Divorce Procedure

"What is a separation agreement?"
A separation agreement is a contract between two former spouses that sets out each party’s rights on issues such as custody of and access to the children, division of property, child support and spousal support. It has the force of a court order. A separation agreement is an important document and will affect you for years to come, so it is important that it be properly drafted by a good family lawyer.

"What is the typical process?"
Normally, your family lawyer will write to your spouse or your spouse’s lawyer, stating that you would like to negotiate an amicable separation agreement. Financial information would be exchanged between you and your spouse to ensure that each party is aware of the other’s finances. Then a separation agreement would be negotiated that is satisfactory to both parties.

"Do I have to go to court?"If you and your spouse are able to agree on a separation agreement, then there is no need to go to court. You only need to
go to court if there are issues that cannot be resolved any other way.

"How do I start court proceedings?"
You start a divorce by filing an "Application" with the court and then serving the Application on your spouse. The Application sets forth, in general terms, your position on issues such as child custody, access, child support and spousal support, and equalisation of assets.

As well, if financial issues are involved, you must also file and serve a Financial Statement on your spouse. The Financial Statement outlines your income and expenses, assets and liabilities.
Your family lawyer will gather from you the information necessary to include in these legal documents. He will prepare these documents for you and ensure that you make all the claims to which you are entitled. Your family lawyer will arrange to have the documents filed with the court and served on your spouse.

"I have been served with an Application. What do I do?"
You must act quickly! You have only 30 days in which to act. During this time, you must prepare an "Answer," serve the Answer on your spouse and file the Answer with the court. An Answer is a document responding to the claims in the Application, and making claims of your own. As well, if financial issues are involved in your case, you must also prepare, serve and file a Financial Statement.

The amount of information required in these legal documents can be time consuming to put together, so do not procrastinate. If you do not respond in time, a judgment may be entered against you. Once that has happened, you may find that you no longer can spend time with your children or that support payments are garnished from your pay cheque. Once this has happened, it will be very expensive and difficult to change the situation.

A family lawyer can prepare an appropriate response to make sure that your rights are protected.

"What happens after the Application and Answer have been served?"
If any new issues are raised in the Answer, the person who served the Application may respond to the new issues by serving and filing a "Reply." After that, you have several choices about how to proceed. You and your spouse may be able to agree on things yourselves, with the help of a mediator or through the negotiations
of your lawyers. Once an agreement is reached, your family lawyer will ensure that any agreement is legally binding by preparing a separation agreement. However, if you and your spouse are unable to work things out, you will have to proceed through the legal system.

"How does the legal system work?"
Unless there is an emergency, your first court appearance will be at a "case conference." Although held at court, and presided over by a judge, the case conference is not an adversarial proceeding. It is more like a judge-led mediation. The judge will not make an order unless both parties agree or unless the order is procedural. If the case conference does not settle matters, and there is a need for immediate relief, such as immediate child support, spousal support or a decision on who will remain in the matrimonial home, a "motion" will be scheduled. At the motion, a judge will decide the issue, based on your and your spouse’s "affidavits" and the arguments of your family lawyers.

"How important is a motion?"
Very! Technically, the judge’s decision at the motion is only good until trial. But it will be a year or so until your case goes to trial. And if your case goes to trial, the trial judge will hesitate to change what has been the status quo for a year if it appears to be working. Thus, if you lose a motion, you will face an uphill battle, so the motion must be approached seriously.
A good family lawyer can ensure that you present your best possible case at the motion.

"I need more information from my spouse. How do I get it?"
The law requires that your spouse provide you with a fairly broad range of documents. If your spouse refuses to provide these documents voluntarily, a family lawyer can make a motion to compel your spouse to produce the documents. Often, all the information you need will be found in documents. However, in some cases, you will need more information. This will be done through "questioning." This is where you are asked questions, under oath, by your spouse’s family lawyer. The answers are recorded by an official reporter. Your family lawyer also has the opportunity to ask your former spouse questions under oath.

"What’s next?"
If, after the case conference, motions and questioning, your case still has not settled, a "settlement conference" will be held. During the settlement conference a judge will review the case and give you and your spouse a frank opinion about how he or she would decide the case if it went to trial. The purpose is to attempt to reacha settlement without going to the time and expense of a trial. If your case does not settle at the settlement conference, eventually a trial will be scheduled. At trial, all the unsettled issues in your case will finally be decided by a judge.

"What if I believe that my spouse is hiding assets?"
This depends on how much time and money you are willing to spend on locating the assets. A family lawyer can cross-examine your spouse on his or her financial statement. You can
also hire a forensic accountant to examine financial records to try to find evidence of hidden assets. You can also hire a private investigator to try to locate these assets.


Complex Separation Agreement
Behrendt Law Chambers represented a client in negotiating a settlement agreement that involved the issues of child custody and access, child and spousal support, and the division of property.

Through aggressive settlement negotiations, we managed to ensure that our client obtained joint custody of his daughter, all of the access to her that he wanted, plus we minimised the support payments and equalization payment he had to make.

Successful Court Appearance
Although negotiation is normally preferable, it is not always possible. Behrendt Law Chambers is no stranger to the courtroom, having appeared at many motions, case conferences, settlement conferences, and trials.

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