THE SURVEY OF CHILD SUPPORT AWARDS: INTERIM ANALYSIS OF PHASE 2 DATA
(October 1998 to March 2000)
PART 1: DIVORCE AND THE PROCESSING OF CHILD SUPPORT ORDERS (continued)
The process of divorce can be divided into three general stages:
- marriage breakdown;
- a pre-petition stage; and
- the divorce proceeding.
Each of these stages involves a series of decisions on the part of one or both spouses. The divorce can be completed rapidly or can take years if the parties separate and take no further action until one party wants to remarry.
Figure 4.1 provides a model of the divorce process. This model is general enough to accommodate most variations in how divorce cases are handled across Canada. In section 5.0 we will see how various factors, which differ in the jurisdictions involved in this study, affect the general process.
The Divorce Act, which governs the process of divorce in Canada, provides that the basis for divorce is a
"breakdown of the marriage." Breakdown is established when one or more of the following occurs:
- the spouses have separated and lived apart for at least one year;
- the respondent spouse committed adultery; or
- the respondent spouse has inflicted physical or mental cruelty on the other spouse.
As Figure 4.1 indicates, the divorce process begins with marriage breakdown occurring for any number of reasons. However, at the petition stage, one of the three indications of breakdown of marriage must be used as the grounds for divorce.
The pre-petition process may involve several stages and decisions. Actions taken at this early stage set the framework for subsequent decisions. During the separation, couples often resolve many of the legal issues related to their marriage breakdown by separation agreements or interim court orders that are later incorporated into the final divorce order.
When marital problems arise, the couple may try some form of marriage counselling to resolve their problems, or may work on their problems on their own. If either approach is successful, the marriage may continue. Alternatively, the couple may find that the issues cannot be resolved, or that one or both no longer wish to try to resolve them. At this point, there is likely to be a physical separation.
Once a couple decides to separate, they must then decide whether to take further action.(2) If the couple is childless and has no significant property issues, the husband and wife may simply go their own ways. Often no formal action is taken unless a separated spouse wishes to remarry, which may occur years later.
Even when the separation is relatively amicable, the parties may wish to formalize the details of the separation. This is especially true when children, substantial assets or significant debts are involved, or when one spouse requires financial support from the other for him or herself or the children of the marriage. At this point, one or both may consult a lawyer. A family court counsellor, a court conciliator or a mediator may also be consulted. Occasionally, information or advice obtained at this stage results in an attempt at reconciliation. In fact, section 9 of the Divorce Act requires legal advisors to discuss the possibility of reconciliation with their clients and advise them about reconciliation support services.
If reconciliation is not possible but the couple can agree on the resolution of all issues, a separation agreement will usually be prepared. Each spouse is advised to obtain independent legal advice before signing such an agreement. Agreements are often negotiated between the two lawyers. If an agreement is not reached, the lawyers may refer the couple to a mediator who tries to assist the spouses in reaching an agreement regarding one or more issues. Sometimes mediation will deal with only one issue, such as access, while in other cases mediation may be "comprehensive" and deal with all the issues. Some separated spouses consult a mediator before seeing lawyers. If mediation results in an agreement, the parties should be referred to lawyers for independent legal advice before signing the agreement. If the agreement has been signed, the parties may begin divorce proceedings immediately or they may do nothing further until one or the other wishes to divorce to allow, for example, remarriage.
If the parties cannot agree, applications can be made to the court to resolve the various issues between them. Each province and territory has legislation permitting the courts to deal with issues of custody, child support, spousal support, possession of the matrimonial home and division of property. Sometimes a court order under provincial or territorial legislation resolves all the issues between the parties, and the terms of the order can be incorporated into a separation agreement. The separated parties may then choose to do nothing further unless one of them wishes to remarry. Alternatively, if the issues are not resolved at this stage, one or both parties may wish to file a petition for divorce.
If the separation took place unilaterally, one or both spouses often seek legal advice immediately. An application may be made to the court for an interim order dealing with custody, support and possession of the home even before negotiations begin. Sometimes, a spouse may have sought legal advice prior to separation and may initiate interim court proceedings immediately upon separation.
In the majority of cases, the parties proceed with a legal divorce. There may be one or more court orders or consent orders, a separation agreement, or only a verbal understanding between the parties prior to the filing of a divorce petition.
Divorce proceedings technically commence when one or both spouses (joint petition) file a petition (or application) with the court. The petition usually describes the length of the marriage, the legal grounds for seeking the divorce, the income and assets of the applicant spouse, and the children of the marriage. Orders for custody and support of the children and spousal support are also proposed. Applications for property division, which are governed by provincial or territorial statutes, are often joined with the divorce petition. Some provincial or territorial rules require an application for property division to be made in separate documents, but permit it to be heard at the same time as the divorce petition. Other jurisdictions' rules permit property claims to be included directly in the divorce petition. Occasionally, an application for property division has already been made and decided before the divorce proceedings begin.
In all jurisdictions, spouses may file a petition before a one-year separation is completed, though the divorce may not be granted until after one year of separation, if that is the grounds for divorce. Once the petition has been filed in court, it must be served on the respondent. The respondent then has a specified time in which to answer the petition.(3) If the parties have already entered into a separation agreement and the order requested in the petition incorporates the terms of the agreement, a response is usually not filed. Similarly, when the respondent agrees with the petition (or does not wish to actively contest it), a response is not filed, even if there are no previous orders or agreements. This type of divorce is referred to as "uncontested." (4) In most jurisdictions, the petition may then proceed without an oral hearing. A judge reviews the documents and makes a divorce judgment. If neither party appeals the divorce judgment, it takes effect in 31 days. If there is an order regarding matters such as child support, custody and access as part of the judgment, this part of the judgment may take effect immediately.
If the respondent files a legal response to the petition, then the petitioner is in turn given an opportunity to respond to that. Negotiations often take place at this point and mediation or other forms of alternative dispute resolution may also occur.(5) If the issues in dispute can be resolved, "minutes of settlement" or a separation agreement may be drawn up or the parties may agree to the terms of the orders to be included in the divorce judgment, and the divorce will proceed as if it were uncontested. A respondent may wish to attempt negotiations before filing a response. If negotiations are successful, any resulting written document is usually called a separation agreement (or minutes of settlement). If issues are not resolved, an answer is filed and the divorce is then contested.
If issues cannot be quickly resolved, it may be necessary to apply for interim orders for matters such as custody, child and spousal support, or possession of the matrimonial home, especially if the divorce proceedings are likely to be lengthy or if there is a need for financial support (which is usually the case if there are children). In urgent cases, for example when there are spousal abuse issues, there may be an urgent (ex parte) interim hearing scheduled without notice to the other party; such an order may be reviewed.
Examinations for discovery will be held to provide each side with an opportunity to examine the other party under oath in preparation for trial; (6) each spouse is questioned by the other's lawyer for this purpose. If there is a dispute regarding custody or access to the children, an assessment by a psychiatrist, psychologist or social worker may also be done. As an assessment and examinations for discovery proceed, or more typically after they are completed, negotiations may begin or continue and minutes of settlement or a separation agreement may result and the divorce may proceed as if it were uncontested. If the parties enter into a separation agreement at any point, they may file a document with the court indicating that it will proceed by consent, which in most jurisdictions does not require an oral hearing for a divorce to be granted.
Failure of negotiations after examination for discovery usually results in a trial, where each party presents evidence on each of the issues in dispute. The final decision is made by the judge. The judge's rulings on child support and other issues are included in the divorce order and, if no appeal is filed, the divorce takes effect 31 days later.
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