Divorce Without a Court Hearing in Nova Scotia When You Agree

If you and your spouse have settled the big questions, you may be wondering whether you really have to stand in a courtroom to end the marriage. In many agreed cases, you do not.

This article explains how an agreed divorce can be decided on paper in Nova Scotia, what the court still needs to be satisfied of, and what your options are if a few issues remain open.

This article covers the law of Nova Scotia.

Where divorces are heard and which forms apply

Divorces in Nova Scotia are heard in the Supreme Court of Nova Scotia (Family Division). Since January 1, 2022, family law matters in the province are handled under Rule 59 of the Civil Procedure Rules. Older guides saying the Family Court handles other matters but not divorces reflect the earlier setup, and divorces belong to the Supreme Court.

The Family Division has different divorce forms depending on how you proceed:

When a judge can decide on paper

Under a joint application where the spouses agree on all issues, the file can go to a judge without a hearing. That is the main way an agreed divorce avoids court appearances.

The Family Division also has practice memorandum forms for divorce, including FD 12 (Affidavit Supporting an Uncontested Divorce - Application), FD 12A (Joint Application), FD 12B (Petition) and FD 10 (Request for Date Assignment Conference - Divorce). The court's web versions are unofficial, and the Civil Procedure Rules Part 22 forms are the official ones. Which forms fit your situation depends on your facts, so confirm this before you file.

What you still have to show

Agreeing does not remove the legal requirements. A court may grant a divorce on the sole ground that the marriage has broken down. The usual way to show that is one year living separate and apart immediately before the divorce proceeding is determined, with the spouses already living apart when it started.

• One spouse's intention is enough: spouses are deemed to have lived separate and apart for any period when they lived apart and either of them intended to.
• Trying again does not necessarily reset the clock: the year is not interrupted just because you resumed living together for no more than 90 days in total, where the main purpose was a reconciliation attempt.
• Waiting a year is not required if the other spouse has committed adultery or treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.
• The court must also satisfy itself that there has been no collusion in relation to the application.

Whether your particular living arrangements count as separate and apart can be a detailed question, especially if you still share a home, so it is worth getting advice.

If some issues are still open

If you have not settled everything, the court offers its own tools. Conciliation involves a court officer meeting the parties to identify issues and explore settlement, and it is mandatory in some courts for certain applications. Mediation uses a neutral mediator who cannot make orders, and court referral generally needs an active application. Judge-led settlement conferences are voluntary.

If your application involves children, the Parent Information Program is mandatory once a court application involving children is filed in the Family Division, although parents can also attend voluntarily.

Contrast this with a contested petition. On a petition for divorce, the respondent's time to respond is 15 days if served in Nova Scotia, 30 days elsewhere in Canada, and 45 days anywhere else.

When the divorce takes effect and what to do next

A divorce takes effect on the 31st day after the judgment granting it is rendered. The court's divorce certificate is issued only after the divorce is granted and the appeal period has passed. Do not assume you are free to remarry until then.

• Write down your separation date and any periods of living together again.
• Confirm in writing that you and your spouse agree on parenting, support and property.
• Ask a lawyer to review your agreement before you sign or file.
• Choose the form that fits your situation, such as the joint application or the application by agreement, and confirm with a lawyer which supporting documents you need.
• Plan for the Parent Information Program if children are involved.

Frequently asked questions