Federal law applies to married spouses who are seeking a divorce and is the same throughout Canada. When a court grants a divorce, the marriage is ended. The Divorce Act sets out how a divorce can be obtained. It also deals with matters related to divorce, such as parenting arrangements and financial (child and spousal) support. The Divorce Act provisions on parenting arrangements and support are currently very similar to the provincial laws in these matters. Recent amendments to the Divorce Act (anticipated to come into effect March 1, 2021) will make some changes to the law and terminology respecting parenting arrangements. This will be somewhat different than under Manitoba law (The Family Maintenance Act).
Is there a Residency Requirement?
An application for divorce can only be made in a province if one of the spouses has been a resident of that province for the past year or more.
What are Joint Petitions?
Usually one spouse files the application for divorce, called a Petition for Divorce, although the Divorce Act allows spouses to file the petition together. Some spouses feel a joint petition is more appropriate when they agree on all issues.
What are Grounds for Divorce?
Spouses cannot obtain a divorce simply by agreeing to it. The court must be given proof that marriage breakdown has occurred. Marriage breakdown is the sole ground for divorce, but it can be established in one of three ways:
- separation of one year or more
- mental or physical cruelty
Separation of one year or more
Either or both spouses may apply for a divorce on the ground of marriage breakdown, due to a separation of a year or more. The separation does not have to be a joint decision. It does not matter if only one spouse wants the separation, as long as a separation actually occurred.
A Petition for Divorce can be filed in court before the full year of separation has passed, as long as the spouses are actually separated at the time the divorce petition is filed. The court cannot grant the divorce until the spouses have been separated a full year, but filing the petition early means it can be heard quickly after the year has elapsed.
The required year of separation is not broken if the parties live together (cohabit) again in an attempt to reconcile, for no more than 90 days in total.
A spouse can seek a divorce at any time if the other spouse has committed adultery (i.e., the spouse voluntarily had sexual intercourse with another person). Even if spouses are separated from each other, voluntary sexual intercourse is adultery and can be used by the other spouse to ask for a divorce.
The spouse does not need to be separated to apply. The spouse must prove to the court that the adultery took place.
A spouse can also seek a divorce at any time on the basis that the spouse has been treated with cruelty by the other spouse. Cruelty can include acts of physical violence and causing severe mental anguish. The spouse applying for the divorce must prove that the cruelty took place, that it seriously affected them, and that it made living together unbearable.
What is a Divorce Hearing?
Uncontested divorce applications may be decided based on either written sworn statements (affidavits),or oral evidence given by one or both spouses under oath at a short court hearing.
Where the spouses do not agree on the divorce, or on issues relating to the divorce, such as parenting arrangements (custody and access) or support, they have to go through the court stream for contested family law matters. If the judge feels the spouses may be able to reconcile, the judge may adjourn the divorce hearing to give them the opportunity to do so.
The court must also be satisfied that reasonable arrangements have been made for the support of the parties’ children. If the judge feels that reasonable arrangements have not been made, the judge must postpone granting the divorce until that is done.
What is a Divorce Judgment?
If, after considering the evidence, the judge believes that marriage breakdown has been established, the judge grants a preliminary order called a divorce judgment. The parties can’t remarry until the divorce becomes final (takes effect). The divorce automatically becomes final on the 31st day after the divorce judgment is granted, unless the court has ordered that it is final sooner, or one spouse appeals it.
After a divorce becomes final, the former spouses should obtain a certificate of divorce from the court office. This document proves that the divorce has taken place and will need to be produced if either person wishes to marry again.
Are there other Orders available on Divorce?
A judge dealing with a divorce application can also consider questions of parenting arrangements (custody and access), child and spousal support, as well as matters governed by provincial law, such as claims for property and protection orders. Provisions relating to such matters are contained in a separate order. The court can also grant temporary orders (interim orders) of custody and support, where such decisions are needed before a trial can take place and the issues resolved on a final basis.