Introduction to Divorce

Are you considering Divorce, or have you recently been served Divorce papers? If so,
then Divorce Canada can help. We will outline for you the actual act of getting a Divorce,
explain the different types (Fault vs. No fault / Contested vs. Uncontested) and then help
you to understand the valid grounds for filing a Divorce in Canada
The Act of Getting a Divorce in Canada
When a marriage is over the only way to legally end your relationship is to be granted a
Divorce. In Canada it is not required that both parties want their marriage to end in order
for a Divorce to be granted. It is only necessary that one party prove that the marriage
has broken down and can not be repaired. The process of proving that a marriage has
broken down is quite often referred to as “Grounds for Divorce”. We will explain the valid
grounds for Divorce in Canada, further down this page.
Throughout Canada every Divorce is governed by the Federal Divorce Act. However,
each province will vary on the specific documents and procedures used for their
individual jurisdiction. This is just one of the reasons that it is best to contact a lawyer
specializing in family law, when seeking a Divorce in Canada. A local lawyer will be
familiar with the Family Law Act and all of the procedures in your province or jurisdiction.
They will review your personal circumstances and then explain all of your obligations
during a Divorce, as well as ensure your rights are fully protected.
Types of Divorce
In Canada there are two types of Divorce; a Contested Divorce and an Uncontested
Divorce.
Contested Divorce: In a Contested Divorce spouses do not agree. Their disagreements
can be about the Divorce itself, or about the terms of the Divorce. (Terms such as:
custody, access, support and property/debt division.) In a contested Divorce lawyers
must be retained and the courts must intervene.
Uncontested Divorce: In an Uncontested Divorce both spouses do agree and have
signed a separation agreement to resolve all issues surrounding their Divorce. Issues
such as: custody, access, support, property/debt division etc. Also, both parties want to
proceed with ending their relationship and agree to the Divorce itself.
In most cases Uncontested Divorces proceed faster and are much less stressful and
costly then Contested Divorce.
Grounds for Divorce in Canada
Under the Divorce Act there is only one valid reason for a Divorce and that is “Marriage
break down” It is necessary that at least one party prove that the marriage has broken
down and can not be repaired. Currently there are three acceptable grounds which are
used to prove this breakdown.
They are:
 Adultery – One or both partners committed adultery by having sex with someone
else during their marriage. After the adultery had occurred, and was discovered, the act
was not forgiven, or the couple did not live together for more the 90 days.
 Abuse/Cruelty – Your spouse has been physically or mentally cruel and/or
abusive to you.
 Separation – A period of no less then one full year has passed where you and
your spouse have lived separate lives.
To learn more about the acceptable methods of proven a marriage breakdown in
Canada please visit our Understanding the Grounds for Divorce in Canada page.
Who can apply for a Divorce in Canada?
In order to apply for a Divorce in Canada you must meet the following criteria:
 You were legally married. This can be in Canada or in any other country;
 Either or both of you have lived in a Canadian province, or territory, for at least
one year immediately before applying for a Divorce
 You intend to separate permanently from your spouse and believe that there is
no chance you will get back together, or you have already left your spouse and do not
intend to get back together.
What is your next step?
If you are considering a Divorce, or if you have been served with Divorce papers, it is
always best to contact a local lawyer who specializes in family law. A lawyer will review
your case, guide you through the entire Divorce process and ensure your rights are fully
protected.
Now that you understand the act of Divorce, the two types in Canada and the approved
grounds for filing a Divorce in Canada, next you will need to understand the Divorce
Process in Canada.

A common request among separated spouses is: “I would like an uncontested divorce.”
What does an “uncontested divorce” mean?
While an uncontested divorce is often perceived as one in which the divorce claim itself
will not be contested, in fact, an uncontested divorce is one in which there are no
additional issues to be resolved prior to or tied up with the granting of the divorce by the
Court.
What does this mean for a spouse who just wants a divorce?
Unfortunately, if there are other issues arising from the separation, for example child
support or property division, it may be advisable that a Separation Agreement dealing
with these issues be entered into first so that the divorce may then be claimed on an
uncontested basis.
What are the steps for an uncontested divorce?
If the divorce claim is proceeding on an uncontested basis, once the spouse is served
with the Application for divorce and does not respond, the subsequent steps are taken
without the participation of the other spouse. These steps include:
1. Swearing an Affidavit in support of the divorce claim, which includes a statement
as to the parties having been separated for at least one year;
NOTE: If there are dependent children involved, the Court must be satisfied, in accordance
with the Divorce Act, that reasonable arrangements have been made for child support. The
issue of child support if relevant is also addressed in the Affidavit noted above.
2. After the Affidavit is sworn and filed with the Court as part of the spouse’s Motion
for divorce, if successful, a divorce Order will issue;
3. Thereafter, following a short waiting period, the spouse may apply for a
Certificate of Divorce which confirms that no appeal has been taken from the divorce
Order and the spouses are free to remarry.
What happens if a Court Application is commenced in which a spouse
seeks not only a divorce but other relief as well?
In this case all of the issues are tied with the divorce such that it is then necessary to
either (1) resolve the other issues first before pursuing the divorce or (2) obtain an order
“splitting” the divorce from these issues, so that the divorce can then proceed on an
uncontested basis as described above.
What happens if an Application for an uncontested divorce is commenced
while the other issues remain unresolved?
A separated spouse will often do this in the hope of saving time and money, however
there is the possibility that the other spouse will respond seeking relief in respect of the
unresolved issues. The first spouse would then need to “re-do” their paperwork to deal
with these other issues. It is for this reason that it is normally advisable to deal with the
other issues first before seeking an uncontested divorce.
What is the typical cost of an uncontested divorce?
Typically lawyers charge a flat fee for uncontested divorces plus disbursements ($1,500
to $2,000 would be average) however if the divorce originally presumed to be
uncontested becomes contested, then a client should expect to be charged extra at the
lawyer’s hourly rate.
How do you best protect your interests and your children’s interests?
The issues in a marital breakdown other than a divorce are very important. All of the
available options should be discussed with a lawyer before any decision is made as to
the best way to proceed.
(The information provided above is general, not legal advice, as circumstances vary
from case to case. As well, generally speaking, the above information relates to Ontario
law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you
are making inquiries where Ontario law may not apply, please contact a family lawyer.)
Divorce Laws by Province
In Canada all Divorces are governed by the Federal Divorce Act. However, each
province has its own individual provincial Family Laws which will affect your Divorce in
some manner. To help you get an overview of Divorce in your province, we have
compiled a list of different provincial government websites. These sites will allow you to
read and complete some research on your own, to help you better understand the
process of filing for a Divorce in your Province. A local lawyer will also be familiar with
the Family Law Act in your province, and will be able to guide you through the entire
Divorce process.
Resources for Divorce in Canada: By Province
Divorce British Columbia: In BC the provincial act that covers Family Law is the Family
Law Act of BC. For details about this act and information on Divorce in BC, you can visit
the British Columbia Ministry of the Attorney General site.
Divorce Alberta: There are several different acts that govern family law in Alberta.
These acts are all outlined on the Government of Alberta Website
Divorce Saskatchewan: There are several different acts that govern family law in
Saskatchewan. These acts are all outlined on the Courts of Saskatchewan website
Divorce Manitoba: There are several different acts that govern family law in Manitoba.
These acts are outlined on the Government of Manitoba website.
Divorce Ontario: There are several different acts that govern family law in Ontario.
These acts are outlined on theOntario Ministry of the Attorney General website.
Divorce Quebec: Québec Civil Code governs Divorce in the province of Quebec. For
full information about Divorce in Quebec you can visit the Quebec Provincial website.
Divorce New Brunswick: For full information about Divorce in New Brunswick and for
answers to commonly asked questions. You can visit Family Law NB. This is a site
created by the Public Legal Education and Information Services of New Brunswick. It is
an online resource regarding family law in New Brunswick.
Divorce Nova Scotia: For information about Divorce in Nova Scotia you can visit
the Nova Scotia Family Law information center. It is the family law section of the
Government of Nova Scotia website
Divorce P.E.I : For information about Divorce and Family Law in PEI, you can visit
the Family Law section on the Prince Edward Island Provincial Website. Or download a
copy of the entire PEI Family Law Act.
Divorce Newfoundland: For information about Family Law and Divorce in
Newfoundland you can visit the Newfoundland and Labrador Department of
Justice website.
Divorce Yukon: For complete information regarding Divorce in the Yukon, you can visit
the Yukon Department of Justice Website.
Divorce North West Territories & Nunavut: The provincial law that covers Divorce in
Nanavut and NWT is The Child and Family services Act. You can find a copy of this act
on the Law Society of Nunavut website. Under the frequently consulted documents
section.
The above sites will provide you with information regarding Divorce in each province,
and the specifics of each Provincial Family Law Act. You can also visit our Introduction
to Divorce page for general information about filing for a Divorce in Canada, or
our Divorce Process in Canada page to get a step by step guide on how the Canadian
Divorce process works.
At Divorce Canada, our goal is to be an easy to understand and reliable resource for
anyone seeking information regarding Divorce in Canada. However, our site is not
intended to be a substitute for the advice and guidance of a lawyer. Since Divorce can
be very complex, it is always best to contact a family law expert in your area to obtain a
professional review of your individual situation.

Divorce

 8 (1) A court of competent jurisdiction may, on application by either or both

spouses, grant a divorce to the spouse or spouses on the ground that
there has been a breakdown of their marriage.
 Marginal note: Breakdown of marriage
 (2) Breakdown of a marriage is established only if
o (a) 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
o (b) the spouse against whom the divorce proceeding is brought
has, since celebration of the marriage,
 (i) committed adultery, or
 (ii) treated the other spouse with physical or mental
cruelty of such a kind as to render intolerable the
continued cohabitation of the spouses.
 Marginal note: Calculation of period of separation

(3) For the purposes of paragraph (2)(a),

o (a) spouses shall be deemed to have lived separate and apart
for any period during which they lived apart and either of them
had the intention to live separate and apart from the other; and
o (b) a period during which spouses have lived separate and
apart shall not be considered to have been interrupted or
terminated
 (i) by reason only that either spouse has become
incapable of forming or having an intention to
continue to live separate and apart or of continuing to
live separate and apart of the spouse’s own volition, if
it appears to the court that the separation would
probably have continued if the spouse had not
become so incapable, or
 (ii) by reason only that the spouses have resumed
cohabitation during a period of, or periods totalling,
not more than ninety days with reconciliation as its
primary purpose.

How to File for Divorce: The Step by Step Process

How to File for Divorce in Canada
Divorce in Canada is governed by the federal Divorce Act. However, the way a divorce is
administered, and all the procedures and documents used to complete it, differ by
province or territory. To find information about divorce in each specific province/territory
please visit our provincial pages.
General Overview of the Divorce Process in Canada
Step 1: Decide to Divorce and separate from your spouse.
Step 2: Obtain a divorce application. Each province and territory has their own set of
forms. You can get the correct forms for your jurisdiction through a lawyer, bookstore,
court office or family law information center.
Step 3: Determine your grounds for filing for divorce. Will it be a no fault or for fault
divorce?
 No-fault divorces require a completion of a 1 year separation period.
 Fault divorces are filed under the grounds of adultery or cruelty. In these types
of divorces you are required to provide evidence to substantiate your claims. Be sure to
carefully research “for fault divorces” and retain legal representation if this is the way
you choose to file.
 Step 4: Determine if your divorce is contested or uncontested and specify the type of
divorce on your application.
 Uncontested divorce: both partners agree to the reasons and terms of the
divorce. These divorces need only one application.
 Contested divorce: spouses do not agree on the reasons and/or terms for the
divorce. In this case, both spouses are required to file a separate divorce application.
Step 5: If there is a child/children involved, include an outline of your parenting
agreement, custody, support etc. For a contested divorce each spouse will need to
supply their preferences for parenting. For an uncontested divorce you simply outline
your agreed arrangements.
Step 6: File the divorce application/applications at the courthouse in the
province/territory in which you reside; or through your lawyer. Each province/territory has
a different fee associated with these applications and some places may have additional
formalities that you must follow in order to correctly complete the application process.
The clerk at the court, or your lawyer, will be able to guide you through this.
Step 7:Wait for clearance from the Divorce Registry in Ottawa. During this time conduct
yourself and your services according to the rules of the court procedure. Once divorce
papers have been served to your spouse they then have 30 days from the day they are
served, to respond to the Divorce. Application
Step 8: After 30 days are up, if there is no answer filed by your spouse, you can then set
down your divorce with the court by submitting your Affidavit for Divorce, Divorce Order
and Clerk’s Certificate.
Step 9: Wait for notice of the courts decision to grant you a divorce. A judge will review
all the material and if satisfied, they will issue you a Divorce Order.
Step 10: You can obtain your Certificate of Divorce 30 days after the Divorce Order is
granted. Only then will you be legally divorced and entitled to remarry.
When filing for Divorce in Canada many people have issues regarding child custody,
support, property/assets and the steps surrounding the Divorce Process. Filing for
divorce in Canada can be done without a lawyer. However, contacting a lawyer who
specializes in family law in your province is always the best way to ensure that you
rights, children and future are properly protected.