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Free information about divorce in Canada

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Free information about Divorce in Canada

General information follows.

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

  1. What rules govern Divorce in Canada?

  2. Who can apply for a divorce in Canada?

  3. What is the difference between separation and divorce?

  4. What if I try to live with my spouse again after we separated?

  5. What if we were never legally married?

  6. Fault v. No-Fault Divorce

  7. How do I file for divorce in Canada?

  8. Uncontested Divorce in Canada

  9. Uncontested v. Joint Divorce in Canada

  10. What happens if we can't agree on all of our issues?

  11. 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

If you are ready to file an uncontested divorce in Ontario,
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Last updated on July 15, 2017