If you are considering getting a divorce, New Brunswick is rightly the best place to file for divorce in Canada. Its family law constitution is perhaps one of the most progressive in the country and its court procedures are on par with anywhere else. Without further ado, here is a brief rundown of what you need to know about filing for divorce in New Brunswick.
New Brunswick’s Family Laws
New Brunswick divides itself into two regions: one that contains Moncton and Dieppe, and another that encompasses all of mainland New Brunswick (the latter also includes southeastern Quebec). Both of these are referred to as regions #1 and #2, respectively. As a general rule, you should file in whichever of the two regions you live in.
The divorce process can be initiated by either party. If the couple has been separated for at least one year (or if one spouse is “unreasonably” refusing to cohabitate), then the initiator can file for divorce. A separation agreement between spouses is not necessary for a divorce to commence. However, if such an agreement does exist, then it will be enforced by the court instead of going through the regular separation and division of assets procedures (see below).
In the case of a separation agreement being filed, if one spouse is to be awarded custody of any children (under 18) and if it is deemed that the other spouse cannot provide adequate care and support, then the court will legally force that spouse to pay child support. The amount paid will depend on the income of the paying parent.
The courts in New Brunswick are generally very lax when it comes to enforcing child support payments. One reason for this is because they do not want divorced parents to enter and exit relationships with each other just so they can obtain custody or non-custody orders, respectively. This is an effective way for parents to manipulate the system where all parties wind up benefiting, but with a lot of collateral damage (including the children). The courts therefore take a very compassionate approach and simply do not enforce custody or child support in these cases, unless one spouse files and obtains an order.
The Divorce Process
Once you’ve determined that it’s appropriate for you to file for divorce in New Brunswick, the next step is to determine how long it will take. The general rule is that if you have been separated for one year at least and your marriage has lasted at least three years, then you should be able to obtain a divorce in as little as six months.
Even if you are not able to meet these two criteria, you should still have your divorce finalized within one year. This depends on how busy the courts are, what their backlog is and whether judges have time to hear your case.
All divorces in New Brunswick (including ones initiated by the courts) will go before a judge first; even if it’s just for a preliminary hearing. At this point, the judge will probably schedule a trial date within six months’ time or so. Once you receive notice of the trial date, this means that your divorce should be finalized in less than one year unless there is some unexpected development (such as an appeal).
Custody and Support
If you are awarded custody, the court will enforce child support payments. If you are not awarded custody, then you can still get child support orders. However, such orders will be enforced much more leniently than if the case went to trial first. In non-custodial cases, the court will generally only enforce child support orders when one spouse can provide adequate care and support by itself. As previously mentioned, this is often not the case if parents have a separation agreement where only one spouse is funding their own expenses. Therefore, it is often in the best interest of a non-custodial parent to go through the divorce court process first to ensure that child support is not enforced.
Although child support orders are very lenient in their enforcement, they can still be used as leverage by one spouse against the other. For example, if one spouse pays up on the full amount of a support order but deliberately withholds some or all of it from the other spouse, it’s possible that the judge will order such withholding to stop.
At this point, you need to look at any agreements that you have made and make sure they are enforceable according to what is stipulated in them (see above). If there’s nothing in your agreement and if a court is able to enforce a support order, then the court will look at your income and calculate the level of support. The parent with less income will normally pay more of this support. The amount depends on how much money each parent earns (in addition to other factors such as whether or not they worked while they were married).
Once you have come to an agreement, it is also important that you get it properly in writing. You’ll need a lawyer to help you with this, but it’s well worth the initial money outlay required because it can save you thousands in the long run if circumstances turn sour later on.
If you are awarded custody, then you will be able to modify the child support order. However, if you are not awarded custody, then there is no way that a court can modify child support orders without the consent of both parents (lawyers will be able to help with this as well). Also, if you are awarded custody, then the court may be willing to enforce any past due payments granted previously by either parent (including non-payment), provided that there is a good reason why these have not been paid.
See also: New Brunswick Court Forms.
Name Change
If you are going to divorce in New Brunswick, then this means you will be getting a divorce. Since a divorce is finalized, you will receive a piece of paper that has the word “divorce” written on it and your married name will appear as an ex-spouse. Thus, you need to think about what you are going to call yourself once you are divorced from your spouse; otherwise you may cause some confusion among those around you who may assume that your marriage is still intact. New Brunswick’s Family Law Act says that you do not have to change your name when married in New Brunswick. However, it is not unheard of for people to change their names. If you are going to be married in New Brunswick and you want to keep your last name, then this can still be done, although there is a fee for doing so (which usually ranges from $65-$150).
Changing one’s last name in New Brunswick
(If there are any errors or omissions, please let me know and I will update the current version)
Who can get a divorce?
The Family Law Act gives the courts jurisdiction over any contract entered into by two spouses or two former spouses after marriage. The only exceptions are:
(a) where the contract is entered into by an unmarried person or a person who has not yet attained 18 years of age, or where it concerns the estate of an individual who has died; and
(b) where any one of the parties to the contract or either party to any proceedings under that contract, has a spouse living at the time for whom a divorce decree is sought.
In such circumstances, the court may decline jurisdiction of other provisions in that contract. When deciding whether to exercise such jurisdiction, the court shall take into consideration any relevant statutory and common law considerations, including matters concerning fairness between spouses (T.C.R.R. 43/2000).
Notice of Intent to File for Divorce
To start the divorce process, you need to file a Notice of Intent to File for Divorce. This form is provided by the clerk at the court house and you will need to fill it in and submit it to the Court Registry. A copy of this form must be served on your spouse or former spouse, no later than five days after filing it with the court (T.C.R.R 43(2)). A sample Notice of Intent is included here.
If you and your spouse are not able to agree on the divorce, then you will need to file a Notice of Seeking Disclosure. This form is provided by the clerk at the Court Registry and you will need to fill it in and submit it to the Court Registry. A copy of this form must be served on your spouse or former spouse, no later than five days after filing it with the court (T.C.R.R 43(3)). A sample Notice of Seeking Disclosure is included here.
If you want a divorce without any sort of agreement from your spouse, then you will have to wait until one year has passed for an uncontested divorce and two years for an undeferred divorce (see below).
Contested Divorce
If you and your spouse are unable to agree on the divorce, then you will first have to go before a Family Law Court. There are three types of contested divorces: uncontested, undeferred or deferred (see below).
Uncontested Divorce
If no agreement has been reached between you and your spouse after a period of six months, then you can file an “Uncontested” divorce. An uncontested divorce involves only the two adults in the case (i.e., husband and wife) and is based on a process that is similar to that followed in civil cases.a contested divorce, the spouses will have to pass through a court process. During this process you and your spouse will need to appear before the court and go through mediation unless otherwise ordered by the judge (see below). The decision of the court makes binding decisions on all matters relating to the property, custody, support and time with child.
The other requirements are:
Any consent orders or separation agreements between you and your spouse must be filed with the Court Registry at least seven days before your scheduled hearing date; as well as any relevant documentation (i.e. a letter from the court granting you a divorce, medical reports, etc.); and Each spouse must be represented by legal counsel at all times.
If these requirements are met, then the hearing will take place within 28 days of filing your paperwork. If the hearing is not completed within 28 days, then a new time will be set by the court (see below).
Uncontested Divorce – Through Mediation
Sometimes an uncontested divorce may become an uncontested divorce through mediation. In this case, that means that you pass through this process before getting a trial date and it will save you some money (if one is required). Before you can pass through mediation, you and your spouse must sign a Consent Order. The Consent Order lays out the terms of settlement between you and your spouse. The terms of settlement do not have to be agreed upon by everyone involved, but only by both parties if they are able to agree on those terms. After signing this Consent Order, both parties will go before a mediator and try to reach an agreement on the issues that are listed in this document. The specific issues include:
(a) How custody will be divided.
(b) What either party will pay for each child’s support.
(c) How much spousal support, if any, will be paid to the non-custodial parent.
(d) What claims and counter-claims, if any, have been made by either party against the other; as well as what other orders have been made or may be made by the Court in relation to any such claims or counter-claims.
(e) The division of property and debt between the parties.
If an agreement is reached then this becomes a court order and is recorded in the court register. If an agreement is not reached, then the case will go before a judge for a trial date (see below).
Undeferred Divorce
An undeferred divorce involves a divorce having to be granted within two years of it being filed. If both spouses do not agree on terms, then the Court can decide for you. The court will set a date for hearing and you will be required to attend this hearing. In an undeferred divorce, the parties are required to be represented by counsel at all times. If you or your spouse do not appear on the trial date, then your case will be dismissed (T.C.R.R 44(2)).
The other requirements to apply for an undeferred divorce are:
A person applying for such a divorce must be of sound mind, at least eighteen years of age, and must not be under guardianship; as well as The word “undeferred” is written in the margin next to the division number on the application for divorce; and No order for payment of support money or any other judicial order is in effect that requires payments between you and your estranged spouse.
Conclusion
Getting a divorce is a difficult process and can be very complicated. It is important to understand what each type of divorce entails, when ordering one through the Court Registry, and how to prepare yourself for it. If you have any questions, you should consult with a family law lawyer.
