May 15, 2021

Divorce court: where do I start?

If you must go to court, here are some things you need to know.

Likely you have been pushed to the point of considering court by a spouse who will just not get involved in the discussion of the things you need to sort out. This can be child support, parenting time, issues of your house, other assets and debts, and a divorce itself. This article is only for married spouses as common-law spouses have some entirely different laws that apply to them.

We always recommend that you try to settle before starting court. Get some legal advice on what you need to sort out and then see if you can send a written proposal to your spouse. Give them a few weeks to see if you get a reply. If you do not get a reply or one that is not even close to reasonable (for example, “I am not paying any child support” when the other parent knows they have an obligation to), then send them another letter saying you will start court if they do not negotiate with you. Failing a positive answer to that, you are off into the court system.

You first need to decide what you are going to ask the court for. A court can only give you what you ask for. They are not going to automatically know what you need. If you have a right to child support AND spousal support, but you do not ask for both, they will not tell you to ask for both. You can seriously short-change yourself if you miss something like that.

Some common legal issues that need to get resolved in divorce court are parenting decision making (the old language of custody), parenting time (the old language of access), child support, spousal support, and equalization. Equalization is the sorting out of your assets and debts. This is commonly your house, perhaps a pension or RRSP, cars, mortgages, and lines of credit. There can be other things. You may be involved with a business with your spouse and those shares need to get resolved. You may have a cottage. If you are in divorce court, you must list all the things you are asking the judge to sort out for you. You should also ask for Court Costs. You may need to ask the court that your spouse be ordered to move out of the house in a case when living together is no longer tolerable. That is called exclusive possession of the matrimonial home. By now, you are likely thinking this is a long list and that you need to be careful of what you put in these court papers. You are right. Therefore, we recommend you learn about the legal rights you have before you fill in the papers, even for a short consult. You do not give up control of the case, you just get assistance from a lawyer to learn what you need to do.

Let us say you have had that consult and now know what your list is of the things you need to ask the court for. The next thing you need to do is figure out which court you are in. This depends upon where you live and how long you have lived there. In Ontario, you must be living in an area for one year before the court has jurisdiction to hear your case. However, it is not as straightforward as just thinking that you need to start in the county or city where you live. Children must be considered too. For example, if you live in Toronto, and have been for the past year, but your spouse and children live in Kingston, and Kingston is where they have lived for the past year, then the court you must start your case in Kingston, not Toronto. Your case could be started in Toronto but then as soon as your spouse files responding documents and says that the children and that person live in Kingston, your court file will either be dismissed or moved, and both mean delays and more costs to you to re-file in the other court. Talk to a lawyer to find out where you need to start first.

Let us assume you know where to start and know your list of questions. Now you need to start the forms. The main forms are an Application, a Form 13.1 financial statement, and if there are children, a Form 35.1 Affidavit. To get these going not only do you need to know the list of items you want to ask the court for, but you need to get all your financial information together. Often the financial statement is the most difficult thing to complete.

To get started you must know the items you want to ask the court to resolve for you, then you must get all your financial assets to complete the financial statement. That means getting statements for your bank accounts, any RRSPs/RRIFs, TFSAs, pension, and insurance policies. You must list values for cars, boats, RVs, and similar vehicles. You must list debts such as your mortgage, a line of credit, car loans, and any credit cards or other debts. Gather pay stubs for the last three pay periods and your last three years of income tax returns. A financial statement needs a blog post on its own, but this should get you started. As always please call us for a quick consult to help you figure out where you need to start.

 

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