Demystifying Divorce in Canada: A Guide to the Canadian Divorce Process

Divorce is a significant life event, and understanding the legal requirements and procedures in Canada can make the process less daunting. Drawing from my years of experience in family law and divorce law, this comprehensive guide aims to educate individuals about the Canadian divorce process, including eligibility requirements, necessary documents, and the steps to file for divorce.

Eligibility for divorce in Canada

To be eligible for a legal separation in Canada, you must meet the following criteria:

Residency: One spouse must have been a resident in the province where they are filing for at least one year prior to making the application. This ensures that the court has jurisdiction over the divorce proceedings.

No active divorce applications: There cannot be any other active divorce applications open in any Canadian province or territory. This requirement prevents conflicting divorce proceedings and ensures that the divorce process is centralized.

Grounds for divorce: You must prove that the marriage has broken down due to one or more of the following:

• Separation for at least one year: This is the most common ground for divorce and simply requires that the spouses have lived apart for a minimum of one year.
• Adultery: If one spouse has been unfaithful, the other spouse can use this as grounds for divorce.
• Mental or physical cruelty: If one spouse has subjected the other to cruelty, this can also be grounds for divorce. This can include emotional abuse, domestic violence, or other forms of mistreatment.

Having worked with numerous clients, I’ve seen how crucial it is to gather evidence and documentation to support these grounds. For instance, one client successfully filed for divorce on the grounds of mental cruelty, providing detailed records and witness statements to the court.

Contested divorce vs uncontested divorce

The difference between a contested and uncontested divorce is very simple. In a contested divorce, the parties do not agree on how all of the issues in the divorce should be settled. There may be disagreements on property division, spousal support, child support, or parenting. in most cases, these issues will need to be resolved before a final divorce can be granted.

In an uncontested divorce, the parties are in agreement with how the issues in their divorce will be resolved. These parties will likely be able to move quickly to file for divorce with the use of consent orders or a joint divorce application.

Steps to file for divorce

Each province in Canada has specific procedures, so the first step is to check the specific documents and processes required in your province. While the Divorce Act is a federal piece of legislation, each province and territory has its own forms and processes. I often tell my clients, “It’s like playing a game, but each province has its own rulebook. Make sure you know the rules before you start playing!”

Here are the main steps to file for divorce:

Statement of Claim/Petition for Divorce

The process will begin with a statement of claim or petition for divorce, which includes the remedies you seek, such as marital property division, spousal support, and parenting arrangements. This document is filed with the court and served on the other party. The statement of claim will list all the relief you are requesting as part of the divorce, including division of property, spousal support, child support, and parenting time.

Example: In a recent case, a client filed a statement of claim in a family court, seeking joint child custody and equal division of marital assets, including their family home and cottage. They joked about splitting their favorite coffee maker – it’s always the little things that matter most, right?

Service of documents

Serve the divorce documents to your spouse according to the rules of your province. This may involve personal service, registered mail, or other approved methods. It’s important to follow the specific service requirements of your province. 

Generally, personal service means that an adult other than the party serving the document personally hands the documents to the other spouse after confirming their identity. Ordinary service might include sending documents via registered mail or email, depending on the court’s rules. 

If the other party’s location is unknown, you may need to apply for substitutional service, which could involve methods like publishing in a local newspaper or using social media.

Response options

The other party has several options to respond:

1. File a response: This indicates that they disagree with what is being sought in the claim.
2. File a counterclaim: This allows them to ask for remedies of their own.
3. Agree to the terms: They may contact the other party or their lawyer and enter into a consent order of judgment without formally responding.
4. Do nothing: If they choose not to respond, the timeline specified in the statement of claim will dictate the next steps. Failure to respond may result in a default judgment, where the court grants the remedies requested by the filing spouse without the other party’s participation.

Example: I had a client who initially did not respond to the divorce claim due to being overwhelmed. After realizing the importance, they promptly filed a counterclaim to ensure their interests were represented.

Necessary Documents for Divorce

The specific documents required for a divorce application can vary by province. However, generally, you will need:

Statement of claim or petition for divorce

This document sets out the remedies you are claiming, such as property division, spousal support, parenting time, and child support.

Affidavit of service

This proves that the statement of claim was served on the other party. The person who served the document swears an affidavit confirming where, when, and how the service took place.

Affidavit in support of your position

This document will provide the evidence and reasons for why a judge should grant the order you are requesting.

Draft divorce judgement

In some cases, you may need to provide a draft version of the court order you wish the judge to sign. This outlines the terms you are asking the court to approve.

Each province’s rules will specify the exact divorce papers and forms required, and these can usually be accessed through courthouse or government websites.

Negotiation and mediation

Before resorting to court proceedings, couples are encouraged to resolve their issues through Alternative Dispute Resolution (ADR):

Divorce mediation

A neutral third party helps the spouses negotiate and reach an agreement. Mediation can be a more amicable and cost-effective way to resolve disputes compared to litigation.

Negotiation

Direct discussions between the spouses or their lawyers can also lead to a divorce settlement. This approach allows for more control over the outcome and can be less adversarial.

Separation agreement

Once an agreement is reached, it is formalized in a separation agreement or consent order. This agreement covers all the key issues such as property division, spousal support, child support, and parenting arrangements.

Example: I recently mediated a divorce case where both parties amicably agreed on joint child custody and equitable division of their shared business, avoiding a lengthy court battle with an expensive divorce lawyer. One of them quipped, “At least we can agree on something, right?”

The Divorce Act and court procedures encourage or mandate that parties try ADR methods before making a court application. This is because ADR can lead to more satisfactory outcomes for both parties and reduce the burden on the court system.

Court proceedings

If ADR fails, court proceedings may be necessary. The process involves:

Applications

Each party will submit applications supported by affidavits (written statements of evidence) to the court. These documents provide the necessary information for the judge to make an informed decision.

Evidence

In cases that proceed to a trial in family court, parties may need to present oral evidence, including testimony from witnesses and experts. This can be a lengthy and costly process, but it may be necessary if the parties cannot reach an agreement on their own.

The judge will review the evidence and make a final decision on any unresolved issues. This decision is binding and enforceable by law.

Finalizing the divorce

Once all issues are resolved, the final steps include:

Divorce order

The judge signs a divorce order, formally ending the marriage. This order may have an appeal period (typically 31 days), during which either party can appeal the decision.

Certificate of divorce

Obtain this certificate, which serves as proof of the divorce for legal purposes, such as passport applications or remarriage. In some provinces, this certificate is automatically provided, while in others, you may need to request it separately.

Example: A client recently required a certificate of divorce for a job overseas. Understanding the process ensured they obtained it promptly without legal complications.

The divorce order and certificate of divorce are crucial documents that confirm the legal end of the marriage. They may be required for various administrative purposes, such as changing your marital status on official documents or proving eligibility to remarry.

Key points to remember

• Eligibility: Ensure you meet the residency and grounds for divorce requirements.
• Documentation: Familiarize yourself with and gather the necessary documents specific to your province.
• Service and Response: Properly serve divorce papers and be prepared for possible responses from your spouse.
• Negotiation First: Attempt ADR methods like mediation before resorting to a divorce trial in family court.
• Final Steps: Understand the significance of the divorce order and certificate of divorce.

Conclusion

The Canadian divorce process, while uniform in its federal framework, varies in execution from Ontario to BC, and from Alberta to New Foundland. Understanding these nuances, along with the steps and requirements, can help you approach your divorce with clarity and confidence. It is always recommended with an experienced divorce attorney to get legal advice tailored to your specific situation.

By following these guidelines, you can navigate the divorce process in Canada with a better understanding and greater assurance, making a challenging time a bit more manageable.