A contested divorce is one where an issue between the spouses is left for the court to decide rather than settled between them. What the Divorce Act fixes does not change with that, so what stays the same is a separate question from what is actually put to the court.
Residence, the ground for divorce and the effective-date rules apply whether or not the spouses have settled their dispute.
A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in that province for at least one year immediately preceding the commencement of the proceeding. The requirement attaches to residence, not to agreement.
A court of competent jurisdiction may, on application by either or both spouses, grant a divorce on the ground that there has been a breakdown of the marriage. The Act then sets the same routes to establishing that breakdown in every case: the spouses having lived separate and apart for at least one year immediately preceding the determination of the proceeding and having been living separate and apart when the proceeding was commenced, or adultery or physical or mental cruelty on the part of the spouse against whom the proceeding is brought.
A divorce takes effect on the thirty-first day after the day on which the judgment granting it is rendered. That is the usual rule and it is subject to the statutory exceptions: the court may order an earlier effect where it finds the circumstances warrant it and both spouses agree not to appeal, and where an appeal is pending the ordinary rule does not apply, the divorce taking effect only once the appeal period has expired or the appeal is disposed of. Once a divorce takes effect, it has legal effect throughout Canada.
The difference between a settled and an unsettled matter is about who decides the issues, not about what the Act requires.
In an uncontested or a joint application, the spouses have settled the issues between them and ask the court to grant the divorce. Where an issue is not settled, it is put to the court to decide.
The court's forms provide for a defendant to respond rather than let a claim proceed in default, and the defendant's forms include a counterclaim for divorce.
Where there are dependent children, the court must be satisfied that reasonable child-support arrangements have been made before granting a divorce.
For a settled application, use the instructions for the applicable joint or uncontested route.
A parenting dispute requires evidence relevant to the child and the applicable statutory factors.
evidence in a parenting dispute›
Parenting time, decision-making responsibility and guardianship are decided on their own basis, and a divorce judgment does not settle them.
A Calgary family lawyer works on what is actually in dispute and on the documents the court's forms provide for.
Identifying the issues. Which questions are genuinely unsettled, and which are agreed, decides what the matter is about.
Advising on procedure. Identifying the application and response needed for the disputed issues.
Preparing and responding to the court documents. The forms provide for a claim, for a response and for a counterclaim for divorce, and each has to be prepared.
Negotiating. Discussing terms that remain open to agreement, while preserving requirements the court must decide.
Representation. Bringing or responding to an application about unresolved issues.
A divorce ends the marriage; parenting, support and property issues also need to be addressed where they arise.
THEBIL Law is a Calgary family law practice advising and representing clients on Alberta family law matters, including divorce, parenting and child custody, child support, spousal or partner support, family property division, and prenuptial, cohabitation and separation agreements.
The office is at 5920 Macleod Trl SW Ste 720, Calgary, AB T2H 0K1, Canada, open Monday to Friday, 9 a.m. to 5 p.m.
If an issue between you is not settled, the first questions are which issues those are and what the court is actually being asked to decide.