The Top 5 Things to Know if you are Preparing your Own Application for Divorce

ByCommonSenseLawyer

Filing your own divorce application in Saskatchewan is possible, but there are five things that trip people up. From not knowing whether you need a separation agreement first to filing the wrong forms, a lawyer on a limited retainer can review your documents and catch problems before they become expensive ones.

Young couple preparing divorce application

Most separating spouses desire an amicable divorce. Many hope that this can be achieved quickly, efficiently, and preferably without the expense of involving family lawyers. This is indeed possible, however, there are a few important things to know before you get started.

1. Do You Need A Divorce, A Separation Agreement, Or Both?

A Divorce is the legal termination of a marriage. In Canada, you cannot be married to more than one person, and so if you are legally married, you must then be divorced before you can get married again.

A Separation Agreement is a written document that sets out all the details related to how you will parent your children, how you will divide your family property, and what kind of financial support will be paid by one spouse/parent to the other (where applicable).

If you have not yet reached an agreement on the issues of parenting, family property division, and financial support obligations, you will want to consider negotiating with each other directly or using a process like mediation1 or collaborative law2 to make these decisions before bringing your application for divorce.

2. Do You Qualify For Divorce?

In Canada, the Divorce Act sets out three grounds for divorce: physical or mental cruelty, adultery, or because you have been separated for at least one year.

If you are applying for a divorce because of adultery3, the spouse who has committed the adultery is required to complete an affidavit in which they admit to having done so.

If you are applying for a divorce based on having been separated for a minimum of one year4, it will be essential to confirm that you and your spouse both acknowledge the same date of separation.

You are generally only eligible to apply for divorce in the Canadian province or territory where you have lived for a full year immediately before making your application.

3. Does Your Spouse Also Want A Divorce?

If you and your spouse are both wanting a divorce, you can file a Joint Petition5 for divorce. If you have children, the Court will require evidence of a child support agreement6 and proof of income of both parents. The Court may also require a copy of your Separation Agreement that sets out the details of your parenting arrangement.

If your spouse is not opposed to getting a divorce but does not want to participate in the process, you can apply for an uncontested divorce after the requisite time to respond to the Petition7 has expired. If you have children, the Court will still require evidence of a child support agreement and proof of income of both parents, even if the other parent is not participating in the application for the divorce process.

If your spouse is opposed to getting a divorce they may respond to the Petition with an Answer or an Answer and Counter petition8. Once you receive your spouse’s Answer and Counter Petition, you will want to consider negotiating the terms of a Separation Agreement directly or with the assistance of a lawyer. You may also be required to participate in a mediation, collaborative law, parent co-ordination9 , or arbitration10 process prior to being able to proceed further in the court process to have your matters determined by a judge11.

4. Make Sure You Have All Your Documents In Order

Your original marriage certificate is filed with the Court when you submit your Petition. If you do not have your original marriage certificate, you can order it from the jurisdiction where you were married in. If your original marriage certificate is in a different language, you will need to include a certified translation along with the marriage certificate and Petition.

If this is a Joint Petition or is proceeding with your spouse’s consent, and you have reached an agreement on all your issues, you will complete a Waiver of Financial Statement12 and/or a Waiver of Property Statements.13

If your spouse is not participating in the divorce application process with you and you have a child support or spousal support claim, you will also file a sworn Financial Statement14 along with your last three years of income tax returns and notices of assessment.

If your spouse is not participating in the divorce application process with you, and you have a claim for the division of family property, you will also file a sworn Property Statement.15

You will need to prepare additional documents, including an Application for Judgment in an Uncontested Family Law Proceeding/Uncontested Divorce Proceeding16, an Affidavit of Petitioner/Respondent17, a Judgment of Divorce18, and a Certificate of Divorce.19 20

5. Consider Getting Independent Legal Advice On A Limited Retainer

Though all the necessary court forms are easily accessible online, and there are various resources to assist you in putting together your application for divorce21, there may be legal implications arising from your separation and divorce that you have not considered.

A lawyer can provide you with legal advice, review your documents, and even submit documents to the Court on your behalf.

If you hire a lawyer to attend to specific tasks, they will be working for you on a limited retainer basis, which means they will only charge you for those specific tasks, either on a flat-fee basis or hourly. You can request a quote and reach an agreement as to fees in advance.

  1. Mediation involves a neutral third party who helps facilitate your negotiations.
  2. Collaborative law is a process where both parties have their own collaboratively trained lawyers and possibly a divorce coach and/or a neutral financial specialist who all work as a team to assist you in your negotiations. All professionals involved sign a Participation Agreement that disqualifies them from further involvement in any adversarial process should your negotiations breakdown.
  3. In Saskatchewan, Form No. 15-82 is to be completed and sworn by the spouse who has committed adultery.
  4. An affidavit is a written statement confirmed by oath or affirmation for use as evidence in Court. An affidavit must be sworn in front of a Commissioner for Oaths or a Notary Public.
  5. In Saskatchewan, a Joint Petition is Form No. 15-100A. 
  6. In Saskatchewan, an Agreement as to Child Support is Form No. 15-48. This Agreement must be witnessed and the person who witnesses your signature must swear an Affidavit of Execution in front of a Commissioner for Oaths or a Notary Public.
  7. In Saskatchewan, a Petition is Form No. 15-16 and the Court will charge you a fee to have your Petition issued. Your spouse must be served with the Petition after the Court has issued it (which means they have stamped it and given it a Court number). Whoever serves your spouse (it can’t be you and shouldn’t be any other family members), will swear an Affidavit of Personal Service (Form 15-8A).
  8. In Saskatchewan, an Answer is Form No. 15-19A and an Answer and Counter-petition is Form No. 15-20.
  9. Parent Coordination is a child-focused dispute resolution process for separated families that deals with parenting disputes.
  10. Arbitration is a process where parties can ask a third party (the arbitrator) to decide the issues in dispute for them. This decision is kept private and confidential and is not subject to Court rules or procedures.
  11. Saskatchewan has an Early Family Dispute Resolution requirement. The ADR Institute of Saskatchewan, the Collaborative Professionals of Saskatchewan, and the International Academy of Collaborative Professionals are great resources to learn more about mediation, parent coordination, arbitration, and collaborative law.
  12. In Saskatchewan, a Waiver of Financial Statement is Form No. 15-48A. This document must be witnessed and the person who witnesses your signature must swear an Affidavit of Execution in front of a Commissioner for Oaths or a Notary Public.
  13. In Saskatchewan, a Waiver of Property Statements is Form No. 15-50. This document must be witnessed and the person who witnesses your signature must swear an Affidavit of Execution in front of a Commissioner for Oaths or a Notary Public.
  14. In Saskatchewan, a Financial Statement is Form No. 15-47. This document must be sworn in front of a Commissioner for Oaths or a Notary Public.
  15. In Saskatchewan, a Property Statement is Form No. 15-49. This document must be sworn in front of a Commissioner for Oaths or a Notary Public.
  16. In Saskatchewan, an Application for Judgment in an Uncontested Family Law Proceeding/Uncontested Divorce Proceeding is Form No. 15-76A. You will only complete this and the remaining documents if you and your spouse have filed a Joint Petition or if the request time has expired without a response being filed by your spouse. The Court will charge you a fee for issuing the Judgment of Divorce.
  17. In Saskatchewan, an Affidavit of Petitioner/Respondent is Form No. 15-78
  18. In Saskatchewan a Judgment of Divorce is Form No. 15-102. You will file 3 copies of the Judgment of Divorce – one for the Court file, one that will be mailed to you, and one that will be mailed to your spouse.
  19. In Saskatchewan a Certificate of Divorce is Form No. 15-103. You will file 3 copies of the Certificate of Divorce – one for the Court file, one that will be mailed to you, and one that will be mailed to your spouse.
  20. In Saskatchewan, you will also submit 4 self-addressed envelopes (2 addressed to yourself and 2 addressed to your spouse) for the Court to use when they mail the Judgment and the Certificate to you and your spouse.
  21. For example, the Family Law Information Centre at the Saskatchewan Ministry of Justice has Self-Help Kits. Saskatchewan’s Public Legal Education Assistance “PLEA” also has an interactive website to assist you in completing your family law forms.

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