Written by: Carolyn Chambers
The following article is legal information and not legal advice. Should you require legal advice on your family law issue, please contact us to book a free consultation appointment.
If you want to proceed to obtain a Divorce, you need to complete Form 8A: Application (Divorce). This is the form you will use if you want to claim a Divorce only. It is recommended that the Form 8A be used if the only claim you are making to the Court is for a Divorce. If you are making claims for anything else (with or without a Divorce, including but not limited to decision-making authority of or parenting time with a child, child support, spousal support, property claims, etc.) you will use a different form.
WHAT TO CONSIDER BEFORE COMPLETING A FORM 8A: APPLICATION (DIVORCE)
Consideration #1: What are your other claims? What else could the other party claim?
Even if you think that the only claim to be made is a Divorce, it is recommended that you consult with a lawyer first. While you may only want to claim a Divorce, you or the other party may have other claims that may need to be addressed first or at the same time, as the Divorce. If the other party is served with your Application for a Divorce only, they still have thirty (30) days from the date of service to make any claims they may want to make. If they file an Answer within those thirty (30) days, then you will be in a full-fledged court matter, where your only claim will be for Divorce and the other party will have a number of other claims against you that you will have to respond to. It may then be costly to amend your Application to seek the other claims that you should have made in the first place. To avoid this, speak with a lawyer before you commence your Application for a Divorce to discuss your family circumstances and determine if this is the right path for you.
Consideration #2: How long have you or the other party lived in Canada?
If neither party has lived in Canada for at least one year prior to making a claim for a Divorce, then the Court does not have jurisdiction to grant the Divorce. You or the other party must be resident in Canada for at least a year before requesting that the Court grant your Divorce.
Consideration #3: Do you or the other party have children?
If you have children, it is important that the issues of decision-making authority, parenting time, and most importantly, child support have been settled, even on a temporary basis, before requesting a Divorce. The Court will be concerned about whether or not the needs of the children of the marriage are being met with financial support. If the children are not being properly financially supported, the Court may decline to grant a Divorce until they are satisfied that the needs of the children are being met.
Consideration #4: What is the basis for your claim for a Divorce?
In Canada, a breakdown of the marriage is the only reason for a Divorce. The breakdown can be based on three (3) reasons: 1) Separation from the other party for a period of one (1) year, 2) Adultery, 3) Cruelty. If the reason for the breakdown of the marriage is due to the separation from the other party for a period of one (1) year from the date of separation, then the Court will not grant a Divorce until the one (1) year timeline has expired. If the reasons are Adultery or Cruelty, in these cases, you can get your Divorce sooner than one (1) year after date of separation, but it is best to consult with a lawyer first, who can advise on what will be necessary to prove your claims and the advantages and pitfalls of making these claims.
Consideration #5: Do you have a matrimonial home, even if it was owned by one of the spouses during the marriage?
If so, it is important to speak with a lawyer before proceeding to obtain an Order for a Divorce. Obtaining a Divorce before dealing with the Matrimonial Home could affect certain protections under the Family Law Act that are special towards Matrimonial Homes. Once you are divorced the Matrimonial Home loses the characteristic of a Matrimonial Home and is now simply a “Family Home”, and is not protected in the same way under the Family Law Act.
Consideration #6: Are you or the other party dependent on the other’s medical, dental and extended health benefits plans?
If so, obtaining a Divorce could disqualify you or the other party from benefiting from such a plan. Replacement benefits could be costly to obtain.
If you have any questions about your situation and whether or not a simple Divorce only Application is right for you, feel free to contact Gelman & Associates.
