Filing for Separation or Divorce
A divorce is different from a separation in that divorce is a “change of status” which turns a married or separated person into a divorced person who, as a consequence, is then free to remarry.
Common-law couples don’t need a divorce. Same sex marriages are subject to the law on divorce.
The process is begun by the filing and serving of a Petition for Divorce or simply a Petition in common-law cases or where the parties don’t want a divorce.
No Fault Divorce
In Canada, divorce is “no fault” and there is only one ground for divorce, namely, “marriage breakdown.” Marriage breakdown can be proven by the separation of the parties for one year, or by proof of adultery or cruelty. Given the timelines that are usually involved, a claim for cruelty or adultery is rarely pursued unless someone is in a hurry to remarry.
Either party can file for divorce with a divorce lawyer at any time, even before physically separating, but the decree, except in rare cases (adultery or cruelty), will have to wait until there has been a separation of at least one year.
The vast majority of divorces and separation cases are concluded on an uncontested basis, without the necessity of a trial or hearing.
While that doesn’t mean that the parties may not have issues that need to be resolved by the court on an interim hearing or by negotiation, the matters are usually tied up by the processing of an uncontested divorce by affidavit evidence.
Corollary Relief, or “What Happens on Separation and Divorce?”
Once proceedings are ready to be started, the petitioner, the one who commences the proceeding, will typically ask the court to deal with the issues of corollary relief, such as property division, occupation or sale of the family home; custody issues and support of children, spousal or common-law partner support; and protective or restraining relief. These are the issues that form the substance of the litigation and its resolution.
If the parties are able to settle their issues, the court will require evidence – given orally by one or more of the parties in a courtroom, or by affidavit – to grant the divorce. Prior to granting the divorce, the court is required to satisfy itself that appropriate arrangements have been made with respect to child support. The court has a duty to refuse the divorce unless it is satisfied with those arrangements. It will also want to be satisfied that the parties have considered reconciliation and are aware of the provisions in the law which support that.
If something needs to be settled urgently or immediately, such as custody or support pending the trial, the court can grant an Interim Order. All the relief, except the divorce itself, is available on an Interim Motion. Please see the Fishman Beley Family Law Primer on Practice and Procedure for a more elaborate discussion of Interim Relief.
Certificate of Divorce
Thirty-one days after the divorce is granted, either party may re-marry. A Certificate of Divorce is available from the court as proof. It is suitable for framing and is evidence of the divorce, necessary when applying for a marriage licence.