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Divorce

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Divorce

Divorce Law and Legislation

Canadian divorces are governed by the Divorce Act, RSC, 1985, c3 (the “Act” or “Divorce Act”), which is a federal Canadian statute. Federal statutes apply Canada-wide which means that divorces in Canada are governed by the same Law across Canada, despite the Province of either spouse. That is not the case for example for common-law partnerships or the division of assets and liabilities of a marriage. Both of these situations would be governed by the Family Law Act, RSO, 1990, c F3, which is a Provincial statute and only applies to Ontario.

Corollary relief is also governed by the Divorce Act. Corollary relief are claims that are filed as an “accessory” to the divorce claim, which would be considered the main claim under the Act. Corollary relief includes claims for spousal support, child support, parenting orders, contact orders, relocation orders..etc.

Contrary to popular belief, spouses of foreign marriages may apply for a divorce in Canada and have their divorce be governed by the Canadian Divorce Act, as long as the marriage can be legally recognized as one in Canada. Typically, this is not very difficult to demonstrate.

Another popular belief is that both spouses need to be present in Canada in order to apply for and be granted a divorce. That is also incorrect. As long as one spouse has lived in the Canadian Province where the client applies for a divorce for a full year immediately before the divorce application, they are eligible to apply for a Canadian divorce. There is one exception to this general rule, but that exception applies to Canadian marriages that cannot be undone in a foreign jurisdiction because they do not recognize the Canadian marriage. In that case, the marriage may be undone under the Civil Marriage Act, SC, 2005, c 33.

 

Grounds for a Divorce

Canada has a no-fault divorce. A “marriage breakdown” is sufficient reason to be granted a divorce in Canada (section 8(1) of the Divorce Act). In order to establish a marriage breakdown, one of the criteria below must apply to your case:

  1. YOU AND YOUR SPOUSE HAVE BEEN LIVING APART FOR AT LEAST ONE YEAR. Living apart includes living in the same household and but living separate lives. You may consult a divorce lawyer to determine whether you are considered separated under Canadian divorce laws. Call 647 806 9184 or Email contact@ranacharif.ca to book a consultation.
  2. YOUR SPOUSE HAS BEEN PHYSICALLY OR MENTALLY CRUEL TO YOU. Family violence and domestic violence is a significant red flag in Canada and are not tolerated. Family violence holds weight in all other family claims such as parenting time, decision-making responsibility, civil protective orders etc. It also holds weight and allows you to break a lease, without consequences, when violence is present.
  3. YOUR SPOUSE HAS COMMITTED ADULTERY. In many cases, proving adultery is part of the work that a divorce file includes. It is important not to be distracted with proving adultery when other claims are equally as important, if not more, such as parenting time, dividing assets, child support etc.

 

How to Apply for a Divorce

As a family law firm in the Greater Toronto Area, we can do this work for you. Although divorce law is federal as discussed above, we would apply for a divorce in Ontario. Each Province is responsible for processing divorces. It is important to seek legal advice before applying for a divorce. When clients go through the divorce process as self-represented individuals, they often commit errors in their applications which do not include all of the claims that spouses may include, to protect themselves.

Clients are often unaware of their legal rights in respect of all details surrounding the breakdown of a marriage. There are many aspects to a divorce: the splitting of assets and property, setting aside a marriage contract or separation agreement if it is unjust or otherwise does not meet legal requirements, child support, spousal support, parenting orders, decision-making responsibility or more.

We recommend contacting us and booking a consultation to seek legal advice on your divorce, and process it in the most protective way possible that would guarantee your benefits under the Law. Legal misinformation could cost you a significant amount of financial and general loss.

 

Date:

December 4, 2021

Category:

Family

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