Doing Your Own Divorce in Canada

Many Canadians prepare and file their divorce papers without using a lawyer. If you choose to do your own divorce, remember that divorce law can be complicated and you will need to pay attention to detail and complete the forms correctly. This article originally appeared as a chapter in the book, Divorce Guide for Canada, written for Self-Counsel Press by lawyer Alison Sawyer, BA, LLB.

Doing your own divorce without legal advice or the help of a lawyer is best done under these circumstances:

  • The ground for divorce is that you have been living separate and apart for at least one year. In some provinces and territories, you will not be able to apply for an affidavit divorce if you use any other ground.
  • There are no dependent children.
  • Neither spouse needs financial support from the other.
  • All property (i.e., personal goods, vehicles, money, debts, RRSPs, pensions, and real estate) has been divided and both spouses are happy with the property settlement.
  • You only need to ask the court to make an order for the divorce itself.

If you have children under the age of majority and have yet to make decisions about financial matters, you will still be in a good position to do your own divorce if you and your spouse have —

  • signed a separation agreement, or
  • have a court order dealing with child custody, access, and support and/or division of property, or

  • have come to an agreement about any or all of these matters.

If you are financially self-sufficient, have no children dependant on you, or your spouse has been paying child support and is in agreement with the custody and support arrangements you are asking to be put in the Divorce Order, you can proceed with an affidavit divorce.

You will have to file enough information with the court (ideally in the form of a separation agreement or consent court order) to satisfy the judge that the arrangements are reasonable and appropriate. In some jurisdictions in this situation, you may still have to appear in front of a judge to get your Divorce Order.

What happens if we haven’t agreed on custody, access, and support?

The Divorce Act allows you to include applications for orders concerning matters such as custody, access, and support in your divorce application. While you do not have to ask the court to deal with these other matters, if they are included in the Divorce Order they can be enforced in every province and territory of Canada.

You should seek legal advice if any or all of these issues are still unsettled at the time you decide to apply for divorce. Without legal advice, you may not realize the extent of what you are entitled to upon separation, especially if you or you and your children will be financially disadvantaged by the separation and divorce.

You will definitely need legal advice if there are family assets of any value such as pensions or real estate that must be divided. You should also consider the tax consequences arising from separation and divorce.

What happens if we haven’t split our marital property?

Matrimonial property or family assets cannot be dealt with under the Divorce Act. They must be dealt with under provincial family or marital property statutes. Some provincial legislation and court rules will allow you to join an action under the provincial family legislation with a divorce action so that property matters can be heard at the same time as all the other family and divorce issues.

In some provinces, you can deal with property issues after your divorce has been finalized, though you must be careful of limitation periods.

Unless your spouse has signed a separation agreement or there are consent orders in place, if you have unsettled property matters you will likely not be able to do your own divorce without the help of a lawyer.

When should I get a lawyer?

In some situations, it may be more appropriate for you to consult a lawyer and use his or her knowledge and skills, rather than to attempt to do your own divorce. You may need the services of a lawyer in any of the following situations:

Service problems:

  • Your spouse resides outside Canada.
  • You don’t know the address of your spouse, despite having used a tracing service.
  • Your spouse is actively avoiding being served.

Family situations:

  • You and your spouse have not come to any agreement on child custody and access, and there have been no court orders regarding children.
  • You and your spouse are separated and you do not want your spouse to know where you reside.

Financial problems:

  • Your spouse has refused to disclose income and/or the details of his or her finances.
  • Your spouse won’t agree to pay support either for your child(ren) or yourself (if you are in financial need) or for both of you.
  • You and your spouse have not been able to come to an agreement about the division of property or debts.

Consent problems:

  • Your spouse has told you that he or she will be contesting or opposing your application for divorce.

In each of these situations, a lawyer can help you deal with the problem. Many lawyers can be hired to work on just one or two aspects of the case. They will quote either a flat fee or give you an estimate of how many hours of work your case is likely to require.

The only situation in which a lawyer may be required to take over the whole case is when your spouse is going to oppose the divorce and all the related issues up to and including a court trial.

When you hire a lawyer, you have to pay him or her an initial advance. This advance payment is called a retainer.

At the time you pay the retainer, most lawyers will have you sign a retainer agreement. The retainer agreement is a contract between you and the lawyer setting out the following:

  • The hourly rate
  • The method of payment (e.g., monthly or quarterly or when billed after each service is completed)
  • The out-of-pocket expenses you are expected to pay for (e.g., court filing fees, photocopying, process serving)
  • What the lawyer will be doing for you
  • When and how services will be terminated

Once you have signed the retainer agreement, you are said to have retained the lawyer and his or her services. The retainer will be kept in the lawyer’s trust account and transferred to his or her general account after enough work has been done to bill you for the amount of the retainer. If there is still ongoing work, the lawyer will bill you in accordance with the terms in the retainer agreement.

Some retainers are calculated on a flat rate — for example, $500 to draft the divorce application, file it, and arrange for service of the respondent.

Is mediation an alternative to consulting a lawyer?

Mediation is a process for settling disagreements. When two people cannot come to an agreement, they may hire a mediator to help them discuss their problems. Mediators are trained professionals. Some are also lawyers (but never for the people with whom they are acting as mediator), some are psychologists, and some are former managers.

The courts of some provinces and territories have government-funded agencies (such as the Family Justice Centres in B.C., the Family Information Centres in Ontario, and the Counselling and Mediation Services in Newfoundland and Labrador). These agencies often have trained counsellors who attempt to mediate between spouses — although they may not have the training of people who work solely as professional mediators.

The role of a mediator is to make it easier for two or more people to talk to one another and be heard. They are skilled at understanding what people are really trying to say. They are also trained to diffuse tensions and help people actually listen to each other.

Mediators do not make decisions for people or tell them what to think or do. Their job is to help people come to their own decisions and make their own agreements. They cannot legally divorce people or make legally binding separation agreements for them.

When is mediation appropriate?

Mediation is a good option for separating spouses either before the separation or after they have been apart for a while. The process can help them make decisions about issues such as how to provide for their children and how to divide their property. The process can be used for a number of issues or just one.

Mediation will only work if both spouses are in agreement that mediation is appropriate for them. Private mediators have to be paid, so the questions of who will pay the mediator (as much as $300 a session) and which mediator to use have to be decided first. If the spouses can’t get past these first steps, then mediation is clearly not appropriate. (Some Family Courts do provide free mediation services.)

Another consideration is whether there is a power imbalance in the relationship. If one spouse easily gets angry and/or abusive and then doesn’t listen, mediation is not going to be possible. Or if one spouse is still at the stage of being very emotional and easily moved to tears, mediation is not going to be effective. Both people have to be ready to talk and listen calmly to what the other person has to say.

Can a mediator draft a separation agreement?

A mediator can replace some but not all of what a lawyer does. A mediator will want the spouses to identify what the outstanding issues are between them and how each spouse wants to resolve the issues. If the mediator is successful in assisting the parties to compromise and come to an agreement, then a written separation agreement would be the best outcome.

Mediators sometimes help spouses write down their agreement, but not in a legally binding document.

An agreement written with the help of a mediator will not be legally binding unless each spouse has received independent legal advice to ensure that each spouse fully understands his or her legal rights and responsibilities outside the mediation process. A binding separation agreement also has to be properly signed in front of witnesses.

Mediators cannot advise you on the various areas of law. Mediators will assume that you are aware of the impact of the law on your situation. It is best if each spouse goes to his or her own lawyer to discuss his or her rights, responsibilities, and obligations before going to mediation.

Can I handle the divorce paperwork?

Doing your own divorce is appropriate where there are no complications (see sections above) and you are mentally and emotionally able to focus on detailed written work. You’ll need to follow all the instructions and accurately complete the court forms exactly in the format provided. You have to provide a Marriage Certificate in the proper form. If child or spousal support is being requested, then you and your spouse should also be prepared to file financial statements and income tax returns.

The first form you complete will ask for the following detailed information:

  • Identification information for both spouses and children under the age of majority (or, if older, dependent on you for their support)
  • Information about the date and place of marriage
  • Details of the marriage breakdown and grounds for divorce, including the date of separation
  • Information about who the children reside with, who supports them, the amount of child support being paid, and the amount of arrears if any
  • Terms of custody, access, and support being asked for
  • An explanation of what has happened to the family property (assets and debts)
  • Information about any family court proceedings, consent orders, or separation agreement

You also have to set out what you are asking the court to order (e.g., divorce, custody, support, and access), and the exact language of the terms you want included in the order.

The forms ask for information to be given in a very particular and precise way. You then take the completed forms to the court registry for checking and filing. Even lawyers have their forms rejected from time to time for not being precise enough or for being inaccurate.

The registry staff are not there to provide legal advice and are very cautious when asked questions by people doing their own divorces. The staff makes every effort to be helpful, but there are limits on how many and what type of questions they will answer.

You also have to pay the court filing fees and fill in a Registration of Divorce Proceedings (some courts do it for you) for the Central Divorce Registry in Ottawa. If you are not proceeding jointly with your spouse, then you have to arrange to have your spouse personally served by a professional process server or by a friend. After waiting the required number of days to see if your spouse will file a response, you have to prepare and file the documents necessary for a judge to sign a Divorce Order. (See Chapter 8 for more information about service.)

What are the steps for getting a divorce and how long does it take?

There is no simple answer to how long it takes to get an affidavit divorce. Most lawyers will suggest a time of three to six months from beginning to end of the divorce proceedings.Once you have filed the application for a Divorce Order, the time it takes to get the Divorce Order varies depending on —

  • how busy the court is,
  • whether a personal appearance in front of a judge is necessary, and
  • whether or not your application gets rejected and has to be resubmitted.

This process can take between one and three months.

Once the judge has signed the Divorce Order, you cannot get remarried until —

  • 31 days have passed (your ex-spouse has 31 days to file an appeal to the Court of Appeal), and
  • you have applied for and received the Certificate of Divorce. (This is the document needed to prove that you are divorced.)

See the flowchart (This is an Adobe Reader PDF file which will open in a new window. Close that window to return here).

What will it cost?

Even if you don’t use a lawyer, getting a divorce costs money. If there are no problems in your case, the expenses will probably add up to about $350. If you can’t afford the filing fee, most courts allow you to file without a fee. Ask the registry staff if this is possible. It may be possible if you are on social assistance or you earn wages that are close to the social assistance rates. This is called indigent status.

You can also ask your spouse to pay some or all of the expenses. The court rules allow you to include a request for “costs” in your application for divorce. If the court ordered your spouse to pay costs, however, you would be responsible for collecting the money from him or her.

The figures below are approximations only. The courts of each province and territory have their own fee schedules, and you should check with registry staff to see what the actual fees are. In some provinces and territories, there are no fees after you have paid the court filing fee. In other provinces, you pay the filing fee and a fee for the Divorce Order only. In most provinces and territories, you must pay an additional fee if you wish to obtain a Certificate of Divorce.

  • Certificate of Marriage $20
  • Application for Search of Central Divorce Registry $0 – $10
    • Application $70 – $218
    • Divorce Order $0 – $280
    • Court filing fee:
      • Substitutional service $100
      • Certificate of Divorce $30
    • Tracing service $150 – $400
    • Professional process service $30 – $75
    • Affidavit of Service $25 – $50
    • Swearing Affidavits $0 – $50

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