An Introduction to Divorce



Aaron M. Franks and Kristin M. Whitley for The Lawyers Weekly

Most Canadian Lawyers Acknowledge that Many People are Unaware of How to Divorce

Divorce Lawyers realize that how to divorce can be difficult to understand by many people. This is why Divorce Lawyers try to help negotiate and mediate fair settlements without any confusion, while keeping your needs in mind. Canadian Lawyers that specialize in divorce typically help outline the three reasons why Canada grants a divorce to legally married couples, including same-sex marriages. The reasons include: living apart for one-year, adultery and cruelty.

Divorce Lawyers are trained in helping you manage and decipher the specific period limitations of these three reasons to divorce. These Canadian Lawyers are also taught to know every divorce regulation and remind you of them if this becomes difficult for you to follow. Unfortunately if adultery or cruelty is involved, your Divorce Lawyer may aid in helping you acquire specific proof in order to obtain an immediate divorce.

Whether or not a divorce in Canada is legally possible to obtain, is another common inquiry of some married couples seeking advice on how to divorce. A Divorce Lawyer’s job entails letting you know if it is legal and worth your effort to divorce in Canada by examining your marital history and documents. These Canadian Lawyers also provide information on how to divorce properly if this becomes an issue.


A Divorce Lawyer Ensures That the Separating Process Is As Fast As Possible

Canadian Lawyers involved in divorce settlements realize that families usually include children. For this reason, they try to provide the easiest method of how to divorce without harming everyone involved. Property rights and child support are taken seriously amongst Canadian Divorce Lawyers. Therefore, through their negotiating and mediating skills a fast and painless divorce is possible to achieve.

As Aaron M. Frank’s and Kristin M. Whitley’s divorce lawyer article from The Lawyers Weekly states, there are essentials to know how to divorce successfully. In order to understand what is the best method for you, please consult a Divorce Lawyer before making any vital decisions. Through our FREE online legal directory you can also choose an experienced Divorce Lawyer that will help you manage your separation diligently.

A divorce is an order of the court declaring a marriage between two spouses to be at an end.

Why you may need a divorce?

You will need a divorce to legally end a previous marriage so as to remarry.

Who can get divorce in Canada?

Only married spouses can be or need be divorced in Canada.

Common law spouses, by definition have not been married and do not need to be (and cannot be) divorced.

 In light of the recent Supreme Court of Canada decision, married spouses now include married same-sex couples. Couples in Canada who are either of the same-sex or the opposite sex and are not married are called common law spouses (provided they meet the requirement of continuous cohabitation for three years or are the parents of a child cohabiting in a relationship of some permanence).

The definition of spouse varies depending on the particular part of the legislation and you should be careful to ensure that the applicable definition of spouse includes your situation.

Grounds for a divorce in Canada

In Canada, there are three grounds on which you can obtain a divorce:

  • Living separate and apart for one year
  • Adultery
  • Cruelty

There is no limitation period for a divorce in Canada but there are limitation periods for making some of the claims discussed below. You should consult your local Canadian divorce lawyer so that you are aware of any limitation periods.

Separate and apart for one year

Married couples who have lived separate and apart for at least one year with no reasonable chance of reconciliation can obtain a divorce in Canada on those grounds. Spouses must not have reconciled for a period or periods totalling more than 90 days during this year. If spouses do reconcile for more than 90 days, the commencement date for the one year period starts over.

The date that the parties commenced living separate and apart is referred to as the date of separation or valuation date and is a factual determination based on the couples' relationship. However, it is important to note that in Canada, parties can live separate and apart under the same roof. That is, there need not be a physical separation if the parties are in fact living separate and apart. It can often be a difficult task to determine the exact date of separation.

Adultery and/or cruelty

These grounds for divorce in Canada are remnants from the old fault-based system. They are infrequently used. You can obtain a divorce in Canada on either of these grounds without waiting for one year, which means that technically you can obtain a divorce immediately once the claim is proven. However, these grounds are usually contested and can be very difficult to prove in court. Given such claims are likely to be opposed, you likely will not obtain a divorce in Canada on either of these grounds before the one year period is over in any event.

Jurisdiction to be divorced in Canada

Spouses do not need to have been married in Canada to obtain a Canadian divorce. If you are legally married, the only requirement to obtain a divorce in Canada is that at least one of the spouses must have been ordinarily resident in the province in which the divorce is claimed for the preceding year.

Dealing with custody and support (child and spousal) in Canada

Aside from obtaining a divorce in Canada, separated spouses, including common law spouses, must deal with a number of issues arising from the breakdown of their relationship. There are time limits for some of these claims and parties should be very careful not to miss the applicable limitation periods.

Parties who have children together must deal with the issues of custody, access, and child support. Prior to granting a divorce, the court must be satisfied that reasonable arrangements for the support of the children have been made. Custody arrangements dictate who will make the major decisions regarding the children and access arrangements determine where the children are going to live. Child support in Canada is based on income and is dictated by the applicable Child Support Guidelines.

Spousal support is based on a number of factors, including need and ability to pay. The Department of Justice has recently introduced the Spousal Support Advisory Guidelines which are not mandatory but advisory.

Property Issues in Canada

Separated spouses must deal with the issues of property division and possession of the matrimonial home. These issues only apply to married spouses. Common law spouses have no property rights per se. Generally, the legislation provides for a mechanism called "equalization," whereby the spouses equally share their combined increase/decrease in their net worth during their marriage.

Procedure

Parties can deal with the issues of custody, support, and property before or after the expiration of the one year period. There are many ways that parties can deal with these issues, such as through negotiation, mediation and/or arbitration of a Separation Agreement, by court proceedings, or through Collaborative Family Law.

Parties can only obtain a divorce by commencing a court application. This application can be started before or after the one year period but a divorce in Canada will not be granted until the one year has expired. The divorce judgment becomes effective 31 days after it is granted.

This introduction is not meant to be legal advice and should not replace a discussion with a divorce lawyer. You should consult divorce lawyer to ascertain your legal rights and obligations if you are separating or if you are separated if you have any questions or concerns.

Aaron M. Franks and Kristin M. Whitley are lawyers with Epstein Cole LLP in Toronto, Ontario.


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