How To Get a Divorce Order or resolve a breakdown in a common-law relationship in Canada
It is not uncommon for married spouses, soon after making the decision to separate and get a divorce, to realize that they do not know the specific steps required to get one. There are many approaches to finding a resolution between former spouses. This article explains the different approaches to getting a divorce order for married spouses or resolving all issues arising from a relationship breakdown between common-law spouses, and in which situations these approaches are appropriate.
Uncontested divorces can occur when married spouses separate and can reach an agreement on all outstanding issues that arise from a marriage breakdown as they apply to a specific situation: issues regarding the child(ren), division of properties and debts, and spousal support. The agreement on these issues is written into a separation agreement and signed by the spouses. Common-law spouses can also choose to resolve their outstanding relationship issues through a separation agreement.
Once all outstanding issues are resolved between the spouses they can apply in court for an uncontested divorce. The spouses can agree to get divorced but they require a court order to actually be divorced entitling them to re-marry. The Supreme Court of BC will approve an uncontested divorce application once it is satisfied that the spouses have resolved all issues arising from the marital breakdown, as they apply to the specific marital relationship.
In family mediation, married and common-law spouses can resolve outstanding issues from their relationship breakdown with the help of a mediator, typically with their lawyers present. The mediator, chosen by the spouses, uses persuasive skills to encourage the spouses to resolve most or all of the outstanding issues without having decision-making authority. There are private mediators, engaged and paid by the spouses, and publicly-funded and therefore free mediators at the provincial court level, called family justice counsellors.
The non-adversarial nature of mediation allows the spouses to choose creative solutions and own the result of the successful mediation. It is still recommended to retain a lawyer so they can provide legal advice throughout the mediation process. Read our article on family mediation to learn more.
Collaborative divorces can be similar to uncontested divorces and family mediation. Collaborative divorces require both spouses to hire their own lawyers who are trained in collaborative divorce. The parties agree not to go to court, and if they do not reach agreement, the collaborative lawyers cannot continue to act.
The benefit of this approach is that both parties agree to arrive at an agreement that is fair, healthy, and respectful for everyone involved. The court process can be stressful and is adversarial. The collaborative divorce approach is a non-adversarial process.
All negotiation is done in the same room with both lawyers present. Costly and adversarial letters are avoided in favor of healthy negotiation which does not look backward. Jointly hired experts and specialists assist in the collaborative divorce process.
At CBE LLP., our Partner, Garth Edwards, is a member of the BC Collaborative Roster Society, International Academy of Collaborative Professionals (IACP), and Collaborative Divorce Vancouver. If you are interested in the collaborative divorce process, reach out to us and we will be happy to help.
When former spouses cannot resolve one, some, or all of the outstanding issues from their marital breakdown, and they want to avoid the cost, delay, publicity, and uncertainty of the court process, they can decide to resolve their issues through arbitration and hire an arbitrator.
In arbitration, both sides present their position and arguments before the arbitrator. The arbitrator listens to both spouses and makes a decision on the disputed issues. Typically, an arbitrator is an experienced family lawyer or retired family judge.
Most people hire a lawyer to represent them in arbitration. With binding arbitration, both parties sign a contract to accept whatever the arbitrator decides with their case. Binding arbitration operates much like a trial in court, with less cost and formality because the arbitrator acting as a decision-maker like a judge is privately hired by the spouses.
Litigation – going to court
When both parties cannot agree on certain issues relating to outstanding issues from their relationship breakdown, they can have the court try their case through a judge in a process called litigation. When one, some, or all issues remain outstanding and there is a claim for a divorce order, the situation can be described as a “contested divorce”.
Most family cases that start with litigation do not end up in trial. Instead, the separated spouses settle the outstanding issues through negotiated settlement agreements, or they resort to mediation, arbitration, or to collaborative divorce, when they agree to fully abandon the litigation process.
In contested family litigation, each lawyer advocates for their client’s best outcome. This creates a confrontational and adversarial environment, affects the separated spouses negatively, and encourages reliance on the court and the judge for a neutral decision-maker. Because of the uncertainty of the court’s decision and the availability of a judge to hear and try the case, litigation is almost always the most expensive option to resolve a relationship breakdown.
Getting a divorce for married spouses or resolving all outstanding issues arising from a relationship breakdown between common-law souses is a stressful time in the spouses’ lives. Deciding which approach makes sense depends on the specific circumstances of each case. By speaking with a family lawyer, individuals receive thoughtful and tailored legal advice on how to best resolve their issues in a marital or relationship breakdown.