JOINT or CO-APPLICANT (UNCONTESTED) DIVORCE SELF-HELP KIT

Transcription

1 The Supreme Court of Newfoundland and Labrador JOINT or CO-APPLICANT (UNCONTESTED) DIVORCE SELF-HELP KIT You can use this kit to apply for a divorce if there are no other issues that are being contested. To apply for a divorce in Newfoundland and Labrador, one of the two parties must have resided in Newfoundland and Labrador for at least one year, and you must not have any other divorce proceedings started in any other Canadian province. *This self-help kit is not a substitute for professional legal advice. It does not address all possible situations nor does it cover all areas of applicable legislation. You use this kit entirely at your own risk. The legal process can be complicated and it is recommended that you consult with a lawyer before filing any documents and proceeding to court

2 Table of Contents Introduction Preliminary Requirements Completing the Forms (1) Commencing Your Action Completing the Original Application for Divorce Signing the Original Application (2) Issuing the Originating Application Courts in Newfoundland and Labrador (3) Applying for the Divorce Judgment Completing the Application for Judgment Completing the Affidavits of Applicant/Respondent Completing the Judgment for Divorce (4) Certificate of Divorce (5) What if I have questions when I am using this kit? Checklist Courts in Newfoundland and Labrador Forms Notice to Respondent and Originating Application (Form 56A.06A) Application for Judgment (Form 56A.24B) Affidavit of Applicant/Respondent (Uncontested Family Law Proceeding) (Form 56A.24C) Affidavit of Applicant/Respondent (Uncontested Family Law Proceeding) (Form 56A.24C) Judgment (Form 56A.46A) - 1 -

3 Introduction A divorce is the legal and formal ending of a marriage. You need to apply to a court to get a divorce. If there are no issues that need to be resolved by the parties, it is called an uncontested divorce. You can only use this kit to apply for uncontested divorces, where both spouses apply as co-applicants. As a result of any separation, there may also be other issues that arise, such as custody and access, spousal or child support, and division of matrimonial property. If you and your spouse have reached an agreement on these issues, you will be able to use this kit to apply for your divorce. If these issues have not been resolved, and you wish to deal with them, you should contact a lawyer to assist you. It is recommended that you see a lawyer before commencing any court proceedings or signing any agreement to be sure that you are fully informed about your rights and obligations. The following instructions will help you use the forms in this kit. Please read them carefully. Preliminary Requirements You or your spouse must have been a resident of Newfoundland and Labrador for at least one year before beginning the divorce application. Neither you nor your spouse may apply for divorce in Newfoundland and Labrador until one of you has been resident for at least one year. There should be no other divorce proceedings between you and your spouse pending in any other province in Canada. When the Court issues your Originating Application for divorce, it must also confirm that no other divorce action involving you and your spouse exists anywhere else in Canada. To do this, the Court contacts the Central Divorce Registry in Ottawa and requests a Clearance Certificate. The registry keeps records of all divorces in Canada. A court will not grant a judgment for divorce unless it has received a Clearance Certificate. Once the Court requests the Clearance Certificate, it will usually take 4-8 weeks to arrive. If another action exists, you cannot use this kit. You must have grounds or reasons for asking the court to grant a divorce. The Divorce Act provides that a court may grant a divorce if marriage breakdown has been established for any one of the following reasons: Living separate and apart for more than one year; or Adultery; or Physical or mental cruelty. To apply for a divorce based on separation, you and your spouse must have lived separate and apart for at least one year before applying for the Judgment for divorce. You may have the Originating Application for divorce issued before you have lived apart for the entire year, as long as you are living separate and apart when you issue the Originating Application. However, the Judgment for Divorce will not be granted before the year has passed. You may use this kit if you are applying for a divorce based on having lived separate and apart for one year. If you base your divorce on adultery or cruelty, you should see a lawyer because these - 2 -

4 grounds are sometimes more difficult to prove. This kit is not designed to assist you in these circumstances. One spouse may apply to the court by themselves for a divorce. There is a separate kit available for this type of application. In order to start your divorce action, you must first prove that you and your spouse are legally married. You will need a Marriage Certificate or a Certificate of Registration of Marriage from Vital Statistics. You must file your marriage certificate with the court when you issue your Originating Application for Divorce. If your marriage was performed in Newfoundland and Labrador, the Certificate of Registration of Marriage can be obtained in Newfoundland and Labrador from your local Service NL Government Service Centre. A list of Service Centres is available online at the Service NL website: The Service Centre will charge a $20.00 fee for obtaining a Certificate of Registration of Marriage. Your original marriage certificate must be in either of Canada s official languages, English or French. If your marriage certificate is written in a different language, you must provide a translation of the document, together with an affidavit verifying the translation. Completing the Forms All documents must be printed, typewritten or reproduced legibly on one side of good quality paper, 8.5 inches by 11 inches, with a margin of 1.25 inches on the left hand side. You may complete the forms provided in this kit. All of the forms in this kit can also be found on the Supreme Court website: If you prefer to fill out the form electronically, please note that you cannot file the forms online. After you have filled out the form electronically, you will need to print the completed form and go to a Court to file it. At the top of the first page of each form, you will fill in the location of the Court (i.e. the city where you are filing the documents) and the names of the parties. When spouses apply together in a Joint Originating Application, they are called Co-Applicants. The spouse that is listed as the first Co- Applicant should remain the first Co-Applicant throughout all of the documents. The spouse that is listed as the second Co-Applicant should remain the second Co-Applicant throughout all of the documents. After you file your Originating Application with the court, you will get a file number that you will then use on all future court documents. The staff at the Court cannot complete the forms for you. These instructions and the form templates are designed to provide you with the information you need to complete the application on your own

5 (1) Commencing Your Action Completing the Original Application for Divorce Form 56A.06A The Originating Application Form (Form 56A.06A) is included in this kit. If you prefer to fill out the form electronically, the form is available to download on the Supreme Court of Newfoundland and Labrador website: Please note that you cannot file the form online. After you have filled out the form electronically, you will need to print the completed form and go to a Court to file it. An Originating Application starts a court action for almost all family law proceedings. In any situation where someone is seeking a divorce in Newfoundland and Labrador, you will first need to prepare an Originating Application. If you have already had an Originating Application requesting divorce filed with the Court, you will not need to file a new Originating Application, and you can move ahead to the next step in this kit. All documents must be neat - typed or printed. Any deletions made on Court documents should be made with a ruler and initialed. If you are preparing the forms electronically, you may be able to delete the portions of the forms that do not apply. You should save the original documents before making such modifications. Notice to Respondent Originating Application This form notifies the Respondent that an originating application has been filed, and that if he/she wishes to contest the divorce petition, they have a window of time in which to do so. Since you and your spouse are applying jointly for a divorce, you do not have to provide notice to the Respondent. However, as an administrative step, you will need to fill out the names of the parties at the top of the page. Leave the court file number blank for now. When you file the Originating Application with the Court, the Court will give you a Court Number and a file number. Complete the top of the page of the Originating Application. Leave the court file number blank for now. When you file the Originating Application with the Court, they will give you the Court Number and a file number. When writing your names as the Co-Applicants, make sure that you include your first and any middle names exactly as they appear on the Marriage Certificate or the Certificate of Registration of Marriage. If you now use different names, you can list both names by including your current name in brackets after your previous name. Place an X in the box beside the Court you wish to have your matter to be heard. Note the corresponding location where you must file your documents

6 Paragraph 1: You must tell the court what relief you are asking for. An Originating Application can start court proceedings where a variety of different matters can be dealt with. This kit allows you to apply only for the court to grant you a divorce. Place an X in the box beside Divorce to show that this is the judgment you are asking the court to make. If you and your spouse have not resolved the other issues listed in this section of the Originating Application, you may not be able to use this kit. Paragraph 2: Paragraph 3: Paragraph 4: Paragraph 5: Paragraph 6: Paragraph 7: Paragraph 8: Paragraph 9: Select one of the following options: (a) living separate and apart for at least one year prior to the proceeding and at the time the proceeding commenced; or (b) since celebration of the marriage the Respondent has committed adultery or treated you with physical or mental cruelty. This kit is for situations where you anticipate filing for the final divorce judgment after being separated for a period of at least one year (option (a)). This ground for divorce is found in the Divorce Act at section 8(2)(a). You can find the Divorce Act online here: You do not have to add anything to this statement. Read this paragraph carefully. When you sign the Originating Application, you are confirming that this statement is true. You do not have to add anything to this statement. Read this paragraph carefully. When you sign the Originating Application, you are confirming that this statement is true. You do not have to add anything to this statement. Read this paragraph carefully. When you sign the Originating Application, you are confirming that this statement is true. Write your initials next to this statement. Fill out the particulars of your marriage as indicated. Circle this paragraph number if it is impossible or impractical to obtain a certificate or registration of marriage. If this is the case, you must also provide an explanation for why you are unable to obtain a certificate or registration of marriage. Fill out the particulars of you and your spouse as indicated. Fill out the particulars of any children as indicated. Paragraph 10: If any legal proceedings were started by you or your spouse with regard to the marriage, custody, access, support, maintenance, or division of family property, provide details of the proceedings. Be sure to include the date(s) and location(s) of the proceedings, whether any orders were made, and whether any proceedings are still pending. If there are no other proceedings, write none. If you have a separation agreement, attach the agreement to the Originating Application. Indicate in this paragraph that you have attached the separation agreement. Paragraph 11: Check the applicable box in this paragraph. You may request that the court decide child support issues. However, this kit is not designed to assist you with those issues. For most people completing this kit, they will not be making any of the claims that can be made in this section

7 Paragraph 12: You may make a claim for spousal support. However, this kit is not designed to assist you with those issues. Paragraph 13: You may make a claim for property division. However, this kit is not designed to assist you with those issues. Paragraph 14: You may make other claims. However, this kit is not designed to assist you with those issues. Note: The Court ensures that adequate arrangements have been made for the support of children. For a divorce, if you and your spouse have agreed to an amount below the amount set out in the Child Support Guidelines, the Court may not consider this amount to be adequate in the circumstances of your case. If so, the Court may refuse to grant the application until satisfied that adequate arrangements have been made for child support. To determine the amount of child support payable under the Child Support Guidelines, you can find further information here: When you are filing your Originating Application at the Court, the Court Officer will sign and seal the bottom of the first page of the Originating Application, and give you a file number to include on the top of the first page of the Originating Application. Signing the Originating Application Make at least 2 photocopies of the completed Originating Application. Both Co-Applicants must sign all three copies in front of legal counsel or a court official. Be sure to fill in the name of the city or town where you signed the Originating Application and the date on which you signed it. (2) Issuing the Originating Application After you have completed and signed the Originating Application and Financial Statement (if applicable), take three copies to the Court. A list of the addresses and contact information for all of the court locations in the province is included in this kit. The Court in St. John s is open to the public from 9:00 am to 5:00 pm, Monday to Friday. All of the other Courts in the province are open to the public from 8:30 am to 4:30 pm, Monday to Friday. In the summer (from the second week of June to the second week of September), the Court in St. John s is open from 9:00 am to 4:30 pm, Monday to Friday and all of the other Courts in the province are open from 8:30 am to 4:00 pm, Monday to Friday. REMEMBER to take your Certificate of Registration of Marriage or Marriage Certificate with you to Court. There is a $ fee for issuing the Originating Application for divorce. Payment for fees is accepted - 6 -

8 by cash, cheque, credit card, or debit. If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador. You may qualify to have these fees and/or other fees waived or reduced. You may apply to waive/reduce your fees if the fees would cause you undue hardship or prevent you from making your claim/defense. For instance, you may apply to waive your fees if you are receiving social assistance or income support. Please contact a Court near you if you wish to make an application to waive/reduce your fees. A Court Officer will issue your Originating Application if it is properly completed and you have all the required documents with you. The Court Officer will sign and seal one copy of the Originating Application; this copy remains with the Court. The original copy of the Originating Application and the original marriage certificate will be kept in the court file. A court file number will be assigned to your case. The court file number assigned to your case must be written on the true copies of the Originating Application. It must also be written on all documents you prepare in the future on this matter. (3) Applying for the Divorce Judgment While you are waiting for the Clearance Certificate to arrive, you may work on the documents required to apply for judgment. You will be completing three forms at this time: 1) Application for Judgment (Form 56A.24B); 2) Two Affidavits of Applicant/Respondent (Form 56A.24C); and 3) Judgment (Form 56A.46A). Completing the Application for Judgment (Uncontested Family Law Proceeding) Form 56A.24B The Application for Judgment Form (Form 56A.24B) is included in this kit. If you prefer to fill out the form electronically, the form is available to download on the Supreme Court of Newfoundland and Labrador website: Please note that you cannot file the form online. After you have filled out the form electronically, you will need to print the completed form and go to a Court to file it. Paragraph 1: Paragraph 2: Nothing needs to be added. Check the items you are claiming in your Judgment. This kit can only be used to apply for a divorce. Therefore, that should be the only item that is checked off

9 Paragraph 3: Paragraph 4: Paragraph 5: Check off all documents that are on the court file. For most people, this will be Originating Application, Marriage Registration, and Central Registry Notification. This paragraph does not apply where there is an uncontested divorce application. Write N/A and write your initials beside the paragraph. This paragraph does not apply where there is an uncontested divorce application. Write N/A and write your initials beside the paragraph. Both Co-Applicants must sign and date the Application. You will only need one copy of the Application for Judgment to file with the court. There is a $60.00 fee for issuing the Judgment. The fee is payable by cash, cheque, credit card, or debit (If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador). Note: If there are any children under the age of 19, please note that Rule 56A.32 of the Rules of the Supreme Court dictates that in a divorce proceeding where there are children but no claim is made for child support, the parties shall provide income information required by the Federal Child Support Guidelines. In most cases, the court will require you to have a written agreement outlining the support payments and you will also need to provide income tax notices of assessment from one or both parties. Furthermore, you will either need to have the payments set in accordance with the Federal Child Support Guideline tables, or you will need to explain why your agreed upon payments are appropriate in the Affidavit of Co-Applicant. Completing the Affidavits of Applicant/Respondent (Uncontested Family Law Proceeding) Form 56A.24C Two identical Affidavits of Applicant/Respondent (Form 56A.24C) are included in this kit. Each Co- Applicant is required to complete their own affidavit. If you prefer to fill out the form electronically, the form is available to download on the Supreme Court of Newfoundland and Labrador website: Please note that you cannot file the form online. After you have filled out the form electronically, you will need to print the completed form and go to a Court to file it. General Paragraph 1: Paragraph 2: Paragraph 3: Paragraph 4: Paragraph 5: Nothing needs to be added to this. Indicate whether other legal proceedings have been commenced. Check the applicable box. Nothing needs to be added to this. Indicate whether any circumstances have changed since your Originating Application was filed

10 Uncontested Divorce Matters Paragraph 6: Paragraph 7: Nothing needs to be added to this. Nothing needs to be added to this. Judgments Paragraph 8: Paragraph 9: Fill out your address information and the address information of your spouse. If you are seeking to effect an earlier date of divorce, fill out this section. Paragraph 10: If you are claiming legal costs, fill out this section. If you are claiming legal costs you should consult a lawyer. Do not sign your affidavit yet! You must sign your affidavit in front of a Commissioner of Oaths, Notary Public or Justice of the Peace. Before you sign your affidavit in front of that person, he/she will ask you whether or not you swear or affirm the contents of your affidavit to be true. The court staff are Commissioners of Oaths and you may swear or affirm your completed affidavit in front of them. This service is free. Remember to bring photo ID for this service. You can also find Commissioners of Oaths in law offices. You will likely have to pay for this service at those locations. Do not forget to point out any exhibits to the Commissioner of Oaths, Notary, or Justice of the Peace. They will have to sign the exhibits also. Note on Attaching Exhibits to Affidavits You may have some documents attached to your affidavit as exhibits. To make a document an exhibit, it must have the following words written or stamped on it, and completed by the Commissioner of Oaths who takes your oath when you swear the affidavit: The is Exhibit A to the affidavit of sworn before me at in the Province of Newfoundland and Labrador, this day of, A Commissioner of Oaths in and for the Province of Newfoundland and Labrador, Being a Court Official. If there is more than one exhibit to be attached to the affidavit, they should be marked as A, B, C, D, etc. You will need one copy of each Affidavit of Co-Applicant to file with the Court. Completing the Judgment for Divorce Form 56A.46A The form for Judgment (Form 56A.46A) is included in this kit. If you prefer to fill out the form electronically, the form is available to download on the Supreme Court - 9 -

11 of Newfoundland and Labrador website: Please note that you cannot file the form online. After you have filled out the form electronically, you will need to print the completed form and go to a Court to file it. Complete the information at the top of the document, but then leave the spaces for the name of the judge and the date of the judgment empty. Paragraph 1: Fill in your name, your spouse s name and the date of your marriage. The Court will provide you with copies of the Judgment for Divorce once it has been granted. (4) Certificate of Divorce Once the Certificate of Divorce (Form 56A.47A) has been completed, you may request an official copy of the Certificate of Divorce at the Court. You may also call the Court to request an official copy. There is a fee of $20.00 for the Certificate of Divorce, payable by cash, cheque, credit card, or debit (If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador). Please note that the Court does not issue the Certificate of Divorce automatically. You must contact the Court to request a copy of the Certificate of Divorce. REMEMBER: You may not remarry until the Judgment for Divorce takes effect 31 days after the day the Judgment was granted. (5) What if I have questions when I am using this kit? For any questions, you can contact the Court near you. Contact information for the Courts in Newfoundland and Labrador are included in this kit. You may also find answers to your questions by visiting the Supreme Court of Newfoundland and Labrador, Family Division website: On the website, you will find information on representing yourself in Court, Duty Counsel, and other family law topics. You will also find helpful links to family law legislation and links to the forms discussed in this kit. Be aware that the staff at the Court cannot give you legal advice or fill out your forms for you. Before you contact them, read this kit carefully from beginning to end

12 Checklist Read through the instructions in this kit. Obtain Marriage Certificate from Vital Statistics. Complete the Originating Application (Form 56A.06A) and sign it in front of a Commissioner of Oaths, Notary Public, or Justice of the Peace. Make 3 copies of the Originating Application. Take the following to a Court (addresses for Courts in Newfoundland and Labrador are included in this kit) Your Originating Application and 3 additional copies of your Originating Application Your marriage certificate Filing fee of $ (payable by cash, cheque, credit, or debit. If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador). Obtain a Clearance Certificate (usually 4-8 weeks). Complete and take the following to a Court: Application for Judgment (Form 56A.24B) 2 Affidavits of Applicant/Respondent (Form 56A.24C) (One from each co-applicant) Judgment (Form 56A.46A) Fee of $60.00, payable by cash, cheque, credit card, or debit (If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador). A judge reviews all of the documents in the court file. If everything is in order, the judge will grant the Judgment for Divorce. The Court Officer will add the judge s name and date on the Judgment and will send a copy to you. You may request a copy of the Certificate of Divorce 31 days after the date the judge grants the Judgment for Divorce by requesting a copy of the Certificate of Divorce from the Court (in person or over the phone). NOTE: If the Respondent files and serves an appeal within 31 days of the date on the Judgment for Divorce, you should consult a lawyer immediately. There is a fee of $20.00 for the Certificate of Divorce, payable by cash, cheque, credit card, or debit (If you are paying by cheque, please make the cheque payable to the Supreme Court of Newfoundland and Labrador)

13 Courts in Newfoundland and Labrador Court Address and Contact Information St. John s 21 King s Bridge Road St. John s, NL A1C 3K4 Tel: (709) Fax: (709) Regular Hours of Operation Monday to Friday 9:00 am to 5:00 pm Summer Hours of Operation (2 nd week of June to 2 nd week of September) Monday to Friday 9:00 am to 4:30 pm Gander 98 Airport Boulevard P.O. Box 2222 Gander, NL A1V 2N9 Tel: (709) Fax: (709) Monday to Friday 8:30 am to 4:30 pm Monday to Friday 8:30 am to 4:00 pm Grand Bank 69 Grandview Blvd P.O. Box 910 Grand Bank, NL A0E 1W0 Tel: (709) Fax: (709) Monday to Friday 8:30 am to 4:30 pm Monday to Friday 8:30 am to 4:00 pm Grand Falls-Windsor 3 Cromer Avenue Grand Falls-Windsor, NL A2A 1W9 Tel: (709) Fax: (709) Monday to Friday 8:30 am to 4:30 pm Monday to Friday 8:30 am to 4:00 pm Happy Valley-Goose Bay P.O. Box 3014, Stn. B Happy Valley-Goose Bay, NL A0P 1E0 Tel: (709) Fax: (709) Monday to Friday 8:30 am to 4:30 pm Monday to Friday 8:30 am to 4:00 pm Corner Brook 82 Mount Bernard Avenue Corner Brook, NL A2H 6J8 Tel: (709) Fax: (709) Monday to Friday 8:30 am to 4:30 pm Monday to Friday 8:30 am to 4:00 pm

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