An Introduction to Obtaining a Divorce
Aaron M. Franks and Kristin M. Whitley for The Lawyers Weekly A divorce is nothing more than 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 divorced?
Only married spouses can be or need be divorced. 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 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, 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 but there are limitation periods for making some of the claims discussed below. You should consult a 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 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 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 are remnants from the old fault based system. They are infrequently used. You can obtain a divorce 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 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 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.
The legislation
There are three statutes in Ontario that govern the rights and obligations of spouses upon a breakdown of their relationship. The Federal Divorce Act (which includes the Federal Child Support Guidelines) governs issues such as divorce, custody, child support, and spousal support for spouses who are married and wish to get divorced. It does not govern matters relating to the division of their property.
The Ontario Family Law Act (which includes the Provincial Child Support Guidelines) governs issues such as child support and spousal support for spouses who are married but are not claiming a divorce and spouses who are not married. It also deals with property division for all spouses married or not. The Family Law Act governs matters relating to the property of married spouses who want to get divorced because the Divorce Act does not deal with property division.
The Children's Law Reform Act governs the custody of children for spouses who are not married or married spouses who are not seeking a divorce.
Dealing with custody and support (child and spousal)
Aside from obtaining a divorce, 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 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
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 worths 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 will not be granted until the one year has expired. The divorce judgement becomes effective 31 days after it is granted.
This introduction is not meant to be legal advice. You should consult a 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. They can be reached by email at afranks@epsteincole.com and kwhitley@epsteincole.com.
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