A divorce proceeding is where either or both spouses apply for the divorce itself or coupled with child support, spousal support, or custody order. Corollary relief proceedings are in regards to child support, spousal support, or custody orders. A variation proceeding relates to a party seeking to vary, rescind, or suspend a support or custody order.
Breakdown of Marriage
For spouses to obtain a divorce, there must be a “breakdown of marriage” according to the federal divorce act. This may occur in one of two ways, the first option being for the spouses to have lived separate and apart for at least one year. Secondly, a breakdown of marriage may occur where one spouse has committed adultery or has treated the other with physical or mental cruelty to the point that continued cohabitation is intolerable.
Bars to Divorce
According to the Divorce Act, there are three apparent bars to divorce. The first being collusion, defined as an agreement or conspiracy to which an applicant is a party to subvert administration of justice. This would include any agreement to fabricate or suppress evidence or for the means of deceiving the court. Usually, collision arises in divorces that are apart of an immigration scheme.
The second bar, being reasonable arrangements for the support of children being made. If the parties fail to do so, the divorce will have stayed until such time. It would be ideal if the arrangements were made in writing.
The third bar is where the breakdown of marriage is based upon adultery, and the applicant has condoned or connived in the act or conduct complained of such behaviour. The application will thereby be dismissed unless there is a public factor weighing in favour of granting a divorce.
It is our duty as lawyers to give value to provisions of the Divorce Act that have an object of reconciliation of spouses. Thereby, it is in best interests to discuss the possibility of reconciliation, through means of marriage counselling or guidance facilities. However, this obligation will be disregarded where the situation is of “such a nature” that it would not be appropriate to do so.
It is also an obligation for us to discuss the possibility of negotiating matters that may be subject to support or custody orders. Our lawyers will advise of the appropriate mediation facilities that may be able to assist in these matters.
If parties are unable to attain an agreement, litigation will pursue. The rules direct courts to encourage and facilitate alternatives to litigation. Usually, many matters will turn to alternative dispute resolution methods.
In the course of a matter, a party may seek an interim decision in regards to custody and access. The party with the de facto custody is likely to be awarded temporary custody and access. The final decision will be subject to evidence, witnesses, etc.
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Sooch Law Professional Corporation is a full service law firm in Mississauga that focuses primarily on Real Estate, Civil Litigation, and Personal Injury. We have our office located conveniently at Hurontario & Derry.