Only a court has the authority to dissolve a marriage by granting a divorce in Canada. In Canada, different levels of court have jurisdiction to deal with different family law matters. That is because family law matters fall under both provincial and federal legislation. Only the Superior Court of Justice or the Unified Family Court (that has jurisdiction to deal with issues of both the Superior Court of Justice and the Ontario Court of Justice) can grant divorces in Ontario.
Who Can Get a Divorce?
Generally, if you are seeking a divorce in Canada, you must meet the following requirements:
- You have a valid marriage under Canadian laws or a valid marriage under the laws of another country that Canada recognizes;
- You or your spouse lived in the province or territory of Canada where you apply for your divorce for a full year immediately before making your court application; and
- Your marriage has broken down.
Marriage Breakdown: Grounds for a Divorce
You can seek a divorce even if your spouse does not want to end the marriage. There are different “grounds” to establish a breakdown of marriage in Canada:
- If the spouses have lived separate and apart for at least one year immediately before the determination of the divorce proceeding and were living separate and apart at the time the divorce proceeding started;
- The other spouse committed adultery; or
- The other spouse treated the spouse seeking a divorce with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses;
“Living separate and apart for one year” is the most common ground of divorce in Canada. Spouses may be live separate and apart while sharing the same “roof” if they have been clear that the marriage is over. When spouses disagree about the date of separation, this can complicate a divorce proceeding, and you should consult a family law lawyer.
Things to Know Before Getting a Divorce
Exploring Reconciliation
The Divorce Act (R.S.C., 1985, c. 3 (2nd Supp)), requires every lawyer acting on behalf of a client in a divorce proceeding to advise clients about 1) the provisions of the Divorce Act that supports marital reconciliation between spouses (for example, the one year “separation period” as a ground to establishing marriage breakdown instead of letting spouses obtain divorces right away) and 2) the possibility of reconciliation unless the circumstances are of such a nature that it would be inappropriate for the spouses to do so.
Resolving Child-related, Support-Related and/or Property Issues
Before seeking a divorce, you should see a family law lawyer to obtain advice on legal issues that arise out of the breakdown of your marriage. Legal issues commonly arising out of a marriage breakdown are property division, spousal support, child support, property division, sale of jointly owned properties, parental decision-making and parenting time for children, etcetera.
Negotiating a resolution to family law issues arising from a separation is recommended before starting a divorce application, if possible. Otherwise, those matters will complicate the divorce proceeding if your spouse makes counterclaims to address them. A court will not grant a divorce if there are no reasonable arrangements for child support where there are children entitled to support under the Divorce Act (child support arrangements are usually evidenced by a separation agreement or a court order and in line with the Child Support Guidelines).
In situations where spouses are unable to resolve issues arising out of their separation through negotiation, either directly or with lawyers, then there are “alternative dispute resolution” processes outside of court they may wish to consider. Mediation is a process where a third party (i.e., mediator) helps spouses focus their issues and help broker a resolution. Spouses can engage in mediation either alone or with their lawyers (depending on the complexity of the issues in dispute and the comfort level of both spouses in engaging in mediation). A mediator does not have the authority to impose a binding decision on issues in dispute. Another alternative dispute resolution process is mediation-arbitration, which is a two-part process where parties start with mediation. If all issues are not resolved in the mediation phase, the parties may proceed to the arbitration phase to have someone make a binding decision. Arbitration is a process where parties can give evidence and put forward arguments in front of an “arbitrator” who acts as a private judge with the authority to make legally binding decisions on matters in dispute. In mediation-arbitration, the parties can agree that the mediator and arbitrator will be different individuals, or they can agree to have the same person act as both a mediator and arbitrator. A family law lawyer can aid you in recommending the process best for your family law situation. For more information, you can read our blog post on Alternative Dispute Resolution.
Limitation Periods
If you are entitled to an equalization payment because your spouse’s net worth during the marriage (“net family property”) increased more than your net worth during the marriage (“net family property”), then a divorce may shorten the time you have to make a claim at court under the Family Law Act, R.S.O., 1990, c. F.3. A spouse has 6 years from the date of separation, or 2 years from the date of divorce, whichever period is shorter, to make a claim at family court for equalization of net family properties.
For example, if you and your spouse separated on January 1, 2019 then you have 6 years to make an equalization claim against your spouse at court (i.e., until January 1, 2025). If you were divorced on March 1, 2020 then your time to make an equalization claim at court shortens to March 1, 2022. Once the limitation period expires, then you are statute-barred from making an equalization claim (although, you may ask the court for an extension of time to bring an equalization claim and should consult with a lawyer right away if you discover you are outside the limitation period for making such a claim to get specific legal advice).
Possessory Rights of the Matrimonial Home
Part II of the Family Law Act deals with spousal rights regarding the matrimonial home, which is defined as the propert(ies) that spouses are ordinarily living in as their family residence on the date of separation. In situations where only one spouse legally owns the matrimonial home, the spouse with no ownership interest in the matrimonial home still has legal rights to stay there, consent to debts being secured against the property and consent to the sale of that property to a third party.
If one spouse legally owns the matrimonial home, a divorce ends the right of the other spouse (who is not a legal owner of the property) to continue living in the property unless there is a court order or separation agreement providing otherwise. A divorce ends the marriage and the special status of the property as a “matrimonial home.”
Procedural Considerations
You will need your original marriage certificate or a certified copy of your marriage certificate because that must be filed with the court before a divorce is granted. The Superior Court of Justice and Unified Family Court also charge various court fees for processing a divorce.
A “simple divorce” application is a request for a divorce, only, where your spouse does not file responding material contesting the divorce or making counterclaims (e.g., for child support, equalization, etc.). A divorce application can be prepared by one spouse or by both (in which case it is called a joint divorce application). The court form for a “simple” or “joint” divorce application, Form 8A Application (Divorce), can be found on the Ontario Court Forms website, along with other forms required by the court. Form 36 Affidavit for Divorce and Form 25 A Divorce Order must also be completed and submitted to the court as well. Form 36 Affidavit for Divorce needs to be signed before a commissioner of oaths or a lawyer under oath or solemn affirmation. Both spouses need to complete and submit the Form 36 Affidavit for Divorce if it is a joint divorce application. Once a court grants a divorce, then you will need a Form 36B Certificate of Divorce to be issued (i.e., signed by the court clerk) to legally remarry in the future. A Certificate of Divorce from the court can only be obtained after the divorce has come into effect (i.e., 31 days after the date in the Divorce Order). Generally, if all the paperwork for a simple divorce or joint divorce application is appropriately submitted, neither you nor your spouse will have to attend the court in person for a divorce to be granted.
The Family Law Rules (the legal rules relating to procedure in family court) also requires your spouse to be personally handed the divorce application by a third party who is over the age of 18 years as spouses are not allowed to “serve” divorce applications on each other.
The above information is NOT legal advice of any kind, and you should be sure to speak to a qualified family law lawyer about your specific situation. For more information, call us at 905-273-4588 or email us at contact@kainfamilylaw.com to book a free 30-minute consultation with one of our experienced family law lawyers at Kain & Ball Family Law.