Uncontested Vs. Contested Divorce: Which One Is Best For Me?

When parties decide to file for a divorce in Canada, they typically fall into two categories. Either an Uncontested Divorce or a Contested Divorce.

UNCONTESTED VS. CONTESTED DIVORCE

To file for an Uncontested Divorce, the parties need to meet certain criteria:

1. The parties have lived apart for the length of one year, and do not intend to reconcile the relationship;
2. The parties have committed adultery;
3. A spouse has received physical, or mental cruelty during the relationship.

It is recommended that if the parties have any children or share any property or assets together, that there be a parenting or separation agreement in place, to satisfy the Court that the children are properly looked after, and to divide any shared assets before filing for the divorce. 

If the parties do not dispute the substantive portions, they will be able to proceed with an Uncontested Divorce. This process is quite straightforward, compared to a Contested divorce.

The first step is to file an Application for Divorce at the Court that is in the municipality that the parties have resided in for one year, or alternatively, to file in the municipality where the children reside. The Applicant Spouse will have to file a copy of the Marriage Certificate/ Registration of Marriage. If the parties do not have the certificate, they will have to file an Affidavit with the reason for not having it along with the other materials. 

There is a filing fee for this step of the divorce process. The Applicant Spouse who initiates the divorce will then serve the Issued Application for Divorce to the Respondent Spouse via a process server. The Respondent has 30 days to respond to the Application. 

After the 30 days are up, the Applicant Spouse can file the Application and Affidavit for Divorce, which illustrates the care for the children (if any), as per the Family Law Rules. The parties will also file a draft Divorce Order. Once the Court has received the necessary documents, they will set the Divorce down, and provide the parties with a Divorce Order. The Divorce order will take effect 31 days after the date that was granted by the Court.

Alternatively, if parties cannot agree on the terms of a divorce, they can file for a Contested Divorce. It is recommended that the parties seek legal advice and representation to protect their best interests. Depending on the case, this option for divorce can be lengthy as the parties and their representation attempt to mediate and come to an agreement. 

Uncontested vs. Contested Divorce. If parties are unsure if they are eligible for an Uncontested Divorce, they should seek legal advice from a lawyer to advise them on the next steps.