Contested Divorce Process

In a contested divorce, both parties do not agree on essential issues like property division, child-decision making, or spousal support. This situation often requires court intervention.

The process includes filing documents, attending hearings, and possibly a trial, which can take significant time.

 

Preparing for Court Appearances

Preparation for court appearances is critical in contested divorces. Clients must gather all necessary documents like financial statements and communications relevant to their case.

Witness preparation is also essential; this could involve practicing testimony and preparing for cross-examinations.

It is extremely important to be well-prepared and understand courtroom procedures. This includes knowing when to present evidence and how to effectively communicate your case. Proper preparation can significantly affect the outcome of a trial, ensuring that all points are clearly conveyed and considered by the judge.

 

Court Procedures

Case Conferences

A case conference is the first court appearance in most divorce processes. It takes place at the courthouse and a judge assists the parties in identifying issues and possible settlements. Both parties and their lawyers attend the conference.

The judge can, and will likely, make orders necessary to move matters forward including orders for financial disclosure, scheduling a motion, and setting a settlement conference date.

Motions

Motions are battles within the war of the court process.

Most motions are a resolution, on a temporary basis, of one or more issues, such as parenting time, or support.

A party who is seeking a court order must apply to the court through a motion, and provide evidence to support why a judge should order what that person wants. The responding party then has the opportunity to provide evidence about why that relief should not be granted.

When lawyers prepare for motions, a factum is usually also prepared which details the statutes and case law a party is relying upon to support why their evidence, matched with the law, should result in their order being granted.

Motions involve technicalities, both of the law and court processes. Our lawyers at Alves Law are experienced in navigating these intricacies and can fight this battle for you when it is necessary.

Settlement Conferences

A settlement conference is a mandatory step in the court process before setting a contested divorce down for trial.

In some ways, a settlement conference has a lot of overlap with a case conference, where the parties and their lawyers attend court with a judge to try to resolve issues. However, it is usually very different from a case conference because parties will usually have spent a lot more time gathering information, perhaps running a motion to obtain a status quo, consulting with experts, etc. so they should be better placed to make a decision to bring things to a final resolution.

Another very different thing about a settlement conference is the threat of a trial. A trial is an expensive and time consuming affair. Most people cannot afford to run a trial, and even if you can, the stress and uncertainty of the outcome of the trial is a reason a lot of people try to avoid having to go to trial. These concerns, along with the settlement conference judge’s viewpoint about either party’s likelihood of winning, can push people to settle at a settlement conference and bring things to a close.

Trial Management Conferences 

If parties do not resolve all their issues at a settlement conference, the remaining issues are pushed to trial. In preparation for the trial, the parties attend at a trial management conference where they confirm the number of days they will need for trial, who their witnesses are, whether any expert witnesses will be called, and timelines for final procedural matters to get to trail such as requests to admit facts, and agreed statements of facts.

Trial

If parties are still contesting issues and cannot reach an agreement, the court process for a final resolution of things is a trial.

 

Finalizing the Divorce

Obtaining the Divorce Order and Certificate of Divorce

The Divorce Order is the declaration that you are no longer married.

A court does not usually grant a divorce until all the other issues (parenting, support, property) are finalized.

A divorce can be granted at trial, if parties pursue that route for resolving their issues. However, if the parties have resolved their issues without a trial, the appropriate forms and evidence must be submitted to the court, and then a judge will grant the divorce.

The final step is to obtain a Certificate of Divorce, which is available 31 days after the granting of the Divorce Order, and is the proof that you are officially divorced.

The divorce itself is the only issue the parties must use the courts for. The only authority in Canada to grant a divorce is a court. However, parties do not need to use the courts to resolve their other issues and should consider alternative dispute resolution processes, where appropriate.

 

Alternative Dispute Resolution

Exploring Mediation and Arbitration

Mediation involves a neutral facilitator who helps the parties communicate and negotiate. It creates a cooperative environment where individuals work together to find agreeable solutions.

The mediator does not make decisions but guides discussions to help achieve a resolution. This process is flexible and can accommodate the needs and schedules of those involved.

Arbitration, on the other hand, involves an impartial third person who listens to both sides and then makes a binding decision. It is similar to a court trial but is usually less formal.

Arbitration can be faster than going to court, as parties agree on rules and timelines. It combines finality with the controlled environment of ADR.

 

Benefits of Avoiding Court Trials

Avoiding court trials through ADR tends to reduce stress and costs. ADR processes are typically more private, with less public exposure than court proceedings. They often resolve disputes more quickly, saving time and preserving resources for both parties.

Moreover, ADR allows for creative solutions not limited by strict legal precedents. Participants have greater control over the outcome, with opportunities to address personal needs better.