"When does my divorce become effective? My fiancee and I are anxious to set a date for our wedding. And what happens after the divorce judgment has been entered?"
In Ontario, there is a waiting period of 31 days after the divorce judgment is granted before it becomes effective. (Similar provisions exist in the other provinces and territories.) This waiting period is intended to accommodate a party who believes the judgment is wrong and may need time to think about an appeal. The length of the waiting period is determined by the time for appealing, which is 30 days from the date of judgment. If a notice of appeal is served on the other party within the 30 days, the question of whether the parties are properly divorced, and therefore free to marry, cannot be known until the Court of Appeal has held a hearing and given its answer. This may be several months away. However, if no notice of appeal is served in time, all rights to appeal are lost and the divorce judgment, standing unquestioned for 30 days, is deemed correct. On the 31st day, a certificate of divorce showing the divorce is effective can be obtained from the court.
But can anything be done if one of the parties wants to marry before the 31 days are up? Yes, if the parties to the divorce are both willing to shorten the waiting time and deal with the right of appeal. Both of them must consent in writing to the shorter time (or dispense with the waiting time altogether) and undertake, also in writing, not to appeal. This consent and undertaking is filed with the court at the time the application to shorten or dispense with the waiting period is made. It may be made at the time the original divorce judgment is granted or at a later time.
What happens after the judgment is entered? The court sends copies of the judgment to the parties; the judgment contains a notation of the date it becomes effective. (Where no application has been made to shorten or dispense with the waiting time, the effective date shown will be 31 days after the date of the judgment.) On or after the effective date, either party may apply to the court for a Certificate of Divorce, which confirms that the parties are free to marry.
James C. MacDonald, Q.C., is a retired partner in the family law practice of MacDonald & Partners in Toronto. He was the first recipient of the Canadian Bar Association's Award for Excellence in Family Law.
Certified Divorce Financial Analyst
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