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How to Start the Divorce Process

how to start the divorce process in canada

When you have decided to end your marriage, the next question is how to start the process of divorce, and what is the timeline for a divorce from process to resolution.

Going through a divorce can be a challenging and emotional process, but understanding the legal requirements and the steps involved can help clarify the process, so you can make plans, assemble the right documents, ultimately making things more manageable for you.

In this guide, we’ll walk you through the steps of starting the divorce process, including filing the application or statement of claim for divorce, serving and responding to the application or statement of claim, negotiating and and finalizing the agreement and ultimately receiving your divorce judgement. 

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Do you meet the criteria for divorce in Canada?

In Canada, some basic requirements must be met for you to be able to apply for a divorce, you can look at the divorce act for more specific information. There used to be requirements like someone had committed adultery or other but that isn’t the case anymore.

If you are looking to divorce, you must meet each of these criteria before a divorce can be granted by the Court:

  • You or your spouse must living in the province where you are applying for a divorce for more than one year before the beginning of the divorce proceedings.
  • You will need to know where your spouse is located as you will be serving them the appropriate Court documents via the process server. If you are unable to personally serve your spouse, you will need to look at alternative options and may require some legal assistance to be able to use an alternate method of serving the documents such as email.
  • In most cases, spouses need to be separated for more than one year before divorce can be granted or you must prove that there has been adultery or mental or physical cruelty. These last two grounds are difficult to prove as they are time-consuming and expensive to prove adultery or cruelty because the person who committed the adultery or cruelty will have to admit to it in a sworn Affidavit that is filed with the Court.
  • Before a divorce can be granted, the “corollary relief” must be settled. That is, if you have children, you must have an agreement around parenting and child support (Canadian Child Support Guidelines can be found here:https://www.justice.gc.ca/eng/fl-df/child-enfant/2017/look-rech.aspx) . Spousal support must also addressed, that is, agreeing upon the amount or waiving spousal support completely. Once corollary relief is agreed to, the agreement either needs to be filed with the Court or outlined in your Divorce Judgment.
  • If your pending divorce is uncontested or is a ‘desk divorce’ (both parties agree), then both parties will need to consent to the  Divorce Judgment via signature and will not have to appear before the Court. If a member of the party does not agree, then you will need to have your application heard by a Justice for your divorce to finalized and granted.
  • If you were married in Canada, you will be required to provide an original copy of your official government-issued marriage certificate. If you were married outside of Canada, you can still get divorced in Canada as long as you provide the original certificate of marriage.

More Preparation Steps to Consider

The Divorce Act is the federal law that applies when a married couple has requested a divorce or has already divorced in Canada. In addition to setting out conditions for getting a divorce, it addresses issues such as child support, spousal support and parenting arrangements for children in divorce cases.

What should I put in place before telling my spouse I want a divorce?

Before telling your spouse that you want a divorce, it’s crucial to have certain things in place. First, make sure you have a support system in place, whether it’s family, friends, a divorce coach or therapist, who can provide emotional support during this difficult time. 

Additionally, gather important documents, such as financial records, property titles, and insurance policies. These documents will be necessary during the divorce process, so having them organized and readily accessible will save time and stress later on.A Divorce Coach can also help with identifying the documents that will need to be provided.

Think about your living arrangements and whether you need to secure temporary housing before initiating the divorce process. Having a plan in place for where you will live can help alleviate some of the uncertainty.

Deciding on the Type of Divorce

One of the first decisions you’ll need to make is determining the type of divorce that best suits your situation. 

In Canada, (federal law based on the divorce act) there are two main types of divorce: uncontested and contested. In an uncontested divorce, both spouses agree on the terms of the divorce, including child custody, support, and property division. This type of divorce is typically less time-consuming, less expensive, and less adversarial. In a contested divorce, one or both spouses disagree on one or more aspects of the divorce, such as parenting and child custody, support, or property division. 

This type of divorce can be more complex, time-consuming, and emotionally challenging. It’s advisable to consider mediation for uncontested divorce matters. Mediation involves a neutral third party who helps facilitate negotiations and agreement between you and your spouse. This process can be beneficial in resolving disputes and reaching mutually satisfactory outcomes.

Collecting Necessary Documents

For all divorce types, it’s crucial to collect necessary documents such as marriage certificates, separation agreements, and divorce applications. This organization facilitates a smoother process. Seek legal advice (like family law) for tailored paperwork needs and familiarize yourself with local courthouse procedures, as they differ across jurisdictions.

How should we tell our kids that we are getting a divorce?

Deciding how and when to tell your children about your divorce is a personal decision, and there is no one-size-fits-all answer. It’s important to consider the age and maturity level of your children before having the conversation. Younger children may not fully understand the concept of divorce, while older children and teenagers may have more questions and concerns. 

When discussing the divorce with your children, it’s best to have both parents present for the conversation, if possible, to maintain a united front. Reassure your children that they are loved, and encourage them to ask questions or express their feelings. 

Let them know that it’s okay to feel a range of emotions, and assure them that both parents will continue to be involved in their lives.

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The Separation Agreement

The separation agreement is one of the most important documents that you will create during your divorce process.  

A separation agreement in Canada is a legally binding contract created between two parties who are separating or divorcing. This document outlines the terms of their separation and covers a range of important issues. Here’s a synopsis of the key elements typically included in a Canadian separation agreement:

  1. Division of Property and Assets: The agreement specifies how marital property and assets will be divided between the parties. This includes real estate, investments, and personal property.
  2. Spousal Support: It outlines the details regarding spousal support, including the amount, duration, and conditions under which it will be paid.
  3. Parenting / Child Custody and Access: If children are involved, the agreement will detail custody arrangements, including who will be the primary caregiver and the visitation rights of the non-custodial parent.
  4. Child Support: The agreement includes provisions for child support, determining how much and how often one parent will pay the other to support their children.
  5. Debt Division: It addresses how any joint debts incurred during the marriage will be handled and divided between the parties.
  6. Insurance and Health Care: Details about health insurance coverage, especially for any dependent children, and how these costs will be shared.
  7. Pension and Retirement Benefits: The agreement may include details on how pension and retirement benefits will be divided.
  8. Dispute Resolution: It often includes terms for resolving future disputes, possibly through mediation or arbitration, to avoid going to court.
  9. Amendments and Review: Conditions under which the agreement can be reviewed and amended in the future.
  10. Legal Advice and Independent Legal Representation: Both parties are usually advised to seek independent legal advice before signing the agreement to ensure their rights are protected and they understand the terms fully.

While drafting an agreement without legal help is possible, it’s advisable to have a lawyer review it for compliance with legal standards and to protect both parties’ interests. Each party needs independent legal counsel to review and approve the divorce before filing. The enforceability of the agreement hinges on complete financial disclosure and the absence of duress or undue influence during its creation.

Filing the Divorce Application

Once you have gathered all the necessary documents, it’s time to file the divorce application.

How to File a Divorce Application in Canada

Filing a divorce application in Canada involves several steps. First, consult with a family law lawyer to ensure accurate completion of divorce application forms. They will guide you through the process, ensuring that all necessary information is included. Familiarize yourself with the divorce registry and court clerk’s certificate requirements for filing. These documents are essential for initiating the divorce process. It’s recommended to seek clearance from the court clerk before applying, as this will ensure that everything is in order.

Cost Involved in Filing

It’s important to be aware of the costs associated with filing a divorce application in Canada. The court fees and legal representation costs can vary, so it’s best to consult with a family law lawyer to understand the cost structure specific to your case. There may also be additional expenses, such as affidavit filing and court clearance, that you should consider when planning for divorce proceedings. Seeking advice on cost management strategies, such as mediation services, can help you navigate the process in a financially responsible way.

The Role of the Court during the separation period

During separation, courts oversee legal proceedings, scheduling case or settlement conferences for contested divorces. They may also order mediation through family justice services to facilitate dispute resolution. This helps couples reach agreements, potentially avoiding court. It’s crucial to prepare by gathering financial records, custody plans, and support agreements, ensuring smoother and more efficient divorce proceedings.

What If Your Spouse Contests the Divorce

In a contested divorce, mediation or court proceedings are often required, and having an experienced family law attorney is vital for guidance and advocacy. Key issues include child custody, support payments, and property division. It’s also important to manage emotional and financial stress with professional, family, and friend support.

Finalizing the Divorce

After the separation period, the negotiations and settlement are complete and filled, the Court will grant a Divorce Judgement which will be sent to the parties in the form of a divorce certificate which means the marriage has been officially dissolved. You may need these documents in the future so keeping them safe is essential.

Just as a note, the legal process is different in each province, and even though there is a federal law (divorce act) concerning divorce there are also provincial and territorial laws. The divorce act is in place for Canada-wide implementation, but each journey will have its own nuances based on where you live and where you are submitting your divorce papers.

Divorce Process FAQ

Now that we’ve covered the process of starting a divorce in Canada, let’s address some frequently asked questions. Remember to check your provincial or territorial laws for specific divorce law in your area, court rules change based on where you live and both you and your ex need to understand the implications of those items.

How Does One Rebuild After a Divorce?

Rebuilding after you are legally divorced can be a challenging process, but with support, it is possible to move forward. Seeking professional support, such as therapy or counselling, can help you process the emotions of your marriage breakdown and develop coping mechanisms.

Financial advice can also be beneficial, as divorce often has economic implications. A financial advisor can help you create a budget, manage debt, and plan for your financial future. Focusing on self-care, mental health, and personal growth is essential after divorce.

Engage in activities that bring you joy, surround yourself with positive influences, and embrace new opportunities. Consider family law mediation services for ongoing child custody and support matters, as mediation can help facilitate effective communication and cooperation.

How Long Does the Divorce Process Take in Canada?

The duration of a divorce in Canada can vary depending on several factors. If both you and your spouse agree on key issues and can amicably resolve matters, the process may be quicker. Typically, after filing for divorce, there is a mandatory waiting period of at least 30 days before a judge grants the final divorce judgment.

In cases where there are disputes or complications, especially in a Canadian marriage involving complex assets or custody issues, the process can take much longer. It’s important to get legal advice (like family law) to ensure that all aspects of the divorce are handled correctly.

For those considering a divorce online, this option can expedite the process for uncontested divorces. However, it’s still crucial to have legal professionals review all documents to ensure they meet legal standards.

Once the divorce is finalized and the judge grants the divorce, you will receive a divorce certificate, marking the official end of the marriage. Remember, the specific time frame can vary greatly depending on individual circumstances and the efficiency of the legal and court systems involved.

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