Gavin Howe
Divorce in Canada is governed by the Divorce Act, a federal law that applies when a married couple has requested a divorce or has already divorced in Canada. The Act outlines the conditions for obtaining a divorce, such as requiring individuals to demonstrate a breakdown in their marriage, and addresses issues like child support, spousal support, and parenting arrangements. While the Divorce Act sets the framework, each province and territory has its own processes and forms for divorce applications, and provincial or territorial laws may also apply to certain aspects, such as the division of marital property. This complexity often leads individuals to seek legal advice from family lawyers or referral services.
| Characteristics | Values |
|---|---|
| Who can get a divorce in Canada? | Canadian residents or those married in Canada |
| Who cannot get a divorce in Canada? | Non-residents, unless they meet specific criteria under the Civil Marriage Act |
| What is the primary law governing divorce in Canada? | The Divorce Act (French: Loi sur le divorce) |
| What are the grounds for divorce? | Breakdown of marriage due to separation, adultery, or physical/mental cruelty |
| What is the process of applying for divorce? | Submit an application to a court in the province/territory of residence, with specific forms and procedures varying by region |
| Are lawyers required for divorce applications? | No, but legal advice is recommended due to the complexity of family law |
| What issues are addressed in divorce proceedings? | Child support, spousal support, parenting arrangements, and property division |
| Are foreign divorces recognized in Canada? | Yes, if granted under circumstances conforming to Canadian rules relating to domicile and residence |
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What You'll Learn
Who can apply for divorce
To apply for divorce in Canada, you must be a Canadian resident. If neither you nor your spouse lives in Canada, you cannot get a divorce under Canada's Divorce Act. However, in limited circumstances, you may be able to end your marriage under the Civil Marriage Act if you meet certain criteria. For example, if your marriage is not recognised in the country where you or your spouse lives, you may be able to apply to a Superior Court in the province or territory where you were married to end your marriage.
To get a divorce under the Divorce Act, you must submit an application to a court in the province or territory where you or your spouse resides. Divorce application forms and procedures vary from one province to another, and you will need to follow the rules of the court that processes your divorce. You may also have to pay an application fee. It is always a good idea to get legal advice before you apply, and your province or territory may have a lawyer referral service that can refer you to a family law lawyer.
To get a divorce, you must show that your marriage has broken down in one of three ways: you and your spouse have separated and have lived apart for at least one year; your spouse has been physically or mentally cruel to you; or your spouse has committed adultery. If you apply for divorce on the basis of a one-year separation, you can live together for up to 90 days to try to reconcile. If you do reconcile, you can withdraw your application. If you apply for divorce on the basis of cruelty or adultery, you can apply at any time.
Only married couples can get a divorce, and only a court can grant a divorce. Once the process is finished, a court will issue a divorce certificate proving that you are no longer married.
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Grounds for divorce
Canada has a no-fault divorce system, which means that the reasons for marriage breakdown are not considered by the court when addressing issues like parenting orders and support. The Divorce Act, a federal law, specifies that the only ground for divorce is the breakdown of the marriage. This can be demonstrated in the following ways:
Living Apart
The most common ground for divorce in Canada is separation for one year. This does not necessarily mean living in separate residences; couples can be considered separated while living under the same roof if they can demonstrate that they are living separate lives and no longer function as a married couple. Indicators include a lack of intimate activities, maintaining different schedules, and not presenting themselves as a couple to the community.
Adultery
Adultery is another ground for divorce, defined as voluntary sexual intercourse between a married person and someone other than their spouse. Proving adultery can be complex and often requires evidence such as text messages, photos, or an affidavit from the person who committed adultery. It is important to note that if the adultery is forgiven or if the couple continues to live together after the incident, it cannot be used as a ground for divorce.
Physical or Mental Cruelty
Physical cruelty refers to physically harming a person, while mental cruelty means hurting someone in a way that is not physical. For cruelty to be used as a ground for divorce, the acts of cruelty must make it intolerable for the victim to continue living with the other spouse.
It is important to note that only the spouse who was mistreated can use cruelty as a reason for divorce. Additionally, if the spouse who was mistreated forgives the other spouse, cruelty cannot be used as a ground for divorce.
While the Divorce Act provides the grounds for divorce, the provinces and territories are responsible for the processes for getting a divorce. To get a divorce, you need to submit an application to a court in the province or territory where you or your spouse resides. Divorce application forms and procedures vary across the country. It is recommended that individuals seek legal advice from a family law lawyer, as family law can be complex.
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Divorce process
In Canada, divorce is the legal process that a married couple must go through to end a marriage. Only married couples can get a divorce, and only a court can grant a divorce. The Divorce Act is a federal law, but each province and territory has its own set of rules and forms for getting a divorce.
To get a divorce in Canada, you need to submit an application to a court in the province or territory where you or your spouse resides. Divorce application forms and procedures vary from one province to another. You can apply at any time if you are claiming your marriage has broken down due to adultery or physical/mental cruelty. If you have been separated for a year or more, you can apply for divorce on this basis, and you can live together for up to 90 days to attempt a reconciliation without restarting the one-year clock.
It is always a good idea to get legal advice before applying for a divorce. A lawyer can explain your rights and responsibilities, and what other documents you may need to give the court. While you do not need a lawyer to apply for divorce, family law is complex, and it may be beneficial to have legal representation to ensure your rights are protected. Provincial or territorial bar associations offer Lawyer Referral Services, and you can also start your case online or via email consultation.
Once the divorce process is finished, a court will issue a divorce certificate, and you are no longer married.
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Child support and custody
Child Support:
The Divorce Act, a federal law in Canada, addresses issues pertaining to child support in divorce cases. It is preferable for parents to mutually agree on child support arrangements. However, if parents cannot reach a consensus, the court can intervene and make orders regarding child support as part of the divorce proceedings. The court will only grant a divorce if it is satisfied that reasonable child support arrangements are in place for any children involved.
Child Custody:
In addition to child support, the Divorce Act also covers parenting arrangements, which include child custody and visitation rights. While it is ideal for parents to agree on these matters, the court can also make decisions regarding parenting arrangements if necessary.
Provincial and Territorial Variations:
It is important to note that while the Divorce Act provides a federal framework, each province and territory in Canada has its own set of laws and procedures for divorce. These laws may differ slightly from the Divorce Act and influence how child support and custody are determined and enforced. Therefore, it is essential to refer to the specific laws and procedures of the relevant province or territory when dealing with divorce, child support, and custody issues.
Legal Representation:
Given the complexity of family law in Canada, it is advisable to seek legal advice from a qualified lawyer, particularly when matters of child support and custody are involved. A lawyer can help navigate the specific provincial or territorial laws and ensure that the rights and interests of all parties, especially those of the children, are protected.
In summary, while the Divorce Act sets out the overarching framework for divorce in Canada, child support, and custody matters are often influenced by provincial and territorial laws. Seeking legal advice can help ensure that parents understand their rights and responsibilities, make informed decisions, and reach resolutions that prioritise the best interests of their children.
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Division of property
Canada's Constitution gives each province and territory the responsibility for laws regarding the division and/or equalisation of family or marital property. While the equal division principle provides a foundational framework, the specific rules and exceptions in each province necessitate careful consideration and often, professional guidance.
For example, in Quebec, two sets of rules govern the division of property: family patrimony and matrimonial regime. If you did not sign a marriage contract stipulating how your property will be divided in the event of a divorce, the default legal matrimonial regime, or "legal matrimonial regime," applies. For spouses married after July 1, 1970, this is the "partnership of acquests," and for those married before that date, it is the "community of property." If one or both spouses were domiciled outside Quebec at the time of the marriage, a foreign matrimonial regime may apply.
In Ontario, there are no exemptions for the matrimonial home, meaning it must be divided equally. In contrast, Alberta's legislation allows for certain exemptions, providing more flexibility in how the matrimonial home is treated. Alberta also treats negative net worth as it is, impacting the division outcome more directly. This can significantly affect the financial implications of a divorce, so it is crucial for individuals to understand their province's specific rules.
In British Columbia, legislation now considers the best interests of pets during property division, treating them more like family members than property. This progressive approach reflects a shift in societal values, recognising the emotional bond between people and their pets.
It is important to note that conduct during the marriage and the reason for its dissolution are not relevant to the division of property. Canada has a "no-fault" divorce system, meaning that the court will not consider conduct within the marriage when making decisions.
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Frequently asked questions
The only ground for divorce in Canada is marriage breakdown, which can be demonstrated by the couple living apart for at least one year, or the presence of physical or mental cruelty or adultery.
The Divorce Act is the federal Act that governs divorce in Canada. It is a federal law, but each province and territory has its own processes for getting a divorce.
Only Canadian residents can get divorced in Canada. If neither spouse lives in Canada, they cannot get a divorce under the Divorce Act, but they may be able to end their marriage under the Civil Marriage Act if they meet certain criteria.
