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Posted on February 21st 2006 in Family Law

Quickie Divorce – Not!

Quickie Divorce – Not!

People who are separated often delay getting divorced. Sometimes, however, an impending event (usually an intended remarriage) will create a sense of urgency.

There is, however, no such thing as an instant divorce. Asking a lawyer to obtain a quick divorce is expensive, uncertain and to some degree beyond a lawyer’s control.

A person cannot be divorced until at least twenty days have passed from his or her spouse having been served with the petition for divorce and then only if the other spouse has not filed an answer – the equivalent of a statement of defence. If the spouse is out of province, they have between 40 and 60 days to respond.

Clearance Certificate
Most importantly, no court will grant a divorce until it has received notification (a “clearance certificate”) from Ottawa that the divorce can be granted by that particular court. It takes between six and eight weeks for a clearance certificate to be issued, mailed, received and filed by the court. No judge will grant a divorce if there is no clearance certificate in the court file and there is nothing a lawyer or judge can do to expedite the delivery of the certificate.

Even after a divorce is granted, there is a thirty day period before remarriage is possible. A lawyer can try to eliminate the thirty day waiting period by having the ex-spouse sign an undertaking not to appeal the divorce, but that requires extra work as well as the co-operation of the ex-spouse and adds to the cost of the proceeding.

Divorce Judgment
Assuming that the clearance certificate has arrived and an undertaking not to appeal has been signed, there is one final hurdle to overcome. Normally, it takes the court between two and four months to issue a divorce judgment and return it to the parties. If a petitioner wants a divorce more quickly, his or her lawyer must place special clauses in the petitioner’s affidavit explaining why it is urgent that the divorce be granted immediately.

Then the lawyer must convince a registrar at the court office that there is good reason to put the motion record before a judge that same day. If successful, the lawyer will be directed to a judge who may or may not have time to review the material. The lawyer will often have to convince a court registrar to take the material to a judge. If a judge does not have time to review the material or if the registrar is not co-operative, the lawyer will have to try and find a more agreeable judge.

Having found a judge, the lawyer must persuade him or her to consider the motion record then convince the judge to grant the judgment. In a case that was heard in 2001 an Ontario judge stated that most people who are separated intend at some time to remarry and an imminent remarriage is not by itself, therefore, a special circumstance that justifies granting an immediate divorce.

If the judge signs the judgment that day, the lawyer must then convince the local registrar to stamp and record the judgment right away, rather than take the usual two weeks and then sign a certificate of divorce that day.

All of this adds enormous uncertainty, cost and stress to the file and this is assuming there are no other problems (such as difficulty serving the petition) that might delay things further.

Minimum Six Weeks
To conclude, it takes a minimum of six weeks from the date a petition is issued to the date when a divorce can be signed. Stories people tell of having their divorce petition issued and the divorce granted on the same day are not true – at least not in Ontario. Neither will a joint petition hurry matters along as no divorce will be granted until the clearance certificate arrives and the parties will still have to convince a judge of the urgency of granting the divorce.

If you are separated and plan to remarry, getting divorced from your previous spouse should be the first thing on your agenda. The added stress and cost of a “quickie divorce” may ruin what should be a joyous occasion and there is always a chance that the divorce will not be obtained in time, in which case, you will have to postpone the wedding.

Finally, remaining married maintains rights and obligations between people that perhaps the parties do not want to maintain and that alone may be reason enough to get divorced.

Grounds for Divorce
A divorce may be granted on the ground that there has been a breakdown of the marriage. A breakdown of a marriage is established only if

– the spouses have lived separate and apart for at least 1 year immediately before the divorce;
– one of the spouses has committed adultery;
– one spouse has physically or mentally abused the other spouse.

Both Nicola Savin and Jacqueline Peeters practice in the area of family law. Please visit our specialty site at www.familylawtoronto.ca