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Procedural Fairness In Divorce

In accordance with the law, family courts must administer justice equally and without discrimination. In some cases, however, lawyers and judges still construct recommendations or decisions based on outdated stereotypes.

Fortunately, there are judges who support procedural fairness and write decisions that uphold the right to procedural fairness. This is because sometimes in cases of divorce, the information submitted in an application is misunderstood by the court reviewing your file. Other times, an officer may have information conflicting or inconsistent with other information on your case.

If you feel you have been treated unfairly or wronged by the legal system during a divorce or another family matter, this article about procedural fairness might be of help. Keep reading for more information.

What Is Procedural Fairness In Divorce?

Procedural Fairness In Divorce

Procedural fairness is a central concept in administrative law. It refers to the process by which an administrative decision is reached being fair and it is fundamental to the administration of justice. On the basis of procedural fairness, a person can file an appeal and get a decision overturned.

In divorce, procedural fairness means acting fairly in administrative decision making process on the child custody, child support, division of property, etc. It relates to the fairness of the procedure under which a decision is made, and not the fairness in a substantive sense of that decision. It means a fair hearing and not a fair outcome. 

A decision may be found to have been procedurally fair even where the decision arrived at was not fair. Conversely, there can be a failure of procedural fairness even though the decision made was fair. Lastly, when there has been a denial of procedural fairness, the decision that is made is invalid regardless of whether or not the decision itself was the correct or preferable decision.

When Is There A Duty To Accord Procedural Fairness?

Administrative decision-makers are required to give a person procedural fairness before making a decision that will affect their rights, interests or legitimate expectations. Administrative decisions are decisions by courts, government departments, and agencies such as decisions on divorce

For example, some changes may have been made in your divorce case proceedings, or you may have overlooked any errors in your documents. When this happens, you will likely receive what is called a “Procedural Fairness” letter from the officer reviewing your file.

If you receive a letter like this, the first thing you should do is take it extremely seriously. As the court rarely allows applicants to address specific concerns, any response to these letters should be as thorough and complete as possible to alleviate any concerns the court may have. Common situations where a procedural fairness letter may be issued include:

  • Potential misrepresentation
  • Possible misunderstanding of the nature of a relationship
  • Potential medical inadmissibility
  • Lack of supporting documentation
  • Inconsistent information in an application

What Does Procedural Fairness Involve In Divorce?

Depending on the circumstances, what is required to ensure procedural fairness in divorce will vary. Parties must always be given a reasonable opportunity to present their case and what amounts to a reasonable opportunity will vary depending on the circumstances. With that, here are the components of procedural fairness in divorce:

  • Myths About Divorce Cases

    • The court would side with you if your spouse cheated.
    • You can’t get divorced if your spouse won’t agree to it.
    • I purchased the house before we got married, so it’s mine once I get divorced.

  • But the Reality is ...

    • The court follows a no-fault divorce system, wherein the court doesn’t care one spouse is at fault or not.
    • You don’t need an agreement from your spouse to get divorced.
    • The other spouse is likely entitled to a share of the house unless both parties signed an agreement that spells out how property division will be done in case of a divorce.

The fair hearing rule

The fair hearing rule is the rule that the decision-maker must give a person the opportunity to be heard before it makes a decision that affects them. A fair hearing generally means:

  • giving the person prior notice that a decision will be made that will affect their interests;
  • disclosing to them the critical issues to be addressed and any information that is credible, relevant and significant to deciding them; and
  • conducting a substantive hearing (which may be oral or written) where the person is given a reasonable opportunity to present their case. In some circumstances, there will be a duty to allow the person involved to have legal representation at the hearing.

The rule against bias

The rule against bias is the rule that the decision-maker must not be biased in a way that prevents them from making a decision that is objective and impartial. A decision-maker must be free of any actual bias as well as being free of any apprehension of bias. An informed layperson can determine whether a decision-maker is biased by considering the circumstances of the case.

The Things You Should Fight For During Divorce

A fair custody agreement While that may have been more common in the past, judges now believe that children need equal access to both parents. To get 50-50 parenting time, you will need to prove to the court that you can provide appropriate housing, proximity to their school, and a work schedule that accommodates your visitation time.
Child tax credit A child is usually exempted from taxes and receives a tax credit if the primary custodial parent claims them. Even if you are the non-custodial parent, your spouse may sign an exemption to release the credit to you. You can receive other credits, such as dependent care, if you qualify for the dependent child credit. If you and your spouse want to claim the exemption in alternating years, that would be entirely reasonable; come tax season, you will appreciate it.
A fair alimony agreement It is important to take care of alimony before your finances are affected, possibly a long time down the road. Be aware that alimony is highly negotiable and there are different types of alimony that may fit your situation.
Accurate real estate valuations To accurately value your house, hire a licensed real estate appraiser. A fair split will be determined by the appraiser for a buy-out. If neither of you can afford the house and you decide to sell, the appraiser will determine the list price. Even though you may be hesitant to spend more money on an appraiser, it’s well worth it. Your house is likely to be your most valuable financial asset.
Equitable distribution of pension benefits Make sure you ask for a share of your spouse’s pension because you will not be able to do so if you wait till they retire. Make sure you have all the necessary documents to receive your share. In this way, you will not have to go back to court and risk losing your pension as well as paying legal fees and court costs.


If you feel you have been treated unfairly or wronged by the legal system during a divorce or another family matter, talk to an experienced family lawyer from Gelman & Associates to know more about procedural fairness.

Pro Tip

“If you want to make it through your divorce hearing successfully, it’s so important to put your best foot forward and be totally prepared for every court hearing that happens.”


Get in Touch with Your Toronto Family Lawyer

If you feel you have been treated unfairly or wronged by the legal system during a divorce or another family matter, contact experienced family lawyers from Gelman & Associates. At Gelman & Associates, we will review the details of your case and determine a strong legal strategy that will allow you to secure a fair divorce agreement. As long as your rights have been violated, we will identify your options and help you to correct the injustice.

Contact Gelman & Associates to learn how experienced family law lawyers can help protect your rights and assets during a separation, divorce or any other family law matter. In order to be available to clients and prospective clients, our phone lines are open Monday to Friday from 8 AM to 8 PM. Call us at (844) 769-0737 or 1-844-769-0737 or contact us online for a confidential initial consultation. 

Read FAQs on Procedural Fairness

Can a divorce ruling be appealed?

Any party to the divorce may appeal the decree, so long as doing so is not prohibited by state statute. Depending on the province and circumstances, both parties can file an appeal to the decree at the same time. Because the appellate system provides much deference to the original judge. However, it is not impossible.

How do I challenge an unfair divorce settlement?

If you and your spouse agreed on a settlement during your original divorce proceedings, appealing the decision can be next to impossible. Your next option is to have your divorce agreements modified. With the help of family lawyers from Gelman & Associates, you can file a motion to modify the divorce decree in light of new evidence.

What is the difference between procedural and distributive justice?

Distributive justice refers to the perceived fairness of outcomes or resource allocations, whereas procedural justice refers to the perceived fairness of rules and decision processes used to determine outcomes.

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