mentioned in subrules (4) to (6) have been filed, the clerk shall prepare a certificate (Form 36A) and present the documents to a judge, who may,

(a) grant the divorce as set out in the draft order;


(b) have the clerk return the documents to the applicant to make any needed corrections; or

(c) grant the divorce but make changes to the draft order, or refuse to grant the divorce, after giving the applicant a chance to file an additional affidavit or come to court to explain why the order should be made without change. O. Reg. 114/99, r. 36 (7).


DIVORCE CERTIFICATE

(8) When a divorce takes effect, the clerk shall, on either party’s request,

(a) check the continuing record to verify that,

(i) no appeal has been taken from the divorce order, or any appeal from it has been disposed of, and

(ii) no order has been made extending the time for an appeal, or any extended time has expired without an appeal; and


(b) if satisfied of those matters, issue a divorce certificate (Form 36B) and mail it to the parties, unless the court orders otherwise. O. Reg. 114/99, r. 36 (8).

(9) Revoked: O. Reg. 89/04, s. 12.

I am not clear why you lawyer would suggest a summary judgement is required when in fact it is not available for DIVORCE. (see Rule 16.) Rule 36 is the procedure to be used for DIVORCE. If a party rejects the process, Rule 36 also covers this scenario. If you are confident in the procedure you could also do much of this work yourself. The bulk of the required documents have already been completed.

You can find the Ontario Family Law Court Forms here.

http://www.ontariocourtforms.on.ca/e...mily/index.jsp


You can get a free office application (Open Office) to open and process word doc format here.

http://www.openoffice.org/


Additionally most Ontario Family Courts have an in house Family Law Information Clinic.


lv

Last edited by logicalvelocity; 12-22-2006 at 09:19 AM.
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