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What is the process for Divorce?

Since marriage is a legal relationship, and rights and obligations flow from that relationship, a formal legal process is required to terminate a marriage. That process is a divorce. The following sets out the basic divorce law applicable in Ontario.

Divorce Law in TorontoThe days when fault was required to end a marriage are long gone. As a result of the Divorce Act, Canada is a “no fault” divorce jurisdiction. Parties are entitled to a divorce as a result of a marriage breakdown. If a party can show that he or she has lived separate and apart from his or her spouse for at least one year, marriage breakdown is proven.

The other possible grounds for divorce are adultery or physical and/or mental cruelty of such kind as to render continued cohabitation intolerable.  These are not pleaded as often and they result in a longer, more emotional and more expensive process.

Parties do not have to wait to commence divorce proceedings until they have been separated for a year. A divorce application can be commenced at any time, but a court cannot grant the divorce until the parties have been separated for a full year. The parties do not have to agree to end the marriage as a party is entitled to a divorce after one year of separation, regardless of whether or not the other party consents. A year of separation is not required if a party is relying on the alternate grounds.

Canadian citizenship is not required in order to be divorced in Canada. It also does not matter where the marriage was entered into. That is, parties can be divorced in Canada even if they were married elsewhere. However, there are residency requirements for a divorce. A party can only apply for a divorce in a province where either one or the other spouse has been living for at least one year. At present, there is pending legislation which, if passed, would permit some non-resident same sex spouses to divorce in Canada.

There are no time limits for applying for a divorce in divorce law.  A party can apply for a divorce at any time once the one year has expired. There is no time limit for child support applications, provided the child is still entitled to child support under the Divorce Act. Similarly, there is no time limit for a spousal support application although since need is one of the criteria the longer a party waits to apply could operate against him or her. There is no time limit for a custody and/or access application, although a judge will consider status quo when making such an award.

There are time limits for the division of property between spouses. The time limit for applying for a division of property is the earliest of:

  • two years after the date of the divorce or annulment, or
  • six years after the day the parties separated with no reasonable prospect of a reconciliation, or
  • six months after the other spouse dies.
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