Divorce is the process of legally ending a marriage or civil union. The dissolution of a marriage can be a difficult and complex process, fraught with strong emotions, acrimony, negotiations and waiting. It can also be a time of personal growth, embracing change and liberation. In Canada, divorce law has been regulated exclusively by the federal Parliament since 1968.
Under the 1986 Divorce Act, either party in a Canadian marriage or marriage legally recognized by the Canadian government is allowed to file for divorce, or the couple can file jointly to dissolve the marriage. The law specifies that that the sole grounds for divorce in Canada is the breakdown of the marriage. This requires evidence in the form of the parties living separately for a full year prior to the divorce proceedings, or it can be supported by either party engaging in adultery, or physical or mental cruelty during the marriage union. In Canada, the right to divorce has been extended to same-sex marriages since 2005.
It has been said that every marriage is unique, and so too is the divorce process. Fortunately, as a matter of law, the stages of divorce law follow a predictable path. Although the total amount of the time that the process of divorce takes depends on how things proceed and the nature of the divorce. Generally in Canada, an uncontested divorce most often takes between four and six months to be finalized.
The eight stages of divorce in Canada are as follows:
1. Deciding to divorce
This is one of the earliest stages of divorce, where one or both parties in a marriage make the decision to divorce and separate. Separation is essential to the process. It can be difficult making this decision. Current Statistics Canada data shows that nearly 38 per cent of all Canadian marriages end in divorce, which is down from the all-time high of 41% in the 1980s.
Interestingly, the Canadian divorce rate is considerably lower than that in United States, where the rate hovers closer 50%. It is also well below the highest divorce rate in the world, which is held by the Maldives, a conservative Muslim country made up of 1200 islands in the Indian Ocean. According to reports from the UN, people in the Maldives experience close to 11 divorces for every 1,000 inhabitants every year. The average 30-year-old Maldivian woman has been divorced three times!
2. Obtaining a divorce application.
In Canada, divorce forms are prepared by each territory and province, and they vary. Applications for divorce must be submitted within the province in which the parties primarily reside. You can find the correct forms from your province or territory from a court office, family law information office, bookstore, or through an attorney.
3. Finding an attorney
While it is possible to file for divorce in Canada without a lawyer, representation is generally recommended. A skilled family and divorce lawyer guides parties through the divorce process from the beginning of the separation. An experience family and divorce lawyer will help with issues of child support, arrangements for custody and parenting, spousal support and division of property.
More importantly, they can secure your negotiating power, protect your interests, and secure a settlement that is in your best interests. Find an attorney who understands your needs and provides peace of mind.
4. Making decisions regarding the type of divorce
During this stage, the divorcing party or parties decide on the type of divorce and determine the grounds for filing for divorce. Is a fault or no-fault divorce? In no-fault divorces neither spouse is required to prove cause in the form of misconduct (fault) on the part of the other spouse in the ending of the marriage. These divorces require that a full year separation period be completed before the divorce can be finalized. Fault divorces require evidence to prove adultery, or physical or mental cruelty on the part of one spouse.
As a rule, fault divorces are complex and often require legal representation for both parties. The divorce application also has to indicate whether or not the divorce is contested. In an uncontested divorce, both spouses agree about the reasons for the divorce and terms going forward. If the spouses do not agree on the reasons or terms of the divorce, it is a contested divorce and both parties must file separate divorce applications.
5. Making parenting arrangements (if applicable)
The stages of divorce are made more complicated whenever there are children involved. Divorcing parents have to provide an outline of the planned parenting agreement, including plans for child custody, education and child support. In a contested divorce, each of the parties will outline their desired arrangements separately.
6. Filing the divorce application or applications
Divorce applications can be filed at a local courthouse in the province or territory that you live. They can also be filed through your attorney. Fees vary by province/territory, and there may be additional procedures to follow according to local law. Your attorney or the court clerk will provide any additional information.
There is necessarily a lot of waiting involved in the stages of divorce. Every stage of the legal proceedings is subject to a period of time for paperwork to be submitted and reviewed. The Divorce Registry in Ottawa has to provide clearance for all divorce applications. Papers are then served to your spouse.
After this, your spouse has 30 days from the date of receipt of the papers to respond to the divorce application. If after the 30 days, the spouse does not answer the application for divorce, the divorce can be submitted to the court through an Affidavit for Divorce, Divorce Order and Clerk’s Certificate.
8. Divorce Order
A judge will review all of the materials and the court will make a decision about whether to grant the divorce, known as a Divorce Order.
9. Certificate of Divorce
30 days after the Divorce Order is granted, a Certificate of Divorce becomes available. The Certificate of Divorce finalizes the divorce. At this point, the marriage is ended, and both parties are legally divorced and eligible to marry again. You can request this document through provincial authorities, or have your attorney do so.