separating couple signing divorce documents

Divorce concludes a marriage and can feel like an emotional punch unexpected by many who face the journey. For those who have experienced the process, they become aware of the deeply personal, social, spiritual, and psychological impact on their lives.

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.

For opposite-sex couples, 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. 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.

For couples of a same-sex marriage performed in Canada which has ended, and neither spouse resides in Canada, a divorce can be obtained through the court of the province where the marriage was performed.  The couple may submit a joint application or one spouse may proceed with the written consent of the other spouse. The breakdown of the marriage is established by providing evidence that the spouses have been living separate and apart for one year prior to the making of the application.

The Divorce Process

When a new client first informs me that their spouse wants a divorce, the reaction is typically shock and anger. There may be a sense of failure or disappointment that somehow, they failed to make the marriage work. They worry about how to talk to their children and whether they should try to stay in the marriage for their children’s welfare.  Another layer of concern is how extended family, members of their social circle or colleagues will view the change in their home life.

For those clients who inform me that they finally made the decision to separate after years of emotional pain and churning internal struggle, it comes with an incredible sense of relief, tinged with feeling socially-stigmatized for being labeled as ‘destroying’ the family.

A client’s acknowledgment and appreciation that their vulnerability, perhaps fragility and emotional instability are inappropriate platforms from which to understand complex legal issues and to offer meaningful instructions to their family law lawyer about their unique family circumstances.  As they may wish, some clients seek counseling or develop a foundational support network to become empowered, gain confidence and become prepared to face this new path.

An application for a divorce order does not automatically include all other matters arising from the marriage or its breakdown. Decisions relating to their children’s education, health, welfare, financial needs, as well property division, among others matters, need to be specifically addressed and resolved by negotiation, court order or arbitration award. Given too that there are timelines to be respected, a family’s prudent and deliberate attention to developing an optimal parenting plan focusing on the needs of the children, a resolution of economic and financial resources and needs, as well consideration for health, estates, and property.

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

To schedule a private consultation to discuss a current, past or potential separation, please call (416) 596-8081 or fill out a consultation request here.