When a spousal relationship breaks down, most spouses are anxious to get as much information as possible pertaining to their recent relationship breakdown. For married couples, for instance, they want information about the divorce process, what evidence they need to show to obtain a divorce, whether they qualify to apply for divorce etc. Below, I will address questions that I frequently get asked.
What is Divorce?
Divorce applies only to married couples. It is a court process that a married couple must go through to end a marriage.
If you are not legally married, divorce does not apply to you. If your relationship has broken you are considered separated. When you separate, you and/or your spouse decide to live apart and do not intend to live together again. Although the federal law does not apply to unmarried couples who separate, you can still negotiate a “separation agreement” and other arrangements regarding child custody, access and support under Ontario laws.
Before you begin divorce proceedings, you may wish to consider whether marriage counselling could help you and your spouse.
Often when a married couple separates, divorce is not the first important issue in their mind but rather issues relating to children or finances. Our office can assist you in settlement negotiations to resolve issues arising from your marriage breakdown.
What are the Reasons for Getting a Divorce?
To get a divorce, you will have to show that your marriage has broken down. 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; or
- Your spouse has committed adultery 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.
Even if all the 3 grounds of divorce apply to you, most divorce applicants rely on separation as the ground for divorce largely because it is easier to prove, less litigious and it encourages an amicable divorce process.
Do you have to show who caused the marriage breakdown?
No. Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. It is a no fault system of divorce.
Who can Apply for Divorce in Canada?
Not everyone. You can apply for a divorce in Canada if:
- You were legally married in Canada or in any other country;
- You intend to separate permanently from your spouse and believe there is no chance you will get back together, or you have already left your spouse and do not intend to get back together; and
- Either you or both of you have lived in the Canadian province or territory for at least one year immediately before applying for a divorce in that province or territory.
Most new immigrants to Canada, who wish to have a quick divorce, find it difficult satisfying the 3rd criteria for divorce mentioned above. It should be noted however, new immigrants can still avail themselves to other family laws relating to issues of custody, access, support, division of assets or restraining orders.
Can I start a divorce process in Canada if my spouse resides outside Canada?
Yes you can. If your spouse resides outside Canada or USA, your divorce process may take a longer time than normal due to longer periods required for your spouse to respond to your Application. This is further complicated, if your spouse resides in a country that is member of Hague Convention as specific rules to serve your Application for Divorce must be followed.
How Do I Start the Divorce Process in Toronto?
Before starting a divorce, it is recommended that you seek legal advice from an experienced divorce lawyer in Toronto. Our office is here to advise you on how the law applies to your specific case and how you can protect your rights. To start the divorce process, you must:
- Fill out a divorce application.
- Submit the application at in Superior Court of Justice. In Toronto, the Superior Court of Justice is located at 393 University Avenue, Toronto.
- Pay the required court fees.
- Follow any court rules and procedures given.
Contact Jane Mukongolo – Divorce lawyer in Toronto, North York, Scarborough for more information about filing a divorce or getting a consultation.
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