Rules for Divorce in Canada
- Process overview
- Basis for a divorce
- What is an uncontested divorce?
- Support and custody issues
- Starting the process
- The Divorce Act
The Divorce Act and its recent amendments are federal laws. Provincial courts are tasked to grant your divorce if you can prove certain facts.
Generally, you file in your home province. You will need to produce your original marriage certificate. You will also require a copy of existing court orders, separation agreements and any other written agreements dealing with the marriage or any children of the marriage. If one of the spouses has been previously divorced, a copy of the divorce judgment is required if divorced outside of Canada.
It is not for free, when you file your documents you pay court costs. The amount varies by province, the latest costs are listed in the FAQ page.
How long does it take? The minimum time is 90 days, but it all depends on several factors.
Short version of divorce in Canada.
- Decide if divorce is your only option.
- Try to resolve property and children issues first,
a separation agreement is a good idea, but not a requirement for divorce.
- File your petition/application/claim.
- Wait 30 days for ‘clearance’ and concurrently give a copy to your spouse.
- File the second set of papers.
- The courts will look at your papers and evidence then decide to grant your divorce.
Grounds for Divorce
In Canada the only basis for granting a divorce is marriage breakdown. There are only three reasons for breakdown.
You have lived separate and apart for at least one year. You do not need to prove desertion nor do you need to prove any fault at all. If you have lived apart for one year, and there is no dispute about the time or anything else, then your divorce may be granted. In some provinces you may file for divorce before the one-year period.
The spouse against whom the divorce is claimed has committed voluntary sexual intercourse with the opposite sex. You may be granted a divorce if you and your spouse can agree on the facts or you can prove your claim in court.
You may proceed to get a divorce on the grounds of physical or mental cruelty without a waiting period.
Uncontested Divorce: What is it?
Uncontested means that you have an agreement with your spouse or he/she will not respond or argue the facts. It is a myth that your spouse must agree with you; under the Divorce Act and the Child Support Guidelines both parties must follow the guidelines. So? What it means is that you don’t need his/her permission or approval to get child support or your divorce.
Support or Custody issues
A federal act helps the court determine the amount of child support, please refer to the Child Support Guidelines The court would prefer that you and your spouse come to an agreement about custody and support issues in accordance with the guidelines. You both have an obligation to follow the guidelines.
Your divorce order may include provisions for monthly child support payments, custody and visitation rights, and the division of property.
A separation agreement is a sound idea. If you have one, good for you. If not, then you can see a lawyer to have one drafted, or, request your free separation agreement package from divorce specialist Colin Kennedy. However, a separation agreement is not a requirement for divorce.
The court has a duty to ask you if reconciliation is possible.
You and your spouse may live together after separation for the purpose of reconciliation without eliminating the time towards the one-year period as long as each temporary period or periods of living together does not exceed 90 days in total. A weekend away or casual sleepovers do not hinder your one-year waiting period.
How to Start your Divorce Proceedings
Traditionally, people would automatically seek out a lawyer. Things have changed with the new relaxed version of the Divorce Act. The process has been simplified. However, various forms must be completed and submitted. Figuring out which ones apply to you can be a daunting and confusing task.
To start your divorce simply fill in the application form and send it along with your one time fee of $199. Your divorce papers are prepared and sent to you ready for filing at your local court. In addition you receive unlimited e-mail support.