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Know the Process of Moving On: A Comprehensive Guide to Divorce in Canada

Divorce still feels taboo, but four in ten first marriages in Canada ultimately end in divorce.

Getting to grips with divorce means understanding that people have diverse experiences of marriage. Fortunately, divorce in Canada is relatively uncomplicated compared to other countries.

From the federal application of the no-fault divorce to fee waivers for divorce applications, Canada acknowledges that some married people don’t want to remain married – and that’s okay.

Are you thinking about separation and what comes next? Keep reading to learn more about getting a divorce in Canada.

What You Need to Know Before You Apply for Divorce

To get a legal divorce in Canada, you need to prove three things when applying to a court.

First, you must prove that your marriage is legal. In most cases, you’ll need to provide your Canadian marriage license. Were you married in another country? You’ll need to provide your marriage license from the state where you legally wed.

In some cases, your marriage may not be recognized in Canada. If so, you cannot apply for a divorce in Canada.

Second, you must prove your marriage has broken down. 

Third, you must live in the province or territory where you intend to apply for divorce for a full year before you can apply for a divorce there. Only Canadian residents have the option to divorce in Canada.

There is one exception to the residency requirements for non-residents. If you got married in Canada and the country where you and your lawful spouse live doesn’t recognize the marriage, then you can get divorced in Canada. Non-resident divorces are more complicated and require working with the provincial or territorial Superior Court.

Do Both Spouses Need to Want a Divorce?

A marriage may be a legal contract, but it’s so much more than that to the people enter into one.

You need to prove that your marriage broke down and you have no intention of reconciling. However, this does not need to be the case for both spouses.

It is still possible to file for divorce even if only one party in the relationship wants the divorce. If you satisfy the separation requirement, then you can file for a contested divorce. Even if the other party refuses to engage, a judge may grant you relief from the marriage with enough evidence.

Can I Get a No-Fault Divorce in Canada?

Canada requires you to prove that your marriage broke down, but the Divorce Act provides for a no-fault divorce should you prefer one.

There are three available criteria for a divorce in Canada, and you only need to meet one:

  • You and your spouse are living apart and have for one year
  • Your spouse committed adultery
  • Your spouse is abusive

The no-fault option only requires that you meet the separation requirements.

You don’t have to live apart after you file for divorce. If you are separated and want to try again, you can live together for 90 days without it impacting your divorce. If you ultimately decide not to reconcile, then you can continue the divorce proceedings as usual.

You may find that lawyers recommend avoiding filing for divorce based on the grounds of adultery or cruelty unless you feel it is vital. Divorces that occur based on those grounds require longer processes and ultimately cost more than filing after one year of separation.

Additionally, the divorce proceedings won’t benefit you as the spouse who was cheated on or abused.

What If We Live in the Same House?

The high cost of living, an attempt to provide normalcy for kids, and other factors may keep otherwise separated couples living in the same house.

Unfortunately, federal and provincial law both require couples to be living “separate and apart” before the judge considers the marriage to have broken down. 

Because you never moved apart, it is difficult to provide a date for the start of the separation. The date is critical because all couples in Canada must be separated for a minimum of one year prior to applying for a divorce.

In the case where the couple continues to live together, the court will ask a series of questions to establish whether the couple is genuinely separated while living together. Some of these questions include:

  • Do the spouses share a bedroom?
  • What communication occurs between the spouses?
  • Do they attend social activities together?
  • Do they still engage in sexual relationships?
  • Is there a valid reason for the couple to continue living together?

If the couple answers yes to these questions, then a recognition of the separation is unlikely.

A separation is as much about providing physical space as it is withdrawing from the marriage. If a married couple continues to live in the same house, occupy separate bedrooms, but still maintains an entangled social and home life, then the court may say that the couple doesn’t have an intent for separation.

How to Get a Divorce in Canada: Step-by-Step

If you meet the grounds for divorce and you are ready to begin, then you’ll typically follow these steps to get it done.

Step 1: Complete Your Separation

All couples need to meet the separation requirements before applying to the court.

Remember that you need to leave separate and apart for a minimum of one calendar year before applying.

If living apart is impossible, consult with a lawyer to learn about your options.

Step 2: Get Your Application

Although everyone follows the federal Divorce Act, each territory and province has forms that apply to its courts.

You can get the forms through your local court, a family law information center, or a lawyer like Verhaeghe Law.

Additionally, if you live in Ontario, you can find the application online.

Step 3: Choose a Fault or No-Fault Divorce

When you file, you will need to decide whether you want to file for a no-fault or fault divorce.

The only requirement for no-fault divorce is maintaining separation for a minimum of one year.

Be aware that if you file a fault divorce, you will need to provide evidence of your claim of adultery or cruelty.

Step 4: Choose Contested or Uncontested

An uncontested divorce means that you both agree to the terms of the separation, including the reasons and terms.

In the case that you don’t agree, you will file a contested divorce. You will both need to submit an application stating your differences.

Optional Step 5: Outline Details of Parenting Agreement

Are there children involved?

The court will ask you to provide details of your parenting agreement. A parenting plan outlines how you will parent your children after you separate or get divorced. You’ll need to think about things like financial support, living arrangements, visitation schedule, and more.

Not sure what this looks like? The Department of Justice offers a parenting plan tool to help you develop your personal plan.

Be mindful and realistic when drafting your plan. Once a judge approves it, the plan becomes legally binding.

Step 6: Apply for Divorce with Your Province/Territory and Pay the Fee

When you’re ready and your forms are complete, it’s time to file the application you picked up.

In addition to your application, you may also need to file documents like:

  • Affidavit for Divorce
  • Divorce Order
  • Marriage Certificate
  • Affidavit in Support of Claim for Custody or Access
  • Financial Statement (Support Claims)
  • Support Deduction Order
  • Support Deduction Order Information Form

An official filing also comes with a court fee. The amount you pay depends on where you live and file.

For example, Quebec requires the couple to pay $302 for the initial divorce application as well as $101 for a joint application. Ontario requires a down payment of $167 when you apply, but you’ll pay a further $280 during the review.

Apply for a Fee Waiver

If you cannot pay the fee, then your province or territory may offer a fee waiver. Talk to your county government about asking the court to waive the fees.

Keep in mind that waiving the fees will likely come with more paperwork and you will need to apply at the courthouse.

Step 7: Follow the Waiting Period

After you file, the court will serve the papers to your spouse. Your spouse then has 30 days to respond. Ideally, your spouse will respond within the appropriate period.

If your spouse does not reply, then you can submit the Affidavit for Divorce and Divorce Order.

Again, you will need to wait for the court to decide on whether to grant your divorce. When the judge reviews all the relevant material and is satisfied with the application, you will receive your divorce with a Divorce Order.

Step 8: Receive Your Certificate of Divorce

After the judge grants your divorce, you will receive the Certificate of Divorce. You are now legally divorced.

Life After Divorce is Possible

Divorce is complicated and exhausting, but the Canadian government doesn’t add to your woes by making the process impossible.

Getting a divorce in Canada is a matter of meeting the separation requirements and filing the appropriate paperwork. It allows you to focus more on rebuilding your life as a single person and being the best parent possible for your children.

Are thinking about legal separation and divorce? Click here for even more resources on the divorce process.

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