FREQUENTLY
ASKED QUESTIONS ABOUT
DIVORCE
The answers set out below are intended only to provide general information. Every person's situation is unique and most often there are more matters to consider than what is set out in the individual questions. As well, if you live outside of Ontario your provincial or territorial legislation will be different from that inside Ontario. In every case, whether you live in or out of Ontario, you should consult an experienced family law lawyer fully informed about your circumstances and not act solely on the information set out here.
If you have a particular question not dealt with below you can send an e-mail enquiry and we'll be sure to get back to you shortly.
Only if you want to remarry. Otherwise you can live forever legally married to someone from whom you are separated. It doesn't make much sense, but you can do it.
Do I need a lawyer to get a divorce?
No. There are various self-help books around which show you the steps through a normal divorce proceeding. Just as with any law suit, anyone can act for himself or herself. (But you should remember the saying that a lawyer who acts for himself has a fool for a client.)
However, if you want anything other than the divorce itself you would be well advised to consult with a lawyer. In many cases people getting divorced also have issues relating to children, support or property to be dealt with. In those cases you should see a lawyer experienced in family law matters to make sure your rights are being fully protected.
As with anything else, we only know what we know and don't know the things we aren't aware of. You might discover later, when it will likely be too late, that you actually needed a lawyer to deal with a matter which didn't cross your mind at the time. As well, the various steps require that the proper documentation be prepared and taken to the proper court office. Sometimes the time involved in finding out how to do all these things on your own may not be worth the saving in lawyer's fees. See Choosing a Lawyer and Keeping Costs Down for further information.
What are the grounds for divorce?
In Canada there is only one ground for divorce: breakdown of the marriage. Paragraph 8 (2) of the Divorce Act states that "Breakdown of the marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or(b) the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage:
(i) committed adultery, or(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses."
The most common way to establish a breakdown of the marriage is to prove that the spouses have lived apart (have been separated) for at least one year immediately before the divorce judgment is granted and were living separate and apart at the time the proceedings began. That is, if you are using one year of separation to establish the breakdown of the marriage you can't begin the proceeding until after the spouses are already separated and can't finalize it until at least one full year of separation. But you don't have to wait a year of separation to get the proceedings started. See Separation for more information about how you can tell if you are separated.
From time to time one of the parties wants to get the divorce without waiting the year from date of separation. This can be done if adultery or cruelty can be established. Usually raising one of these to show a breakdown of the marriage will cause more upset and aggravation than it is worth. If the other side simply decides to deny the allegation you may have converted an uncontested divorce into a contested one and it likely won't be finalized within the year anyways. Almost all divorces begun nowadays show breakdown by one year separation.
What information do I need to begin a divorce?
The Divorce Petition requires a lot of information. You can help your lawyer and save time if you already have that available. See the Divorce Petition Check List for the information you should start gathering.
You will need to file a certified copy of your marriage certificate and, if one of you has already been divorced, a certified copy of the Decree Absolute or Divorce Judgment.
Can I get my divorce if there are still things we haven't settled?
Yes. The Divorce Act makes a distinction between the act of getting people freed from the legal relationship of marriage and finalizing the various other issues that may still exist between them such as spousal support, child support, custody and access. These other things are called collateral issues and they can be dealt with after a divorce or as part of the divorce proceedings, but after the divorce itself has been granted. This allows parties who want to remarry to do so without forcing them to first settle the corollary issues.
What matters are dealt with in the divorce proceedings?
Obviously, bringing the legal relationship of marriage to an end is the chief function of the divorce proceeding. As well, the Divorce Act allows the court to deal with issues of spousal support, child support, custody and access.
But you can't deal with division of property or other property issues under the Divorce Act. These must be dealt with under the legislation of the province or territory in which you live. In Ontario these are dealt with by the Family Law Act.
I want to remarry in my own religion but my spouse is preventing it. Is there anything I can do about this?
Yes. Section 21 (2) of the Divorce Act deals with cases where the parties are before the court in a divorce proceeding and one of the spouses is refusing to remove a barrier to the remarriage of the other spouse in that person's religion. If the removal is within the first spouse's control the court may, subject to terms it considers appropriate, dismiss any application filed by the refusing spouse or strike out any of the pleadings or affidavits of that spouse. That can be quite severe if the other spouse is seeking or opposing support or such things as a division of property or an equalization payment.
This section doesn't apply where the power to remove the barrier to a religious remarriage lies with a religious body or official. And the court may refuse to exercise its jurisdiction under section 21 (2) where the refusing party files an affidavit indicating genuine grounds of a religious or conscientious nature for the refusal and satifies the court that there are genuine grounds of a religious or conscientious nature for refusing to remove the barrier.
How can I see the Divorce Act?
What is an "uncontested divorce"?
Most often the divorce itself is not contested. In those cases the party being served with the divorce documents may chose not to oppose the request for a divorce and not file any responding material. It is no longer seen as a sign of shame if the other person "gets" the divorce. This usually hapens where the parties have already negotiated the terms of their separation and have a separation agreement, marriage contract or cohabitiation agreement. The divorce judgment in these cases may include the terms already agreed upon or not make any reference to anything but the divorce itself.
If you are the person being served with divorce documents and think that everything has been agreed upon, you should be sure you have it in a proper agreement before allowing the divorce to go through uncontested. This is one of those situations where you should have advice from a family law lawyer before deciding whether to let the divorce go through uncontested. Just thinking you and your spouse have agreed upon something may not make it so, even if the two of you are in agreement.
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