Fact Sheet: Divorce

by Pamela Cross, LLB

Divorce is regulated by the Divorce Act, which is a federal law.  This means that it applies to everyone in Canada, no matter where they live.

Only people who are married can get divorced.

There is no requirement to divorce if a marriage comes to an end.  Some people wait years, some wait until they need to be divorced in order to remarry and some never divorce.  It is perfectly legal to live in a common-law relationship while still married to someone else, but it would not be legal to marry this person until divorced from the first spouse.

What reason do I need to get divorced?

There is only one legal ground (or reason) for divorce in Canada -- marriage breakdown.

This is defined as:

• the spouses have lived separate and apart for at least one year
• either spouse has committed adultery
• either spouse has treated the other with serious physical or mental cruelty

Most Canadians simply wait until they have lived separate and apart for a year to apply for a divorce.

How can we live separate and apart in the same house?

This term is a bit misleading, as people can actually live separate and apart while they live in the same house, as long as their relationship and dealings with one another do not look like they are a couple.

For example, at least one of them must accept that the marriage is over.  They can no longer socialize as a couple and should end their conjugal relationship.  They should separate their financial responsibilities (for example, bank accounts and credit cards) and household tasks (for example, laundry and meal preparation).  If there are children, they should spend time with them separately.

Can I get custody when I get divorced?

When people apply for a divorce, they can also resolve related issues: child custody and access, child support and spousal support.

Because applying for divorce costs more money and cannot be started until one year has passed, many people sort out these other issues using provincial family law and then apply for a divorce at some time in the future.

Can I get a divorce through arbitration?

While people can use alternative dispute resolution techniques to resolve many of the issues that arise on relationship breakdown, a civil divorce can only be granted through the court.

Can the court refuse to give me a divorce?

The court can refuse to grant a divorce if it feels the amount of child support is inappropriate or if it believes the parties have not told the truth.

What about religious remarriage?

The Divorce Act has provisions to ensure that neither spouse can unreasonably refuse to remove barriers to the religious remarriage of the other spouse, although a determined and controlling spouse can find ways around these provisions if he wants to ensure his ex-wife cannot remarry in her religion

A recent case in the Supreme Court says that, in some circumstances, a spouse who refuses to remove these barriers may have to pay damages to his former spouse.

What if I was divorced somewhere else?

Canada recognizes divorces granted in other countries if they were conducted in accordance with the laws of that country and if either spouse lived in that country for at least one year before applying for the divorce.

This Fact Sheet contains general legal information only.  It is not a legal document, nor is it a replacement for legal advice.  Anyone in a situation involving family, immigration or refugee law is strongly urged to meet with a lawyer to understand fully their rights and responsibilities, the legal options available to them and appropriate legal processes.  A lawyer can interpret the law and provide advice based on the personal facts and information in the specific case.

For information about finding a lawyer in your community, contact Legal Aid Ontario at 1 800 668 8258 or 417 979 1446.

You can also visit Legal Aid Ontario online at www.legalaid.on.ca