Cameron Miranda
Canada's Divorce Act is the federal law that governs divorce in the country. The Act outlines the conditions for getting a divorce and addresses issues such as child support, spousal support, and parenting arrangements. To get a divorce in Canada, you must submit an application to a court in the province or territory where you or your spouse resides. Divorce laws in Canada include no-fault divorce, requiring you to demonstrate a breakdown in your marriage, which can mean a year-long separation, abuse, or adultery. If children are involved, you must provide details about parenting, custody, and support. A court will only grant a divorce if it is satisfied that reasonable child support arrangements have been made.
| Characteristics | Values |
|---|---|
| Who can get a divorce? | Only married couples can get a divorce. If neither spouse lives in Canada, you cannot get a divorce under the Divorce Act, but you may be able to end your marriage under the Civil Marriage Act if you meet certain criteria. |
| Who grants a divorce? | Only a court can grant a divorce. |
| What is the process? | The process begins with the decision to divorce and separate from your partner. Then, you obtain the application for divorce appropriate to your province or territory and determine the grounds for filing (no-fault or for fault). If children are involved, you provide details about your agreement for parenting, custody, and support. You then file your application at the courthouse in your province or territory, or through your lawyer. |
| What are the grounds for divorce? | A no-fault divorce requires that you and your spouse complete a 1-year separation period, which can be a result of abuse or adultery. A fault divorce can be claimed on grounds such as adultery or physical or mental cruelty. |
| What is the Divorce Act? | The Divorce Act is the federal Act that governs divorce in Canada. It establishes a uniform divorce law across Canada. |
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What You'll Learn
Divorce Act and federal law
The Divorce Act (French: Loi sur le divorce) is the federal Act that governs divorce in Canada. The Constitution of Canada grants the federal Parliament exclusive jurisdiction to regulate the law of marriage and divorce.
Before 1968, there was no uniform federal divorce law in Canada. Instead, there was a patchwork of divorce laws in the different provinces, depending on the laws in force in each province at the time it joined Confederation. In the three Maritime provinces, divorce was governed by laws enacted by the colonial governments prior to Confederation in 1867 (in Nova Scotia from 1758, in New Brunswick from 1791, and in Prince Edward Island from 1833). In the three prairie provinces and the northern territories, divorce was available under the English Matrimonial Causes Act 1857, which was incorporated into their local law in 1870 under the terms of the Rupert's Land Act.
In 1963, the Senate of Canada was given the power to dispose of parliamentary divorce petitions by way of resolution instead of by a private Act. In 1968, Parliament passed its first Divorce Act, establishing a uniform divorce law across Canada. In 1986, Parliament replaced the Act, simplifying the law of divorce further. The 1986 amendments specified that an application for divorce could be initiated by either spouse or both of them jointly. The breakdown of the marriage was specified as the sole ground for divorce, as evidenced by the spouses living separate and apart for one year prior to the divorce proceedings, adultery, or physical or mental cruelty. Domicile was no longer required, and a court had jurisdiction where one of the spouses had been resident in the province for at least one year before the proceedings.
The Divorce Act is the federal law that applies when a married couple has requested a divorce or has already divorced in Canada. It sets out the conditions for getting a divorce and addresses issues such as child support, spousal support, and parenting arrangements for children in divorce cases. Provincial or territorial laws may also apply to some issues, such as the division of marital property. A court can only grant a divorce if it is satisfied that reasonable child support arrangements have been made for any children of the marriage. The divorce becomes effective 31 days after the judgment granting it, provided that it is not under appeal.
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Grounds for divorce
To apply for a divorce in Canada, you must submit an application to a family court in the province or territory where you or your spouse resides. Divorce application forms and procedures vary from one province to another, and there are certain criteria that must be met before you can file for divorce. Firstly, you and your spouse must be legally married under Canadian law. If you were married in another country, your marriage must be recognised in Canada. Secondly, you and your spouse must have lived in the province or territory where you are applying for divorce for at least a year before your application.
In addition to the above, there are other circumstances that may evidence a breakdown of marriage. These include the imprisonment of one spouse, an addiction, the disappearance of one spouse, or the inability or refusal to consummate the marriage.
It is important to note that divorce is a legal process that only married couples can go through to end their marriage. A court will issue a divorce certificate once the process is finished, and the divorce will take effect 31 days after the judge grants it.
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Child support and custody
Child custody and support are often the biggest concerns for couples during a divorce. In Canada, child custody laws can vary depending on the province or territory. While some provinces have enacted legislation that defines custody jurisdiction, others continue to apply common law rules. Under common law, a Canadian provincial court has custody jurisdiction if the child was present, resident, or domiciled in the jurisdiction when the proceedings began.
According to Canadian law, both parents have equal rights of custody until a court decides otherwise. The court's primary focus is on what they believe to be in the child's best interests, and custody is granted accordingly. If a parent has custody, they can make important decisions about the child's life, including education, religion, and medical treatment. This can be in the form of sole custody, where one parent has full responsibility for making decisions, or joint custody, where both parents share decision-making ability. It is important to note that historical care of a child does not automatically guarantee child custody.
To avoid a lengthy court battle, parents can work with a mediator or lawyer to help negotiate and draft legally binding agreements. A family mediator is typically a person with a legal or social work background and special training in dispute resolution. They work with both parents to determine the best arrangements for the children. Lawyers can also be retained separately to help negotiate out-of-court parenting agreements and provide guidance on legal rights and obligations.
In terms of child support, the residence of the child is a determining factor in who will pay or receive financial support. The Divorce Act, a federal law, addresses child support arrangements, and provincial or territorial laws may also apply. Parents can be charged with a crime if they do not provide for their children under the age of 16, and child welfare officials can intervene if a minimum standard of care is not met.
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Property division
In Canada, marriage is viewed as an economic partnership, and upon the dissolution of a marriage, each spouse is typically entitled to an equal share of the profits of the marriage.
Division of Property for Married Couples
Part I of the Family Law Act (FLA) governs the division of family property for married spouses. Under the FLA, the system used for dividing family property is a "deferred community-of-property" regime. This means that, in general, all property acquired between the date of marriage and the valuation/separation date is considered marital or family property and is subject to equal division between the spouses. This includes real property (such as homes, land, cottages, and vacation properties), personal property (such as jewellery, furniture, and art), vehicles, investments, pensions, and outstanding loan amounts owed to one of the spouses.
Inheritances and gifts received during the marriage may be excluded from the property to be shared, as long as they cannot be traced to the matrimonial home. For example, if a car was purchased with money from an inheritance, the car can still be excluded as long as it can be traced back to the originally excluded property. It is important to note that the spouse claiming the exclusion bears the burden of proving the claim.
Division of Property for Common-Law Spouses
Common-law spouses are not subject to the FLA and do not have the same entitlements as married spouses. In most cases, there is no legal requirement for common-law couples to split property acquired during their relationship. However, common-law spouses may choose to enter into a domestic contract, such as a cohabitation agreement or separation agreement, that outlines their respective rights to property.
Provincial Differences
It is important to note that the rules for dividing property may vary slightly between provinces in Canada. For example, in Quebec, two sets of rules govern the division of property for married couples: family patrimony and matrimonial regime. In British Columbia and Alberta, the rules for dividing family assets in a long-term relationship breakdown are similar to those in divorce cases. On the other hand, Quebec offers fewer protections for common-law relationships, with no division of family assets and no obligations between former spouses.
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Application process
The divorce process in Canada is governed by the federal Divorce Act. However, the way a divorce is administered, and the procedures and documents used, differ by province or territory.
If you are applying for 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. Information on how to apply for a divorce in your province or territory is available from your provincial or territorial Ministry of Justice or Attorney General.
To get a divorce, you have to show that your marriage has broken down in one of three ways:
- You and your spouse have separated and lived apart for at least one year.
- Your spouse has been physically or mentally cruel to you, making it impossible to continue living together.
- Your spouse has committed adultery.
If you apply for a divorce on the basis of a one-year separation, you can live together for up to 90 days (either before or after you file the application) to try to reconcile. If you have been living together and decide to separate again, you can continue your divorce action as if you had never spent that time together.
If you are claiming your marriage has broken down because you and your spouse are separated, you do not have to wait to apply, as long as you and your spouse are living apart when you apply.
If your spouse has been cruel to you, you can file for divorce at any time, but you must provide evidence to substantiate your claims. The same applies to adultery. Only the alleged victim may apply for a divorce in cases of adultery or cruelty.
If both spouses agree, they can divorce amicably by presenting a joint application for divorce on a draft agreement. If the spouses do not agree, they must apply individually. If they want help, they can consult a legal adviser.
Once the divorce papers have been served to your spouse, they have 30 days to respond. After 30 days, if there is no answer filed by your spouse, you can then set down your divorce with the court by submitting your Affidavit for Divorce, Divorce Order and Clerk’s Certificate.
The court will not give you a divorce until you file your certificate, unless the court is satisfied by your explanation in your Form 36: Affidavit for Divorce why you cannot get your certificate. If you do not have your marriage certificate and were married in the same province as you are applying for divorce, you can get a copy of your marriage certificate for a fee. If your marriage certificate is not in English, you must have it translated by a certified translator.
The Central Registry of Divorce Proceedings must be notified whenever a person applies for a divorce anywhere in Canada. The court will send information to the federal Department of Justice’s Central Registry of Divorce Proceedings to obtain a Clearance Certificate that confirms no other divorce cases have been started in Canada for you and your spouse. The court cannot grant your divorce until the Clearance Certificate has been received.
Once the court grants a divorce, the divorce order will state that the divorce is effective 31 days after the order was made. You or your former spouse may request the certificate of divorce from the court. This is proof of the date of your divorce.
A court can only grant a divorce if it is satisfied that reasonable child support arrangements have been made for any children of the marriage. Your province or territory may have family justice services such as mediation that can help you and your spouse work out some or all of these issues before you go to court.
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Frequently asked questions
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. You must show that your marriage has broken down in one of three ways: you and your spouse have lived apart for at least one year, your spouse has been abusive, or your spouse has committed adultery. You must also prove that your marriage is legally recognised in Canada.
The Divorce Act is the federal Act that governs divorce in Canada. It was passed in 1968 and established a uniform divorce law across the country. It outlines that both spouses have equal rights to pursue a divorce and specifies the grounds for divorce.
No, you do not need a lawyer to apply for divorce in Canada. However, family law is complex, and it is recommended that you consult a lawyer to ensure your rights are protected. Some lawyers may offer a free or reduced-rate initial consultation.
