General information
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Skip to general information about:
Divorce in
Canada and Children/Child Custody & Support
Divorce in Canada and
Spousal Support and Property Equalization
Divorce in
Canada and going to court and alternatives
GENERAL
-
What rules govern Divorce in
Canada?
-
Who can apply for a
divorce in Canada?
-
What
is the difference between separation and divorce?
-
What if I try to
live with my spouse again after we separated?
-
What
if we were never legally married?
-
Fault v. No-Fault Divorce
-
How do I file for
divorce in Canada?
-
Uncontested Divorce in
Canada
-
Uncontested v.
Joint Divorce in Canada
-
What happens if we can't
agree on all of our issues?
-
What if I have issues that
can't wait?
What
rules govern Divorce in Canada?
Divorce in Canada is governed by
the
Divorce Act.
To get a divorce in
Canada, you will have to show that your marriage has broken down. The
law says marriage breakdown has occurred if:
-
you and your spouse
have lived separate and apart for one year with the idea that your
marriage is over*; or
-
your spouse has
committed adultery (had sexual intercourse with someone else) and
you have not forgiven your spouse; or
-
your spouse has been
physically or mentally cruel to you, making it unbearable to
continue living together. Cruelty may include acts of physical
violence and those causing severe mental anguish.
*Most divorces in Canada
are based on one year separation. Note that 'living separate and apart'
does not necessarily mean living in separate homes - you can be
separated but share the same home for various reasons (children, money,
etc.). For example, let's say that your spouse moved out of the house
three months ago. However, your marriage actually broke down and was
essentially over nine months ago. Your actual date of separation may be
nine months ago, rather than three months ago.
Who can apply for a divorce in Canada?
You can apply for a
divorce if:
-
you were legally married in Canada
or in any other country;
-
you intend to separate permanently
from your spouse and believe there is no chance you will get back
together, or you have already left your spouse and do not intend to
get back together; and
-
if either or both
of you have lived in a Canadian province or territory for at
least one year immediately before applying for a
divorce.
You do not
have to be a Canadian citizen to apply for a divorce in Canada.
What
is the difference between separation and divorce?
Separation occurs when one or both spouses decide to live apart with the
intention of ending their marriage. Once you are separated, you may need
to deal with your spouse in relation to issues concerning any children
you have, such as custody and child support, and you may also need to
work out issues dealing with spousal support and property. You can
resolve these issues in different ways:
You can
negotiate a separation agreement. A separation agreement is a legal
document signed by both spouses which details the arrangements you have
agreed on. In some jurisdictions, independent legal advice is required
to make the document legally binding.
You can
make an application to the court to set up custody, support and property
arrangements under the laws in the province or territory.
You can
come to an informal agreement with your spouse. However, if one party
decides not to honour the agreement, you will have no legal protection.
Click
here to learn more about
legal separation in Canada.
To
legally end your marriage, you need a divorce, which is an order signed
by a judge under the federal law called the Divorce Act.
What if I try to
live with my spouse again after we separated?
You can live together for
up to 90 days for the purposes of reconciliation. If things don't work
out, you can continue your action for a divorce as if you had not spent
this time together. If you live together for more than 90 days and
separate again, the second separation will be your new date of
separation (the 'year-clock' starts over at that point).
Click
here
to learn more about
Separation and separation agreements.
What
if we were never legally married?
If you
are not legally married, divorce does not apply to you. However,
you can still negotiate a separation agreement or make an application to
the court under the laws in your province or territory to set up
custody, child support and other arrangements. Common-law spouses have
fewer rights upon separation than married couples. For more information
on the rights of common-law spouses, contact a lawyer or obtain a
provincial or territorial publication.
Fault v. No-Fault
Divorce
Under the Divorce Act,
you do not need to prove that your spouse was at fault in order
to get a divorce in Canada. If the reason you are asking for a divorce
is breakdown of your marriage, shown by one year of separation, either
of you can request a divorce. It does not matter which one of you
decided to leave. In fact, the law gives you the choice of applying to
the court together to ask for a divorce (a 'joint divorce').
However, if the reason
you are asking for a divorce is marriage breakdown because of adultery
or mental or physical cruelty, you will have to have proof of what
happened.
How do I file for
divorce in Canada?
It is always advisable
when filing for divorce to speak to a lawyer knowledgeable about family
law. A divorce lawyer can tell you exactly how the law applies to your
situation and how to protect your rights. You can then decide what to
do.
To start a divorce
application, you fill out the appropriate forms for your province or
territory. Click
here
for information about
Divorce in Ontario.
If you have a lawyer, he or she will fill out the forms for you and will
be responsible for processing the divorce. You may obtain forms at
government bookstores, some private bookstores and, in some cases, via
the
Internet. In some
jurisdictions, court offices and family law information centres provide
divorce forms.
There are a few things in
particular that you have to include in the forms. If there is a child of
the marriage, you need to write down the parenting arrangements,
including financial support. If these arrangements are in dispute, you
will need to describe the arrangements that you are seeking.
Once you have completed
all the forms, you file them at the courthouse, pay the required court
fees, and follow the court rules and procedures for your province or
territory.
Uncontested Divorce
in Canada
What happens if my spouse
and I agree on all the issues raised by the divorce?
If you and your spouse
agree on all issues, you have an uncontested divorce.
In most provinces and territories, court officials process uncontested
divorces and you do not have to appear in court.
Note that you cannot file
an 'uncontested divorce' - the divorce becomes 'uncontested' only after
your spouse has been served (given a copy of the filed Application for
Divorce) and he or she does not respond by filing an Answer within the
required time period. If he or she does not file an Answer, the divorce
becomes 'uncontested'.
Uncontested v.
Joint Divorce in Canada
As mentioned above, an
'uncontested divorce' is a regular divorce that your spouse does not
contest because he or she agrees with what you are asking for. A 'joint
divorce' is where both spouses file for divorce together. With this type of
divorce, both husband and wife sign and swear the divorce papers.
Neither spouse is suing the other for divorce - you are telling the
court that you both want the divorce.
Contested Divorce
in Canada
What happens if we can't
agree on all of our issues?
If you and your spouse
cannot agree on one or more terms of the divorce, such as the child's
residential schedule, child support, or spousal support, you have a
contested divorce. You and your spouse must both submit court documents
about the issues you can't agree on. The provincial or territorial court
rules specify the steps you must take in order to resolve or clarify the
issues before a trial takes place. These steps often take a considerable
amount of time.
Once all of the steps
have been completed, your divorce proceedings will be set down for
trial. During the trial, you will explain your case to the judge. You
may also bring witnesses to help you to prove your case. The judge will
make a final decision about the issues you and your spouse can't agree
on. At any time during the divorce proceedings and even after you submit
the court documents, you can still try to reach an agreement with your
spouse on these issues, and negotiate further with the help of lawyers
or work with a mediator.
About 90 percent of cases
are settled before trial. However, there are often months of
negotiations and many low moments before settlement.
The last step of the
process is for a judge to review all of the information you have
submitted, either on your application form or in the trial, to make sure
you have met all the legal requirements for a divorce. The judge grants
the divorce and sets out his or her decision on any issues that need to
be resolved in a divorce judgment or divorce order. This judgment or
order normally becomes final 31 days after the judge signs it. Once the
judgment is final, you can apply for a Certificate of Divorce. You must
have a Certificate of Divorce to get married again in Canada.
What if I have issues
that can't wait?
A Certificate of Divorce
is legal proof that you are no longer married.
When you apply for a
divorce, you may request that a judge deal with certain issues right
away.
These issues include
short-term parenting arrangements for your child, child support and
spousal support. The judge issues an interim or temporary order that
stays in place until the judge varies it or makes a final order at
trial.
GO TO GENERAL
INFORMATION ABOUT:
Divorce in Canada and Children/Child Support
Divorce in Canada and
Spousal Support and Property Equalization
Divorce in Canada
and going to court and alternatives
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