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Can You Get Divorced in Canada?

In Canadian Society, it is commonplace to find people who were married someplace else either because the couple got married before immigrating to Canada or because the couple left Canada to get married someplace else. Those marriages break down like many others. Sometimes the stress of immigration or financial pressures means they break down even more often. No matter where they are married, many spouses can get divorced in Canada, as long as they meet certain criteria.

To be clear, married couples do not have to get married in Canada to get divorced here and married couples do not have to go back to where they were married to get a divorce. To get divorced in a Canadian Court, at least one spouse has to prove that the parties were actually married, usually, but not always, by filing the marriage certificate with the Court when asking for a Divorce Order.

If the couple were not actually married, then they do not need to get divorced. Living common law is not the same as being married. Common law couples do not need to get divorced, because all a divorce means is that people can remarry. However, common law couples can have issues related to their separation addressed in a Canadian Court – usually the court for the municipality where the children live if there are children.

There are more rules for getting divorced because the law says marriage is a more serious type of relationship that has legal consequences. Undoing a marriage can also have legal consequences. That is why, in Canada, Superior Court Judges grant divorces.

Under section 8(2) of Canada’s Divorce Act, married couples cannot get divorced until they have lived separate and apart for one year. That does not mean that they have to live in different places for a year. What it means is they must stop living as husband and wife, even if they are living in the same room, for at least one year. It is easy to tell that people have separated when one person moves out. Determining the date that a couple separated when they continued to live in the same home can be much tricker. A court has to look at several factors, such as when they started sleeping in separate beds when they stopped going out and vacationing together when they stopped sharing money – but the real test is whether an objective person, looking at the couple, would say that their marriage is over, even though they are living at the same address.

In most circumstances, it is not possible to get a divorce less than a year after separation. Section 8 of the Divorce Act does allow spouses to be divorced without waiting a year in cases of adultery or cruelty, but those allegations must be proven in court and the process of getting to trial to prove those allegations usually takes more than a year. Consequently, it is usually better to just base the divorce on separation for a year and get it almost automatically rather than going through a complex court proceeding. The steps in a court proceeding are set out starting with this episode of the Ontario Family Law Podcast, and the video below. 

Another reason to wait a year to get a divorce is section 3(1) of the Divorce Act prohibits Canadian Courts from taking jurisdiction to grant a divorce until at least one spouse has lived in the same province as the Court for at least one year. An Ontario Court will not even let a spouse ask for a divorce until at least one spouse has made Ontario his or her home for at least a year. So, you cannot come to Canada and immediately ask to divorce your spouse. You must wait a year.

However, if you were duped into marrying someone, such as when someone wanted to immigrate to Canada and tricked someone into a wedding, it is not necessary to wait a year. If one or both spouses did not intend to get married, then their marriage is invalid. This happens when one spouse does not want to be married, but goes through the ceremony for other reasons. Often those can be dishonest reasons. If a judge believes that one spouse did not really mean to get married, the judge can declare the marriage invalid. This is called an “annulment” and it has the effect of making it as if the spouses were never married under the law. They may still be considered common law though. There is no waiting period to get an annulment.

An annulment, which says a marriage is not valid, particularly an annulment that is based on the marriage just being a sham to allow someone into Canada, can have serious immigration consequences. So, speaking to an immigration lawyer before seeking an annulment is an excellent idea.

Also, not living separate and apart for a year, or not living in Ontario for a year does not mean that a spouse cannot get help from the Family Courts. Important issues like restraining orders, child support, spousal support or parenting orders often cannot wait a year. There may be issues that need to be fixed immediately. Although it may not be able to get those Court Orders as part of a divorce, Ontario’s Family Law Act allows the Court to make those types of Orders for people who have lived together or parented a child together, with another person. Until a divorce is available, the Family Court can make orders as if the separated couple or parents were living common law. Family Courts can make parenting orders and child support and spousal support orders for separated common-law couples. They can also make some types of special property orders, but not property equalization orders, for common law couples.

So, if you need a Family Court Order to protect yourself or your children, you should speak to a Family Lawyer right away.

There are some other things that can prevent someone from getting divorced in Ontario.

The first obstacle, especially when the other spouse lives outside Canada, is that to get a divorce, the other spouse must be served with the Court proceedings. However, Rule 6(4.1) of the Family Law Rules prohibits one spouse from serving the other spouse – someone else has to do it, often a process server. That means finding the other spouse and arranging for someone to hand the court document directly to the other spouse.

Not only that but where the other spouse does not live in Canada or the United States but lives in a country that is a party to The Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, the spouse in Canada must serve the spouse in the other country following the rules in that treaty. A list of those counties is found here. That means using the “central authority” in the other country to effect the service. Many central authorities are not well funded and especially for countries with very large populations, they can take a really long time to serve court documents – often many months. Some of the central authorities serve more quickly when the government official is asked by a friend to do it. But, even that can be tricky to navigate. Unfortunately, the Canadian Courts cannot change the terms of the treaty so service must be done through the central authority of the other country.

When the other spouse lives in a country that is not a party to the Hague Convention on the service of court documents, you can have your spouse served there in a similar way to how you would have them served in Canada, the only difference is that they have longer to respond. Even though the spouse seeking the divorce may not want the other spouse to respond to get the divorce faster, when serving outside of Canada or the United States, that spouse will have to wait longer to get divorced.

If there are children in the marriage section 11 of the Divorce Act says that a judge should not grant a divorce if appropriate child support is not being paid. Appropriate child support in Canada means child support that follows the tables or has the same benefit to the child as support under the tables. If child support is not being paid in accordance with the Child Support Guidelines, judges will usually not grant the divorce. So, getting a divorce probably means also dealing with child support. Again, the Ontario Family Law Podcast covers child support in detail, and the video below provides a summary. 

Section 2 of Ontario’s Family Law Act also allows a judge to dismiss a family law proceeding if one spouse has not removed all of the religious barriers to remarriage that are within that spouse’s control. So, a judge can deny a divorce if the spouse asking for it is somehow preventing the other spouse from getting remarried in their religion. Some religions do not allow remarriage, but those religious beliefs do not prevent a civil divorce because the religion, not the spouses, is preventing the religious remarriage.

Section 11 of the Divorce Act says that a judge must deny a divorce if the judge believes that the request is part of some broader fraud against other people – for example, if a happily married couple wanted to divorce to equalize their assets before a creditor could go after one of them.

The fastest way to get a divorce is for the other spouse NOT to contest it. The other spouse does NOT have to agree. They just have to ignore the divorce application after being properly served. Then the spouse seeking the divorce only has to wait 60 days so that the Ontario Court knows that the other spouse is not going to contest it. A spouse in another country can contest the divorce, but will not be successful unless they can prove one of the reasons for denying a divorce that I already mentioned. A spouse in another country can also ask for the Ontario Court to make Orders in his or her favour, such as for support or property division. In some cases the Orders available to them under Ontario Law are much more generous than they could get from the Court where they are living – although it can be difficult for those spouses to make it to Canada to prove their claims in court. Still, it is something to consider when deciding whether to get divorced in Canada. 

But, if you live in Canada, you can not only get a divorce, but help with parenting plans and orders, child and spousal support, property division and restraining orders in Canada, either from a Canadian Court or with the assistance of lawyers through negotiation, mediation, arbitration or collaborative law.

John Schuman Guide to the Basics of Ontario Family Law book cover

You can get a lot more information about Ontario Family Law issues, including a comprehensive explanation of parenting cases (parenting time and decision making), child support, spousal support, property division, and most other common family law issues by downloading this $9.99 Kindle eBook, Kobo eBook, or iBook for your iPad or iPhone or ordering it from Amazon as a paperback. But to understand how the law works precisely in your situation, it is always best to speak to a good Family Law Lawyer.

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