More than 150,000 couples get married every year in Canada. While this can be an exciting day for everyone involved, not all marriages will last. As couples change and experience the stresses and strains of daily life, some relationships will meet a natural end and this can be a good thing for both partners’ long-term happiness.
In fact, 38% of Canadian marriages end in divorce — so if you are thinking about getting a divorce you are in good company. This is the perfect way to legally acknowledge your separation and can help everyone involved move forwards with their life.
So what does the divorce process involve in Canada? Well, there are different types of divorce that you should know about. You may also need to arrange the division of matrimonial property, child support, and child custody.
Fortunately, there’s no need to feel overwhelmed — our handy guide to divorcing in Ontario is here to help! Read on to find out everything you need to know about the steps in a divorce.
Make Sure That You Meet Canadian Divorce Criteria
Before you can begin the divorce process in Canada, you have to meet certain criteria. You’ll also need to understand the different grounds for divorce. Let’s take a closer look at these.
To get divorced in Canada you and your partner must have been legally married under Canadian laws. Alternatively, you can be married under the marriage laws of a country that Canada recognizes.
You also need to have been living in a Canadian province or territory for a minimum of one year before you can make your application. However, both you and your spouse do not need to be living in the same province or territory.
Finally, your marriage must have broken down. There are several legal ways to identify that a marriage has broken down and these are known as your grounds for divorce.
Grounds for Divorce
A marriage breakdown is the only reason you need to file for divorce in Canada. This can happen if:
- You and your spouse have lived apart for at least one year.
- Either spouse has been physically and mentally abusive.
- Either spouse has committed adultery.
If you have been living apart, you are legally allowed to reconcile for up to 90 days. If you do not work through things during this time then you can continue with the divorce process straight away.
Understanding Different Types of Divorce
While marriage breakdown is the only reason Canada allows for divorce, there are different types of divorce that you might come across.
The grounds for divorce in Canada make all divorces no-fault divorces. This means that your marriage has broken down according to one of the legal definitions given above.
Contested vs. Uncontested Divorces
If you and your spouse both agree that divorce is the right option for you then you are likely to go through an uncontested divorce. This is sometimes known as a simple divorce and means that both parties are willing to engage in the divorce process.
However, your ex-spouse or a court may disagree with your grounds for divorce. In that case, you will be dealing with a contested divorce and may need to provide evidence to support your grounds.
Starting the Divorce Process
When starting the divorce process, it is a good idea to get help and advice from an experienced family lawyer. They will be able to explain the laws to you and can advise you on how to protect yourself and your assets during a divorce.
In order to formally start the process, you need to fill out a series of forms. You need to make sure that the forms you fill out are valid for the province or territory in which you are living.
These should be available from private and government bookstores and court offices. Or you may be able to download them directly. If you have hired a divorce lawyer, they will get the forms for you and help you fill them out.
These forms require information, such as the date of your marriage and the grounds for divorce. However, you also need to outline certain requests or decisions that you have made for life after your divorce.
This includes the division of assets, financial settlements, and child support. Let’s take a closer look at these.
Deciding on Child Custody and Child Support Arrangements
If you and your spouse have children then you will need to arrange a child custody plan for after your divorce. This may be informal but most people include their plans in their divorce forms.
The custody arrangement details:
- Living arrangements for your children
- How much access each parent has to their children
- How decisions about the children’s future will be made (either as a joint or sole arrangement)
- The amount of child support either spouse is expected to pay
Usually, child support is paid if one parent is taking on a larger share of child care or if the children are going to live with them full-time.
Division of Matrimonial Property
Throughout your marriage, you will have naturally accrued a certain amount of matrimonial property. During a divorce, you have to decide who is going to keep which items of property. This is known as dividing assets in a divorce.
Some items will be easier to divide than others. For example, you may find it easy to divide furniture or artwork between one another. However, if you own property, deciding who keeps it can be more difficult.
In your forms, you can list your reasons for wanting to claim certain items. For example, the parent who is going to look after the children most of the time has a good claim to the family home (if you have one.) You can also use this form to propose financial buy-outs in exchange for certain valuable items.
Serving Divorce Papers
Once you have completed your forms you need to file them at a courthouse in the province or territory that you are living in. You may have to pay court filing fees when you do this.
After filing your application, your ex needs to be served with a copy of the documents that you have filed along with a blank Form 10: Answer. They use this form to respond to your divorce application.
It is very important to note that you are not allowed to serve your ex-partner with the documents yourself. Instead, someone you know or a professional server needs to deliver them in person. The server needs to be at least 18 years old and will need to fill out a form to confirm that they served the divorce papers.
Reaching an Agreement With Your Ex-Partner
Once your ex has received the divorce papers, they have got 30 days in which to respond to them. They can use this time to contest the terms laid out in the divorce papers, usually with the help of their own divorce lawyer.
To speed the process up, you can discuss terms, such as property division and child custody arrangements, before filing your application.
If your ex does not respond (either through their own fault or by choice) your divorce will be finalized on the terms laid out in your application. To finish finalizing your divorce you will need to complete the following forms:
- A Certificate of Clerk (Divorce)
- An Affidavit for Divorce
- A Divorce Order
These need to be delivered to the courthouse where you filed your application. You should also include stamped and addressed envelopes so that the court can send you your divorce orders. Before the court reviews your divorce you will also need to pay a court fee.
Provided that the court approves your application you will receive a divorce order signed by the judge in the mail. This is valid from 31 days after the date that the judge signed it. After this date, you can request a certificate of divorce from the courthouse.
What Happens If You Don’t Live in Canada?
If you and your partner are no longer living in Canada then you won’t be able to use the Divorce Act to process your divorce. However, you may be able to get divorced using the Civil Marriage Act provided that:
- You got married in Canada
- The country you are living in does not recognize your Canadian marriage
Divorces using the Civil Marriage Act require approval from Canadian Superior Courts so it is a good idea to get help from a lawyer.
Get Help With Filing for Divorce
As you can see, the Canadian divorce process involves a fair bit of paperwork no matter what type of divorce you are getting. This is why, if you are divorcing in Ontario, it is a good idea to get support from an experienced lawyer.
They will be able to help you with everything from child support and child custody to the division of matrimonial property. So what are you waiting for?
Get in touch to speak to an Ontario divorce lawyer today. We’re happy to help!
Minhas Lawyers LLP is a multi-practice law firm based in Mississauga. We advise and represent clients across various segments and practice areas.
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