Divorce Law:
Questions and Answers
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Getting a Divorce
Is the marriage over once I begin divorce proceedings?
The marriage is not over until a judge gives you a
divorce order at the end of the process.
Before you begin divorce proceedings, you may wish to consider whether marriage counseling could help you and your spouse.Once you have started formal divorce proceedings, you may stop the process at any time if you and your spouse wish to think about reconciling.
Who can apply for a divorce in Canada?
You can apply for a divorce in Canada if:
- you were legally married in Canada or in any other country; and
- 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
- either or both of you have lived in the Canadian province or territory for at least one year immediately before applying for a divorce in that province or territory.
You do not have to be a Canadian citizen to apply for a divorce in Canada.
Do I need a reason to get a divorce?
To get a divorce, 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 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.
You can get a divorce if one of these situations applies to you.
Over 80 percent of divorces in Canada are based on one-year separations.
Do I have to prove that my spouse is responsible for
our marriage breakdown?
Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, 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.
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 start a divorce application?
It is always advisable when starting a divorce application to speak to a lawyer knowledgeable about family law. A 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. 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, from the Internet. In some jurisdictions, court offices and information centers provide 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.
What if I apply for a divorce and then try to live
with my spouse again?
Before or after you have applied for a divorce on the
ground of one-year separation, 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.
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.
What happens if we can't agree?
If you and your spouse cannot agree on one or more terms
of the divorce, such as the parenting arrangements for your child, 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 set out the steps you must take 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 case 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 cannot 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 you can 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. This judgment normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce.
A Certificate of Divorce is legal proof that you are no longer married.
What if I have issues that can't wait?
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.
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