How to seek divorce under Canadian law

The Divorce Act is the federal law in Canada to govern divorce cases. In addition to the procedure set for divorce, this act also lay emphasis on child support, spousal support and parental arrangements for children.

Introduction

In Canada, a court is the only judicial body in which a civil divorce can be filed. Either of the spouses can apply for divorce by giving the testimony that the marriage has broken down as per Section 8(2) and an individual has arranged for the maintenance for their children. For the divorce filing, any one of the spouse should be in any province of Canada. Otherwise application stand cancelled if neither of the spouses resides in Canada while filling. However, for filing divorce, different laws would prevail in provinces or territorial laws. Sometimes, different provinces also address some issues, such as division of marital property.

Types of Divorce

  • Single divorce
  • Double Divorce

In the first case, divorce is filed by one of the spouse or both without any claims such as child custody, spousal support, and access. However, in second case; divorce is sought after claiming on certain terms such as spousal support, child custody, division of property or alimony. In both of applications, hiring a divorce attorney is not always a requirement. Couple may apply for a divorce online. These self- representation cases are permissible where there is no minor child, both the spouses are financially stable, no domestic violence or criminal record, can share property amongst them. However, a lawyer is strongly recommend if other spouse has a criminal record, there is a dispute over property or child custody, the spouse has a mental illness or physical disability, spouse is hiding assets, threatening the other spouse to run off with children, other spouse’s lawyer is aggressive, acrimonious. Although apart from attorney or lawyers, there are some ways to get divorce such as involvement of third party such as meditator or arbitrators. Meditators help the spouses to pursue corollary relief proceeding as well such as division of assets, share in property. Some meditators also resolve issues like child protection disputes.

Procedure to fill an application

There is a prescribed procedure for filing as given in Section 2(1)(a) of the Divorce Act – either of the spouse needs to fill an application in which province they are residing, spouses must have been living apart for at least an year, one of the spouse is physically or mentally cruel to the other, one of the spouse might have done adultery which Family law in Canada has declared to be a crime. The application can be filled as soon as the couple is separated and are living apart. However, for the divorce to be granted, at least one year is to be shown as the time period for which spouses are living apart. Also, the law pertains that 90 days are to be given to the couple to make an effort to reconcile. If the matters get worse, spouses can continue with the virtue of divorce procedure as if they had never spent time together according to Section 10(1).

In case the couple has children, child support and parenting arrangement are to be done. For the child support, guidelines would be applicable depending on federal, provincial, or territorial law.  The federal guidelines would apply unless they are designated provinces where provincial laws would be applicable in child support given under section 5. There are three provinces- Manitoba, New Brunswick, Quebec where provincial guidelines would pertain wherein both parents had lived there. The federal guidelines versus provincial guidelines have to be understood in a simple form- as where parents live apart other than designated provinces; then federal guidelines would prevail whereas couple live apart in the same designated provinces, then provincial guidelines would prevail. In case parents live in different provinces, even though one or both of them are designated provinces the federal guidelines would be applicable. And if the couple live in two different countries, Canada Federal Divorce’s Act would be taken, however different country guidelines in divorce cases might also be applicable.

Nevertheless, it starkly contrasts when unmarried couple is filing for child support and both of them live in Canada, in those cases, provincial or territorial laws would be applicable. The next step comes in for child support, the number of children looking for support and their age. Even if it is your child or adopted one, parents need to support unless he/she is standing on his/her feet. For deciding the amount to be provided by the parents including step-parents age, circumstances, needs, ability to contribute financially are a few factors on which it depends.

Child Custody

The third federal guidelines are the parenting arrangement, whether it is a sole custody, split custody and shared custody. For child support purposes, this refers to time that each child spends with their parent. Sole custody refers to the arrangement where the child spends 60% more time with one parent over the other in the course of one year. On the other hand, Split custody is for those parents if they have more than one child, and each of the parents enjoys sole custody of at least one child. Next comes in picture Shared Custody, when children spends at least 40% of the time with each parent over the span of one year it is known as shared custody. The next section in Child Support Tool is the calculation of annual income, which is decided on due hardship, needs, and extraordinary expenses, split or shared custody. In some exceptional cases, we need to take into account the income of every household and living standard. The documents that are needed to prove income are – income tax returns of the most recent tax years and notice of assessment from Canadian Revenue Agency (CRA). Other valid documents includes letter from employer stating salary, corporation’s financial statements, business partnership details. Whether the parent lives in Canada or United States, documents need to be presented within 30 days after the application has been filed in order to vindicate any penalty for unnecessary delays. In case the amount shown on line 150 is not an accurate income, the judge might increase that value to calculate child support income which is known as Imputing Income; this primarily comes in when the parent is voluntarily underemployed, or has trusts income, income from dividends, capital gains etc. The child support  income may also increase if special or extraordinary expenses are involved which include- high education tuition fees, disability, an illness, child’s health care needs exceeds $100 per year. However, sometimes the support to the child may decrease if there is an attestation of undue hardship which means high debts, associated child from another relationship, and dependent child from former spouse. As nothing remains same, either of the parents may apply for amendments provided that the consent of both parties is sought as given under Section 6. In case, child support are not paid on time or any undue delay beyond reason is made, an enforce support might be enlightened. Each province has Maintenance Enforcement Program to aid enforce support orders and agreements.

As going on trial is always expensive, stressful and time consuming, there are other ways from which custody over the child can be obtained without approaching the courts for the same-

  1. Meditator- A meditator having a legal or social background can always assist parent in getting their child custody. Apart from this, they also specialize in handling parental disputes.
  2. Therapist- Parents meet with their therapists, psychologist, social workers who specialize in separation and divorce cases who can also guide over child custody cases.
  3. Parent-Education Sessions- Parent-education sessions are set by courts which are expected to provide different opinions for settling separation and divorce issues between the couple. It also states its due/undue impact on children.

Fees

There is no fee if the documents are filed at the Ontario Court of Justice. There are fees if documents are filed at Supreme Court of Justice or Family Court Branch at the Supreme Court of Justice.

Initiating a case, fees of $202 is given however for responding a case, fees of $161 is given to give an answer. As a whole, a total of $632 is given including first $202, and $10 which is collected by the federal Department of Justice. Additionally, a court fee of $ 420 is paid before the divorce is reviewed by the court. Court fees may be paid by cheque, cash or money order payable to the Minister of Finance. In some exceptional cases, fees may be waived off considering the financial situation of the spouse. Furthermore, In order to obtain a copy of documents inclusive of Certificate of divorce, divorce order or other documents, the person shall notify the court on prior basis and pay the concerned fees as follows:

  1. A fee of $24.00 is charged to obtain certificate of divorce.
  2. In case of child support order certificates, a fee of $1.00 is charged to obtain a document, and $ 3.50 per page is required to obtain certification.

Religious Divorce and Legality of same-sex marriage divorce

There were some amendments made in Canadian law on divorce overtime on the basis of different facts, issues and findings. Bruker v. Marcovitz  2007 SCC 54A is a classic case of year 1990  wherein a Jewish woman’s divorce was struck as her spouse didn’t appear in court and she had to obtain get in Jewish rabbinical courts to marry someone else. This landmark case highlights the problem of agunah in Canada, however, a little variation in the act had resolved the problem that the spouse has to issue affidavit declaring the barriers to marriage in the spouse’s (the deponent) marriage. The affidavit should receive response within 15 days otherwise the spouse seeking religious divorce may be granted. However, in one of Quebec case, Supreme Court of Canada has declared that ex-husband should obtain get, provided that ex-wife should get damages as a result of husband reneging her.

In another amendment, same- sex marriage divorce came out in year 2007 but was not recognized as same-sex marriage was not legitimate in law and residency works as a prerequisite for which both the spouses should be in Canada for filing a divorce application. It was not until 2013, when a bill in which Clause 4 of Bill C-32 dealing with dissolution of marriage for non-resident spouses whether same sex or not passed that now same-sex couples also have the right to obtain divorce which was otherwise restricted earlier.

Division in Property

Under Canada’s constitution, both the spouses must have a share in the property when it is acquired during marriage and either of the spouse still owns it. It also lays clear indication that even though either of the spouses is working or is a home-maker, each spouse has a right to demand equal division in property. Both of the spouses have an equal right in the matrimonial home; it doesn’t matter under whose name the house is registered. Also, any increase in value of the property’s share must be shared between the spouses. The amount that is owed to the other spouse in case of such increase is called equalization payment or equalization of net family property. However, there are some properties which can be debarred from being divided equally which are known as excluded properties such as gifts, inheritances from someone else other than spouse, provided that such gifts or property were not used for matrimonial home.

It is often seen that if the couple has children, family home is given to the spouse who has custody of the child. Furthermore, in July, 2012 a pension plan came into effect which made it easier for the divorcing couple to value and divide the property between themselves.

Spousal Support

In the earlier series of cases concerning divorce and spousal support commonly known as Pelech triology[1], the court alleged that spousal support is discretionary and at that time and the law predominantly focuses on spouse self-sufficiency that is spouse has to take care of themselves without asking for help from the estranged spouse.

However, subsequent cases around the judicial interpretation of spousal support such as landmark cases of Moge[2] and Bracklow[3] led to the emergence of a revised and strong footing in the Supreme Court of Canada. In these judgments, the court noted that despite most efforts, some spouses cannot have stable income and therefore, survival is difficult; such persons look for financial help from estranged spouse. In ground breaking decisions, the court had reportedly said that has completely outraged Pelech philosophy and emphasized that spousal self-sufficiency after divorce was baseless as well as arbitrary. Considering economic consequences which are disadvantageous to other spouse and making it hard to survive without any support.  Also, the Court took note of the fact that spouse has sacrificed labor participation for care for children during the marriage, so it is duty of the other spouse to provide alimony or any kind of other monetary support. Such cases have clearly led to establishment of the rule of spousal support and outraged verdict in Pelech Trilogy. In Moge case, court dismissed all evidences of money loss and instead – ‘need’ as the traditional factor was predominately chosen to provide spousal support. These cases have an ever-lasting impact as even now spousal support is seen to be provided to support estranged spouse.

Conclusion

Marriages can be dissolved by the divorce which involves a judicial decree. Amendments are done over time to meet best interest of Canadians such as most awaited Bill that is Bill C-78 which received the Royal Assent in 2019 and replaced words like ‘custody’ and ‘access’ to ‘parenting-time’ and ‘parenting decision-making’. Also, it also focused on the duty of spouses to protect their children. Hence, Divorce Act is one of strongest and well-articulated legislation that protects not only spouses from misconduct and/or cruelty of the other spouse but also their children.

[1] Pelech v. Pelech, [1987] S.C.J. No. 31, [1987] 1 S.C.R. 801 (S.C.C.) [hereinafter “Pelech”]; Richardson v. Richardson, [1987] S.C.J. No. 30, [1987] 1 S.C.R. 857 (S.C.C.) [hereinafter “Richardson”]; Caron v. Caron, [1987] S.C.J. No. 32, [1987] 1 S.C.R. 892 (S.C.C.).

[2] Moge v. Moge 1992

[3] Bracklow v. Bracklow  1999