COURTSY: DEPARTMENT OF JUSTICE CANADA
YOU CAN APPLY FOR A DIVORCE IF:
- you were legally married in Canada or in any other country;
- you intend to separate permanently from your spouse and believe there is no chance you will get back together, or you have already left your spouse and do not intend to get back together; and
if 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 do not have to be a Canadian citizen to apply for a divorce in Canada.
GETTING A DIVORCE.
To get a divorce, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:
- you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or
- your spouse has committed adultery (had sexual intercourse with someone else) and you have not forgiven your spouse; or
your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.
You can get a divorce if one of these situations applies to you.
Over 80 percent of divorces in Canada are based on one-year separation.
Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.
However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.
- It is always advisable when starting a divorce application to speak to a lawyer knowledgeable about family law. A lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do. To start a divorce application, you fill out the appropriate forms for your province or territory. If you have a lawyer, he or she will fill out the forms for you and will be responsible for processing the divorce. You may obtain forms at government bookstores, some private bookstores and, in some cases, via the Internet. In some jurisdictions, court offices and family law information centres provide forms.
- There are a few things in particular that you have to include in the forms. If there is a child of the marriage, you need to write down the parenting arrangements, including financial support. If these arrangements are in dispute, you will need to describe the arrangements that you are seeking.
Once you have completed all the forms, you file them at the courthouse, pay the required court fees, and follow the court rules and procedures for your province or territory.
Before or after you have applied for a divorce on the ground of one-year separation, you can live together for up to 90 days for the purposes of reconciliation. If things don't work out, you can continue your action for a divorce as if you had not spent this time together.
If you and your spouse agree on all issues, you have an uncontested divorce.
In most provinces and territories, court officials process uncontested divorces and you do not have to appear in court.
If you and your spouse cannot agree on one or more terms of the divorce, such as the child's residential schedule, child support, or spousal support, you have a contested divorce. You and your spouse must both submit court documents about the issues you can't agree on. The provincial or territorial court rules specify the steps you must take in order to resolve or clarify the issues before a trial takes place. These steps often take a considerable amount of time.
Once all of the steps have been completed, your divorce proceedings will be set down for trial. During the trial, you will explain your case to the judge. You may also bring witnesses to help you to prove your case. The judge will make a final decision about the issues you and your spouse can't agree on. At any time during the divorce proceedings and even after you submit the court documents, you can still try to reach an agreement with your spouse on these issues, and negotiate further with the help of lawyers or work with a mediator.
About 90 percent of cases are settled before trial. However, there are often months of negotiations and many low moments before settlement.
The last step of the process is for a judge to review all of the information you have submitted, either on your application form or in the trial, to make sure you have met all the legal requirements for a divorce. The judge grants the divorce and sets out his or her decision on any issues that need to be resolved in a divorce judgment. This judgment normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce.
A Certificate of Divorce is legal proof that you are no longer married.
When you apply for a divorce, you may request that a judge deal with certain issues right away.
These issues include short-term parenting arrangements for your child, child support and spousal support. The judge issues an interim or temporary order that stays in place until the judge varies it or makes a final order at trial.
Even after divorce, both parents have a legal duty to support their children financially.
Once you have worked out the residential arrangements for your children, you will need to look at the payment of child support. Before granting a divorce, the judge must be satisfied that appropriate financial arrangements have been made.
You will use a set of rules and tables, called child support guidelines, to help you figure out the amount of child support. The federal government has produced a number of publications to help you calculate child support.
Who pays child support depends on the child's residential arrangements. The basic amount is based on three things:
- the payor's income;
- the number of children involved; and
the province or territory where the payor lives.
In some circumstances, the base amount can be increased or decreased. For example, the amount could be adjusted if the children have special expenses, such as childcare. The amount could also be adjusted to prevent financial hardship for a parent or the children. This might be fair when, for example, the parent paying the child support is suffering a hardship, perhaps because that parent is supporting a new family and has a lower standard of living than the parent receiving the child support.
Child support amounts set out in a separation agreement or court order made after April 30, 1997, do not affect income tax.
- The person who receives the child support payments does not have to list them as income on his or her income tax form.
The person paying the child support cannot deduct the support payments from his or her income.
The Divorce Act sets out factors and goals to be considered when figuring out if one spouse should pay another spouse financial support after a divorce. Among these factors are answers to the following questions.
- How long did you live together?
- What was your role in the marriage?
Who is living with the children?
The amount of spousal support to be paid depends on the needs of each spouse and on their income and resources.
Other things are also important. The law sets several goals to keep in mind.
- Spousal support should give value to the contributions made during the marriage. If one spouse has benefited financially from a contribution, the other spouse should be compensated.
- Another goal is to make sure that after a marriage is over, one spouse doesn't suffer economic hardship.
- A third goal is to make sure that the spouse who lives with the children is not at a financial disadvantage because of that.
Finally, spousal support should help each spouse become economically independent within a reasonable amount of time, if possible.
A judge can order one spouse to pay spousal support to the other for a particular amount of time or indefinitely.
The reasons your marriage is over have nothing to do with your financial obligations to each other after a divorce. The divorce law says clearly that the court will not consider the behaviour or misconduct of either spouse in deciding on support payments. Fault is not taken into account.
CUSTODY OF THE CHILDREN
Often, deciding who should have responsibility for children after a marriage is over is not easy. Sometimes both parents want custody of the children.
If you can't decide who will take care of the children, the divorce law sets out some basic principles that a judge must use when making decisions about children.
- The best interests of the children come first.
- Children should have as much contact as possible with both parents so long as this is in the children's best interests.
The past behaviour of a parent cannot be taken into consideration by the court unless that behaviour reflects on the person's ability to act as a parent.
When deciding on the best interests of the child, the judge will take into account a number of factors:
- Care arrangements before the separation. (Who looked after the child most of the time? Who took the child to the doctor and dentist? Who arranged extracurricular activities? Who dealt with the child's school and teachers?)
- The parent-child relationship and bonding.
- Parenting abilities.
- The parents' mental, physical and emotional health.
- The parents' and the child's schedules.
- Support systems (for example, help and involvement from grandparents and other close relatives).
- Sibling issues. Generally, brothers and sisters should remain together, but under some circumstances it may be necessary to consider separating them.
The child's wishes. (There is no magic age at which a child has the right to decide where he or she is going to live. The court gives more weight to the child's wishes as the child matures. An older teenager's wishes will often be decisive.)
If you and your spouse agree that you should have custody of the children, or if the judge decides that you should have custody, you have the responsibility for making the major decisions about your children's upbringing and schooling. The children will usually live with you.
In most cases, the other parent still has a right to be with the children some of the time. Remember, the law says that there should be as much contact as possible with both parents as is best for the children. However, in serious circumstances, a judge may decide that it is in the children's best interests not to spend time with the other parent.
Children benefit from the opportunity to develop meaningful relationships with both parents and with other extended-family members as long as it is safe and positive to do so.
Generally, the parent who does not have custody of the children has a right to spend time with them. If you cannot agree on these access arrangements, the court will decide for you.
A parent with access usually has rights to:
- spend time with the children, such as on a weekday evening, on weekends and on holidays; and
- receive information about the children, news about their health and well-being and about how they are doing at school.
As a parent with access rights, you can ask the court to order the other parent to give you advance notice, at least 30 days-if he or she intends to move the children to another home.
But your right to be with your children is not carved in stone. You can lose your access rights or they can be limited. For example, if you don't follow the court order or if you act in a way that is harmful to your children, the court can decide to change the access arrangements.
Sometimes a husband and wife want a divorce, but want to continue to share their responsibilities as parents equally.
Joint custody means that both of you have custody of the children. In other words, you both continue to share in making all the major decisions concerning the children (about discipline, school, major outings, holidays, etc.). If there is joint custody, many different living arrangements are possible. The children may live with each parent about the same amount of time or live mostly with one parent.
Alternatives To Going To Court
Not many parents go to trial about custody. Proceedings can be expensive and stressful both for you and for the children. You have choices other than going to court to reach agreements on parenting arrangements.
- You can go to a family mediator. A mediator is generally a person with a legal or social work background who has special training in helping people resolve disputes. A mediator works with both of you and helps you discuss and decide on the arrangements for your children.
- You can meet with a lawyer who will explain your legal rights and obligations and help you negotiate an agreement.
You can meet with a family therapist, child psychologist, social worker, family doctor or other professional who knows about the effects of separation and divorce on children of different ages.
Many courts now offer parent-education sessions, which present options for settling the issues you face upon separation and divorce. These sessions also discuss the impact of separation and divorce on children.
DIVISION OF PROPERTY
The Divorce Act does not deal with sharing your property or debts. Each province and territory has its own law that sets out the rules for dividing the property and debts you and your spouse have.
"Property" includes such things as the home you and your spouse shared, its contents, any other real estate, pensions from employment, Canada or Quebec Pension Plan credits, RRSPs, investments, bank accounts and cash. Debts include such things as amounts you owe on your credit cards, your mortgage, and any loans you have. Some provinces or territories also include business assets in their definition of property. It is very important to receive legal advice in respect to property division.
Usually, people who are separating come to an agreement about how to divide the property and debts fairly. This agreement may become part of the written separation agreement. For separation agreements to be legally binding, they usually require independent legal advice and full financial disclosure.
In some provinces and territories, if you wait too long after your separation or divorce to make a claim, you may lose all your rights to share in family property or spousal support.
Canada Pension Plan (CPP) credits are a special category of property. Once you and your spouse are separated, and if you meet other basic requirements, you or your spouse can fill in a form to ask the CPP to divide equally the CPP credits you both earned while you were married. The Quebec Pension Plan (QPP) also allows you to split your pension credits.