Divorce Law Services

divorce

A court-granted divorce order terminates a marriage. A “divorce” proclaimed only by the spouses is not good enough. An annulment granted by your church or religious institution is not a divorce under the laws of Canada.

The Canada-wide no-fault ground for divorce is the “breakdown of the marriage,” regardless of the province in which the parties married. If the residency and other requirements are met, a divorce may be granted on this ground for both opposite-sex and same-sex marriages. Only one spouse needs to claim that marriage breakdown has occurred. The person making the claim that the marriage has ended should confirm this understanding preferably in writing with the other spouse. An application for a divorce order does not automatically include all other matters arising from the breakdown of the marriage, such as support and property division, unless specifically claimed.

The breakdown of the marriage can be established in one of three ways. The most common proof is that the spouses have been living separately and apart for one year immediately prior to the judge’s granting a divorce order. Living apart in separate residences is the simplest proof to demonstrate. It becomes trickier to prove separateness if the spouses reside under the same roof. The test is based on “the balance of probabilities” when all the factors are considered. The long list of factors considered includes these:

  • occuping separate bedrooms
  • keeping independent meal times
  • performing personal chores separately
  • lacking intimate relations
  • informing friends and family of the separation
  • identifing the relationship as having broken down on government or other documents
  • attending social events separately

The second proof to establish a claim for divorce is adultery, and the third is “physical or mental cruelty of such a kind to render intolerable the continued cohabitation of the spouses.”

There are residency requirements to be met and specific timed steps to be taken once the Application for Divorce has been issued by the court clerk. You may apply on your own or retain a family law lawyer to assist. Once the divorce has been granted and the Certificate of Divorce has been issued, you are able to apply for a marriage licence to marry again. The divorce process is the same across Canada. If you were married in a country other than Canada, the steps will be a little more complicated.

Your family law lawyer has a duty to ensure that there remains no opportunity for reconciliation between the spouses. If a possibility exists, the divorce process can be paused to explore guidance and marriage counselling options.

The Divorce Process

The process begins with an Application for Divorce prepared by one or both spouses. A sole spouse applying for an uncontested divorce order with no other claims is described here.

The applicant completes a “check box” form and takes it with the court filing fees to the appropriate court to be issued. The court seal is applied to the Application, a file number is assigned, and the court clerk signs the document. The applicant then arranges for the issued Application to be served by any person except the applicant spouse on the respondent spouse.

The full legal names of the spouses are sent by the court clerk to a national  divorce registry in Ottawa to ensure that no other divorce application relating to the same spouses is active anywhere else in Canada. If no duplication is found, a Clearance Certificate will be issued and kept in the court file. This Certificate is reviewed by the judge along with

  • the original Application issued
  • proof of the marriage
  • proof of service of the Application on the other spouse, and
  • a draft divorce order prepared by the applicant

If all is in order, the judge will grant the divorce order. A second original divorce order will be sent by the court clerk to the respondent spouse. If any problems arise, the submitted materials will be returned to the applicant for correction and resubmission.

Thirty days after the divorce order is granted the applicant prepares the Certificate of Divorce to be signed by the court clerk, with the appropriate court filing fees. This document confirms that the divorce order was not appealed. If either divorced spouse wishes to remarry, an original Certificate of Divorce is relinquished to the Ontario Office of the Registrar General when applying for a marriage license to remarry. At no time should the original divorce order be relinquished to any authority, as a certified copy will suffice.