Filing for Divorce in Canada?
Going through divorce is a stressful and complicated time. It may appear complex, but simple information about the process may ease some of your concerns. Here is a short overview of divorce filing requirements, steps involved and considerations to take during this time.
Who Can Get a Divorce in Canada?
Before taking the steps to get a divorce, you must determine if you meet the requirements of eligibility set out in the Divorce Act, Canadian law governing divorces. Here’s a simplified outline of the process along with things you need to know:
1- Legal Marriage
The first requirement is that you and your spouse are legally married. This may be a marriage with another Canadian, or from any other country, as long as the marriage is recognised by Canadian legislation.
2- Residency Requirement
Only Canadian residents can apply for a divorce in Canada. One spouse must have resided in Canada for at least one year before proceeding with an application for divorce. If neither you nor your spouse lives in Canada, you cannot get a divorce under Canada’s Divorce Act, but you may be able to end your marriage under the Civil Marriage Act if you meet certain criteria.
3- Marriage Breakdown
Your marriage needs to have ‘irretrievably broken’ down; this means that there is no possibility of reconciliation. Although the Divorce Act establishes three grounds for the breakdown of a marriage:
- Living apart for at least a year,
- Adultery, and
- Cruelty,
Courts favour the fact you have been living apart for one year or more. Using the ‘living apart’ grounds expedites the case, without requiring evidence, witnesses and a court trial the other two grounds may need.
Steps in the Process
The Divorce Act is federal law. This means the process is the same across Canada, including:
Period of Separation
A minimum one-year period of separation is required prior to getting a divorce. You can proceed without this requirement if the grounds for filing are adultery or cruelty.
Filing the Divorce Application
The first step in the process is completing an application and filing it at a Family Law courthouse in the city/province where you live. Your original marriage certificate must accompany the application. If the marriage certificate is in another language, it must be translated, by a certified translator, and then attached to the application.
Service of the Application
Once the application has been filed, your spouse must be informed. This means your spouse must be given a copy of the application filed at the courthouse. It may be hand delivered by a process server or sent via registered mail. If you have difficulties serving the spouse, a lawyer is equipped with the knowledge and experience to help you navigate this issue.
Response (If Contested)
Your spouse will then need to file their response to your divorce application at the same courthouse. If they disagree about either getting divorced, or what you want in the divorce this becomes what is called ‘contested’ and your lawyer will advocate for you with your spouse’s lawyer.
Financial Disclosure (Income, Assets and Debts)
After filing the application, there are financial forms that need to be completed. Both spouses must legally show the Court their individual income, assets and debts. This is necessary for sorting through financial issues, such as spousal support and division of matrimonial property. Issues surrounding financial disclosure, division of matrimonial property, child custody, spousal support (alimony) etcetera, are covered by provincial Family Law Acts.
Settlement Conferences (If Contested)
Most divorce cases are resolved without going to court. Trials are expensive, exhausting and time-consuming. Therefore, both sides attend Settlement Conferences to resolve issues. There may be many settlement conferences as the issues are addressed, negotiated and resolved. In addition, either side may access the services of a divorce mediator (an impartial gatekeeper role) to facilitate the resolution of matters without going to trial.
Trial (If Necessary)
If no agreement can be reached on one or more issues, a trial proceeds where a judge decides and make ‘orders’ (a final, legal decision) on any issue such as: child custody, visitation, spousal support (alimony), or property division.
Divorce Order and Certificate
After all issues are resolved, whether agreed upon through settlement conferences, mediation or at trial, a judge grants a ‘Divorce Order’. This is a document with a judge’s signature, marking the legal end to a legal marriage. After the Divorce Order has been made, you may request a ‘Divorce Certificate’. This is a document issued by the Court, showing your marriage was legally dissolved. A Divorce Certificate is needed if you plan on marrying again.
Uncontested Divorce
If both you and your spouse agree to get a divorce, the process is somewhat similar and with less steps.
Divorce Application (Uncontested)
When completing the initial application for a divorce, both you and your spouse sign it, check off a box that shows it is a ‘Joint Application’, then file it at a Family Law courthouse. If you have agreed upon matters such as: parenting, child custody, child support, spousal support (alimony), division of property, etcetera, a copy of your written agreement about these matters must be attached to the application.
Divorce Order (Uncontested)
The application will make its way to a judge’s desk where it will be read, reviewed for accuracy and signed. The judge will make a Divorce Order and if you ordered a Divorce Certificate it shall be sent to you.
Things to Keep in Mind when Filing for Divorce
If you are considering filing for divorce, you may or may not have considered hiring a lawyer. It is legal to go through the process without legal representation, both in contested and uncontested scenarios. Family Law is complex, it involves knowledge and understanding of both the Divorce Act and applicable provincial Family Law Act. A lawyer can provide clarity about your rights and responsibilities. Additionally, a lawyer protects your interests, assists you through the process and facilitates settlement without going to trial.
There may be many different legal issues involved in a divorce, where the benefit of sound legal advice is required. These include:
- Parenting – who has decision-making authority involving day-to-day activities, holidays, sports, travel, child-rearing and more
- Child Custody – who the children will reside with and how time is to be shared
- Child Support –how much child support one parent will pay to the other, according to income and number of days each parent spends
- Spousal Support (alimony): whether one spouse will provide spousal support to the other, if so how much and for what duration of time
- Division of Matrimonial Property – according to financial forms completed, fairly and equally dividing all marital property
Conclusion
A divorce is difficult time, but, by understanding the process you might be better prepared to handle this transition. Utilise the steps provided here; seek legal advice when you deem necessary, and access available resources to make informed decisions in your life moving forward. It is important to remember you are not alone. There is support for you at every point. Competent, caring legal professionals are only a click away.
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