Free guide through your Divorce process includes separation agreement, family property division, spousal support, divorce test. Separation and divorce can be one of the most emotionally and financially frightening and difficult experiences anyone will ever go through. A lot of the fear is generated by not knowing what to do or what to expect. When you know what to expect, everything becomes easier to deal with. While getting divorced is likely to be uncharted territory for you, arming yourself with as much information as possible will help you make a smooth transition to your new life. Taking control of the divorce process by educating yourself, will go a long way to alleviating your stress and making the divorce process a easier to deal with. 
In Canada, the federal government shares responsibility with the provinces and territories for family law matters. The federal Divorce Act, which was first enacted in its modern form in 1968, applies to people who were married and are now divorced, as well as those who are planning to divorce.
If you were never legally married but are separating from your common law partner, the Divorce Act does not apply to you. Common law partners can still negotiate a separation agreement or make an application to the appropriate court in your province or territory to deal with custody, child and spousal support and other issues flowing from the dissolution of your relationship. However, you should know that common law spouses have fewer rights upon separation than married couples, especially rights concerning property issues.
The Divorce Act sets out the law about the divorce process for Canadian residents and is applicable in all parts of Canada. Provincial or territorial laws, usually apply to parties who were never married or are not planning to divorce. To get a divorce in Canada, there must be a breakdown of your marriage. 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;
- 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.
Most people begin their divorce process based on the parties’ having been separated for one year, even if there has been adultery or cruelty. Proving adultery or cruelty is both expensive and time consuming and really does not gain you anything additional in terms of property entitlement or involvement with your children. It is generally recommended that you don’t file for divorce on the grounds of cruelty or adultery, as this will simply make your divorce case much more expensive. In addition, filing on the basis of cruelty or adultery will gereally make resolving the other issues in your divorce more difficult. Finally, because of the backlog in the court system, even if you choose to proceed on the grounds of cruelty or adultery, you probably won’t be able to get your divorce in less than a year in any event. In fact, claiming a divorce based on adultery or cruelty generally antagonizes judges in our “no fault” divorce regime.
There is often some confusion as to when the one-year separation begins. The definition of being separated for one year is that you and your spouse have lived "separate and apart" for one year with the intention that your marriage is over. The one year period starts from the time either the husband or the wife makes the conscious intention of living separate and apart from the other spouse and takes some action towards that end. There is often some confusion as to when the one-year separation period begins. The period of the one year separation starts at the time one spouse decides to live separate and apart. This separation can be as limited as the couple living in separate bedrooms or as extreme as one partner moving to another country. You do not need a piece of paper, an agreement or court order to be considered separated. There is no such thing as a formal legal separation in Canada. In fact, you may be considered separated in the eyes of the Court, even though you continue to reside in the same house. Separation is really a state of mind.
A Long Separation Doesn’t Mean You’re Divorced
Many people are under the assumption that if they are separated for a long period of time, say ten or twenty years, that their marriage is nullified. This is not true. A divorce granted by a judge is the only way your marriage will be terminated under the eyes of the law. While separation for one year is grounds for divorce, you still need to go through the legal process to obtain a divorce.
How do I Get Issues Resolved With My Spouse?
Once you are separated, the divorce process requires you to deal with your spouse in relation to issues concerning any children you have. In addition to resolving issues such as custody and child support, you may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:
- You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses detailing the arrangements you have agreed on. In some jurisdictions, independent legal advice is required to make the document legally binding. It is generally recommended that independent legal advice be obtained by both parties.
- You can make an application to the court to set up custody, support and property arrangements under the Ontario laws, or in your province or territory.
- You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.
What if You Try to Live With Your Spouse Again After You Have Separated?
If you decide to attempt to live together again, you can live together for up to 90 days for the purposes of reconciliation without consequence. If things don’t work out, you can continue your action for a divorce as though you had not spent this time together. If you live together for more than 90 days and separate again, the date of the second separation will be your new date of separation.
Applying for Divorce
You do not have to argue or fight with your spouse in order to get a divorce. If you and your spouse agree that your marriage is over and that you want to get a divorce on the grounds that you have been separated for more than a year, you can file your documents on your own. This eliminates the need for a formal court hearing and the legal fees that might generate. You can get the necessary forms on the websites of most provincial governments, buy a kit in some bookstores, or get the materials that you need at your local family court. This will allow you to complete your divorce process without a lawyer. It is, however, always advisable when filing for divorce to speak first to a lawyer knowledgeable about family law. A divorce lawyer can tell you exactly how the law applies to your particular family situation, what you legal obligations are and how to protect your rights. You can then make an informed decision about what to do.
Divorcing When You Didn’t Marry In Canada
If you didn’t marry in Canada, you can still legally get a divorce here. Divorce in Canada is based on residency, not the place of marriage. So, if you have lived in Canada for at least one year, you can obtain a divorce here, on any of the grounds for divorce.
Uncontested Divorce vs. Contested Divorce
Divorces are called uncontested when there are no fundamental disagreements about the divorce or if there are any disputes, they do not need to be resolved in court. In an uncontested divorce, the spouses divorce without going to trial. Uncontested divorces move more quickly through the courts and are generally less expensive than contested divorces.
Where possible, couples seeking a divorce should try to work out mutual terms for the separation without going to court. If the spouses cannot resolve disputes on their own, they can turn to mediation or arbitration. This, collaborative law approach saves time and money by bypassing lengthy litigation and trial processes.
An uncontested divorce typically reduces hostility, allowing both parties to resume their lives more quickly. Contested divorces usually involve complex legal and financial issues. Unlike an uncontested divorce that can be resolved quickly and at a reduced cost to all parties, a contested divorce usually involves litigation with lengthy court proceedings.
Applying for an Uncontested Divorce - When You and Your Spouse Agree
If you and your spouse agree on all issues regarding the breakup of your relationship, you have the basis for an uncontested divorce. In most provinces and territories, court officials process uncontested divorces and you do not have to appear in court before a judge. An ‘uncontested divorce’ is a regular divorce that your spouse does not contest because he or she agrees with what you are asking for.
If you and your spouse are in agreement about all issues you might also consider filing for a ‘joint divorce’. A joint divorce is where both spouses file for divorce together. With this type of divorce, both husband and wife sign and swear the divorce papers. Neither spouse is suing the other for divorce - you are telling the court that you both want the divorce.
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. If you are not using a lawyer, you may obtain forms at court locations where family law cases are heard, on your provincial government website, or at some specialty bookstores. In some jurisdictions, family law information centres provide divorce forms.
Your divorce application will normally have paragraphs that refer to where and when the marriage took place, who the children are, who should have custody of the children; why child support should be paid and by whom; the grounds for the divorce, if there is to be support paid by one of the spouses to the other, and what is to become of the family property. Certified copies of the marriage certificate and, in some jurisdictions, the childrens’ birth certificates may have to be attached. Don’t be surprised by the many questions asked on the Divorce Application. The judge who will ultimately grant the divorce has an obligation to ensure that adequate arrangements have been made for the support of any children of the marriage. That is why you must answer so many questions on the application: all the possible questions that a judge might ask must be answered in advance. If they are not, your application could be rejected, or require further explanation.
You will also be asked to submit a form requesting a search to be made of the divorce records in Ottawa, to determine whether you or your spouse have started a divorce action in any other Canadian jurisdiction. Once you have completed all the forms, you file them at your local courthouse, pay the required court fees, and follow the court rules and procedures for your province or territory. There is usually a fee for filing a divorce application generally in the range of $100.00 to $300.00.
What Happens if You Can’t Agree on all of Your Issues? – The Contested Divorce
If you and your spouse cannot agree on one or more terms of the divorce, such as your children’s residential schedule, child support, spousal support, or how you will divide your property, you must file for a contested divorce. In this situation, you and your spouse must both submit court documents about your marriage, your finances and the issues you can’t agree on. 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. It is not unusual for this “contested” process to take two years or more to reach final resolution.
Sometimes, two divorce applications, one by each of the spouses, may be filed to end the same marriage. A person is allowed to bring their divorce petition anywhere in Canada provided they have been living in the province where they want to file their petition, for at least a year. Where two petitions are filed, it is the court which was the first to receive an application that supersedes the later one.
Each province and territory has its own rules regarding the steps which you must complete in order to obtain a final divorce order, although, the process in very similar in all jurisdictions. One party must initiate the process and the other may file responding documents. Court appearances may be required. Once all of the steps have been completed, your divorce proceedings will be set down, (i.e. scheduled, for trial. During the trial, both you and your spouse will explain your case to the judge. You may 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, even at any point during the trial, you can still try to reach an agreement with your spouse on your issues. It is always possible to negotiate and settle. Statistics show that over 90 percent of family law cases are settled before trial.
The last step of the divorce 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. A judge will finally grant the divorce, set the terms dealing with the children, support and property, and set out his or her decision on any issues that need to be resolved in a divorce judgment or divorce order. This judgment or order normally becomes final 31 days after the judge signs it. Once the judgment is final, you can apply for a Certificate of Divorce.
