DIVORCE

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A divorce can take one of two routes, one that is a straight road or one with a few turns. The first option is the unopposed divorce and the second is the opposed divorce.

 

The opposed divorce

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The opposed divorce is a lengthy and costly exercise which could go on for years. Typical disputes in an opposed divorce are division of assets, forfeiture of assets, custody, maintenance for spouses and children. When the spouses cannot agree on certain aspects this is unfortunately the only route to follow.

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The opposed divorce process consists of 3 main stages:

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1. Exchange of pleadings;

2. Interim maintenance and custody applications;

3. Discovery and exchange of documents;

4. Pre-trial;

5. Trial and judgement.

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These 5 stages will be discussed more fully herein under:

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Exchange of Pleadings:

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Pleadings consists of the following documents:

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1. Summons: the summons sets out how the Defendant can defend the action and the time periods. The Defendant has 10 days (where the parties live in the same jurisdiction) or 21 days (where the parties live in different provinces) after the date of service of the summons to defend the action;

2. Particulars of claim: this sets out the Plaintiff's claims pertaining to division of assets, maintenance and custody;

3. Notice of intention to defend: This states that the Defendant wants to oppose the divorce;

4. Plea: The Defendant has 20 court days to deliver a plea. A plea sets out the Defendant’s response to the Plaintiffs particulars of claim. This is done by admitting, denying, asking for them to prove it etc. Upon the event that the Defendant fails to deliver the plea on time they can get barred from doing so by delivering a notice of bar which grants them 5 court days in which they must then deliver their plea;

5. Counterclaim: Is when the Defendant sets out any counterclaim that he/she may have.;

6. Plea to counterclaim: The Plaintiff must now deliver a plea in response to the Defendant’s counterclaim within 10 court days.

7. The pleadings stage is now closed.

8. In certain instances, where the parties are married out of community of property, a financial disclosure will be exchanged immediately following the close of pleadings. This allows each party to see each others assets and liabilities.

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Interim arrangements:

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At this point, if the parties cannot agree on matters such as maintenance and custody of children, either party main bring a Rule 43 application for the court to determine interim maintenance and custody arrangements pending the finalisation of the trial.

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The next stage is the discovery stage:

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1. Discovery affidavit: Each and every document that a party will use at trial must be ‘discovered’. Discovery affidavit consists of two schedules, the first detailing the documentation to be used at trial and the second detailing any documents over which the deponent claims privilege. Each case will differ based on the merits, however the typical documents that would be discovered is: proof of income, bank statements, pension and share certificates, financial statements, liabilities and proof of expenditure.

2. Subpoena: An attorney will issue this document to financial institutions to deliver documents the other party failed to deliver.

3. Further discovery and particulars: this is when the opposing side believes that in addition to what you have already provided you have other relevant material in your possession. A party can request same no less than 20 days before the trial.

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The final stage is the trial and judgement

 

The pre-trial stage is when the attorneys and advocates meet to arrange issues in preparation for trial.

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The final stage is the trial and judgement:

 

Trial: This is the actual court date, where all the parties and their legal representatives attend at court to argue the matter.

 

Judgment: This is when the court makes its decision based on the evidence before him/her.