What Are The Grounds For Divorce?

Divorce in Canada is governed by both the  Click here Divorce Act and Provincial Family Law Acts

You can and should review the laws for your province before proceeding. There is a huge amount of help available at no charge here

Under the Canadian Divorce Act, marriage breakdown is the only ground for divorce. (Subsection 8.2] of the Divorce Act

Proof of your marriage breakdown can be established in only these three ways:

Separation For One Year:

if you and your spouse have lived separately for at least one year with the idea that your marriage is over before the divorce judgment

(although you may begin the paperwork anytime after your separation begins).

Living "separate and apart" does not necessarily mean living in separate homes - you can be separated, but living in the same home for various reasons (children, money, etc.).

Adultery:

if your spouse has committed adultery.

Cruelty:

if your spouse has treated you with such physical or mental cruelty as to make it intolerable for the two of you to live together. Cruelty may include physical violence and/or causing severe mental anguish.

Separation is almost always the fastest, simplest and cheapest way to get your divorce.

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What If I Try To Reconcile And Live With My Spouse Again After We Separated?

You can get back together again for one period of no more than 90 days, or for several periods that add up to no more than 90 days. The 90-day reconciliation period allows you to try to repair your marriage without penalizing you if the attempts are unsuccessful.

If you live together for more than 90 days and separate again, the second separation date will be your new date of separation.  Back To Top

Who Can Apply For A Divorce In Canada?

Either of you can petition for divorce, or you can make a joint petition, if . . .

You were legally married in Canada or in any other country.

You do not have to be a Canadian citizen to apply for a divorce in Canada.

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.

Either or both of you have lived in a Canadian province or territory for at least one year immediately before applying for a divorce. Back to Top

Can There Be A Divorce If Only One Spouse Is Ready To Divorce?

Yes. If one spouse wants a divorce, the marriage has broken down.  Back to Top

What If I Was Married In Another Country Or Province?

It does not matter if you were married in another province or country. You can apply for divorce in your province if you have been living there for at least one year.

Must Both Spouses Reside In The Same Province?

No. Only one spouse must reside in the Province for at least twelve months before the divorce is granted (although you may begin the paperwork anytime after your separation begins). Back to Top

What Is The Difference Between Separation And Divorce?

Separation occurs when one or both spouses decide to live apart with the intention of ending their marriage. Once you are separated, you will need to work out concerns for any children you have, such as custody and child support. Property division and spousal support matters will need resolution.

You can resolve these issues in different ways:

You can negotiate a separation agreement. Click here CanLaw offers an excellent Separation Agreement kit here.

A Separation Agreement is a legal document signed by both spouses which details the arrangements you have agreed on. Both parties must obtain independent legal advice to make the document legally binding.

You can also make an application to the court to set up custody, support and property arrangements under the laws in the province or territory.

You can come to an informal agreement with your spouse. However, if your (ex) wife decides not to honour the agreement, you will have no legal protection.

CanLaw recommends our $55 Separation Agreement. You can use it to draft out an agreement or to finalize one or both. Either way, it can make things simpler for you. It is also much cheaper than paying lawyers to hammer out an agreement for you.

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Why Should I Bother To Get A Divorce When We Are Already Separated?

Living separate and apart does not end your marriage. You must get a divorce to legally end your marriage. You must have a divorce certificate before you can marry again. Back to Top

Fault v. No-Fault Divorce

Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce in Canada.

The only reason you can ask for a divorce is breakdown of your marriage, best shown by one year of separation. 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 (a 'joint 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. Going this route will be difficult, very expensive and could take years. It is not recommended.

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What Is An Uncontested Divorce?

Generally, for an uncontested divorce, the following must apply:

• No relief other than divorce is being requested. The issues of child support, access and custody have been resolved by the parties through a separation agreement or court order.
• The grounds for divorce is one year separation.
• There are no problems serving your spouse.
• Your spouse is not going to file an Answer.

Uncontested Divorce In Canada

The court will treat your divorce as uncontested only if you and your spouse agree on all the issues raised by the divorce.

In most provinces and territories, court officials process uncontested divorces and you do not have to appear in court.

Note that you cannot file an 'uncontested divorce' the divorce becomes 'uncontested' only after your spouse has been served (given a copy of the filed Application for Divorce) and he or she does not respond by filing an Answer within the required time period. If he or she does not file an Answer, the divorce becomes 'uncontested.' Back to Top

Uncontested V. Joint Divorce In Canada

An 'uncontested divorce' is a regular divorce that your spouse does not contest because he or she agrees with what you are asking for. A 'joint divorce' is where both spouses file for divorce together. With this type of divorce, both husband and wife sign and swear the divorce papers.

Neither spouse is suing the other for divorce. You are telling the court that you both want the divorce.

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Contested Divorce In Canada

What Happens If We Can't Agree On All Of Our Issues?

Click here For CanLaw's outline of what is required in a Contested Divorce

If you and your spouse cannot agree on one or more terms of the divorce, such as the child's residential schedule, child support, or spousal support, you have a contested divorce. Back to Top

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. Back to Top

Are There Time Limits?

Petition for divorce - NO

There are no time limits for petition for divorce.

Custody Access or Child Support - NO

There is no time limit with respect to issues relating to children however, delay in resolving these issues may prejudice your rights. For instance, with respect to custody, it is important to keep in mind that stability is one of the things that judges consider when deciding where a child should live. If a child has been living primarily with one spouse for any length of time, a judge may be reluctant to make the child move. Therefore, contact a lawyer immediately to resolve these issues.

Spousal Support - Depends

There is a time limit with respect to spousal support under the Family Law Act but not under the Divorce Act.

Division of Property - YES

There are time limits for division of property. If you and your spouse have to ask the court to decide how to divide the property you shared while you were married, there are time limits on how long after your marriage breaks down that you can do this.

The time limits are:

• 2 years after the date of your divorce or annulment;
• 6 years after the day that you separate with no chance of getting back together; or
• 6 months after your spouse dies.

To legally end your marriage, you need a divorce, which is a formal legal order signed by a judge under the federal law called the Divorce Act

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How Do I File For Divorce In Canada?

It is always advisable to at least talk to a lawyer first, when filing for divorce. A divorce 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.   Back to Top

Do I Need A Lawyer For An Uncontested Divorce?

You can commence your divorce proceedings by:

• Lawyer representation
• Paralegal or agent representation
• Do it Yourself self-representation.

Even if your divorce is uncontested, it is wise to consult with a lawyer to ensure your rights are fully protected.

You really should get legal advice on financial matters, child support, custody and access which are the major problems that will arise in divorce.

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Considering Representing Yourself?

What Is Involved If I Decide To Represent Myself In A Divorce Proceeding?

The following procedures must be completed for your Petition for Divorce using separation as the grounds:

• Obtain your original marriage certificate.
• Obtain set of complete divorce forms for your province.
• Fill out the required forms.
• Attending court office to start your divorce process by filing documents.
• Serve Petition for Divorce to your spouse.
• Attend court office to file proof of service of divorce papers on spouse.
• Obtain divorce certificate.    Back to Top

How Long Will It Take Before I'm Divorced?

Expect to wait about two to three months after filing your motion record with the court. However, it might require more time because the judge might be unsatisfied with your papers, or there could be issues of proof that may require court attendance.

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Do I Need To Attend Court?

Probably not. In most cases, no court appearance will be necessary for an uncontested divorce. However, if it is, then your case may no longer be an uncontested divorce. In that case, then you may need to retain a lawyer to handle the actual hearing in court, for an additional fee. Back to Top

When Can I Marry Again?

Once the judgment is final, you can apply for a Certificate of Divorce. You must have a  Click here Certificate of Divorce to get married again in Canada. A Certificate of Divorce is legal proof that you are no longer married. Remarrying is like saying you did not learn a lesson from your first divorce. Back to Top

What If We Were Never Legally Married?

If you are not legally married, divorce does not apply to you.

However, you can still negotiate a separation agreement or make an application to the court under the laws in your province or territory to set up custody, child support and other arrangements.

Common-law spouses have fewer rights upon separation than married couples. Back to Top