Divorce in Canada: FAQ
Below are answers to the most frequently asked questions about Divorce in Canada. Please remember that these answers are intended to provide you with general information in order to help you better understand the process of filing for a Divorce in Canada. However, each situation is unique and because of this it is always best to retain legal advice from a family law expert in your area to ensure that your rights are fully protected.
Can I get a Divorce if I wasn’t married in Canada?
Yes, as long as you, or your spouse, have lived in Canada for at least a year. Divorces granted in Canada are based on your current status as a resident, not where your marriage took place.
Do I need a reason to get a Divorce? If so, what is an acceptable reason?
In Canada, the only legal reason you need to be granted a Divorce is that your marriage has broken down. The law accepts that there has been a breakdown of your marriage if you can prove that you and your spouse have lived separate and apart for at least one year. In some cases spouses can be living separate and apart even if they abide under the same roof, but in this situation it is up to you to prove that while living together you did not live as a couple.
Also, a Divorce can be granted without the one year of separation if you can prove that your marriage has broken down for either of the following reasons:
- Your spouse had sex with someone else after you married (adultery), and you did not forgive the adultery or live together for more than 90 days after finding out;
- Or your spouse was physically or mentally cruel.
Generally it is not recommended that couples apply for Divorce under the 2 above grounds, as these Divorces tend to be longer and more costly.
If I have been separated for a long time does that mean I am automatically Divorced?
No. Divorce never just automatically occurs and a marriage never nullifies regardless of how long you and your spouse have been separated. Separation for one year is an acceptable ground for Divorce, but to receive the actual Divorce you must go through the correct legal process in Canada.
Can you get a Divorce if only one partner wants it?
Yes. If one spouse wants a Divorce then that is proof of a break down in your marriage. However, you will need to wait for a one year separation period, or meet one of the other approved grounds for Divorce in Canada. To learn the specific details of the grounds for Divorce in Canada please visit our Divorce page.
Can you get a Divorce if you are not a Canadian citizen?
Yes. You do not have to be a Canadian citizen to be granted a Divorce in Canada. Also, it doesn’t matter where your marriage took place. As long as you or your spouse has been a resident for at least a year, then you can apply for a Divorce.
Can the terms of a Divorce be changed?
Once a Divorce has been granted you have a 31 days to appeal. Once this time has passed the Divorce is final and it can not be undone. However the terms of your Divorce are never final. Terms such as child custody, access, support etc. These can be changed depending on people’s lives and circumstances.
What are the grounds for Divorce in Canada?
In Canada there is only one ground for Divorce: Breakdown of the marriage.
The Divorce Act states that a Breakdown of the marriage is established only if:
- the spouses have lived separate and apart for at least one year immediately preceding the determination
of the Divorce proceeding and were living separate and apart at the commencement of the proceeding;or
- The spouse against whom the Divorce proceeding is brought has, since the celebration of the marriage:
- Committed adultery, or
- Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses
For a more detailed explanation that can help you to better understand the grounds for Divorce in Canada, please visit our Divorce page.
Who can apply for a Divorce in Canada?
You do not have to be a Canadian citizen to apply for a Divorce in Canada.
You can apply for a Divorce if:
- you were legally married in Canada or in any other country;
- 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
- if either or both of you have lived in a Canadian province or territory for at least one year immediately before applying for a Divorce.
What is the difference between separation and Divorce?
A Divorce is the legal termination that ends your marriage and allows you to remarry if you wish.
A separation is an action that married couples make prior to a Divorce. In Canada one of the grounds for a Divorce is the completion of a one year separation period. After this time has passed you can file for Divorce. During a separation spouses live apart with the intention of ending their marriage. However, you are still legally married and at any time you can reconcile.
Do I need a lawyer to get a Divorce?
No. However, you would consulting with a lawyer is always best as many people getting Divorced have issues relating to children, support, property etc. A lawyer experienced in family law can make sure your rights, children and property are fully protected.
How is child custody determined?
When dealing with Child Custody in Canada our courts focus on one thing: The best interest of the children. Many people falsely believe that when a couple Divorces the children will automatically be placed with the mother. This is not true.
Some of the important factors that a court considers when determining custody are:
- First and foremost the best interest of the children.
- The parent-child relationship and bonding.
- Parenting abilities of each individual.
- Each parents mental, physical and emotional health.
- The parents and the children’s schedules.
- Available support systems of each parent (for example, help and involvement of grandparents or other close relatives).
- Sibling issues. Generally, brothers and sisters will be kept together, but under some circumstances it may be necessary to consider separating them.
- Care arrangements before the separation. Who was the primary care giver?
- The child’s wishes.
There is much to consider when discussing child custody and there are multiple types of different custody arrangements. For further details on this very important topic please visit our child custody page.
I’m getting Divorced. What do I do first?
The first thing to do when approaching a Divorce is educate yourself, learn all you can about the Process of Divorce and the different options available to you in your province. Make sure you have copies of all important financial and legal documents related to your marriage and then once you have a basic understanding of the Divorce process and your paperwork is in order, have a consultation with a lawyer. A lawyer that specializes in family will be able to help you understand the dynamics of Divorce in your province and your situation.
Who gets to keep what in a Divorce?
Under Canada’s Constitution, each province and territory is responsible for laws regarding the division and/or equalization of family or marital property, and these laws can vary from one province or territory to another. Some of the general laws across Canada are:
“The value of any property that you acquired during your marriage and that you still have when you separate, must be divided equally between spouses. Property that was brought into your marriage is yours to keep, but any increases in the value of this property during the duration of marriage must be shared.”
This theory is applied to most family assets with the exception of some, and one of the most important exceptions being your matrimonial home. Unlike other property, if you owned the matrimonial home on the date of marriage, you do not receive any credit for it when you separate. Also, it doesn’t matter who has their name on the papers for the house, both spouses have an equal right to remain in the matrimonial home.
To find the exact laws in your province it is best to retain a family lawyer in your area, or visit your provincial government website. We have more details on this topic and links to each provincial website on our Property page.
Hopefully our FAQ, frequently asked questions about Divorce in Canada, has helped to answer some of your questions. For more in-depth information about any specific topic, please feel free to browse our site and visit our individual site pages. Some of the most popular pages to get you started in your research are Introduction to Divorce,Separation in Canada, and Child Custody in Canada. Should you need specific answers or advice for your personal situation, you can always post an anonymous question to one of our experts, or simply contact a lawyer and get a personal assessment from one of our lawyers. At Divorce Canada our goal is to educate you and guide you though the entire Divorce Process.
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