CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
MacLean Law 2900-1021 West Hastings Street Vancouver, BC Canada Tel: +1 604 697 2800 Fax: +1 604 682 0556 Email: lmaclean@macleanlaw.ca Web: www.macleanlaw.ca
1. Divorce 1.1 Grounds, Timeline, Service and Process Canada’s Divorce Act provides a single ground for divorce that applies equally to heterosexual and same‑sex married spouses. Canada emphasises a “no‑fault” approach to reduce conflict. The single ground for divorce in Canada is “break ‑ down of the marriage”. There are three ways to prove this. • a. No‑fault ground – the spouses have lived sepa ‑ rate and apart for at least one year. • b. Adultery by one spouse. • c. Mental or physical cruelty severe enough that continued cohabitation is intolerable. Because adultery and cruelty carry social stigma and tend to increase conflict, courts generally prefer the no‑fault one‑year separation ground. There is no waiting period before filing for divorce in Canada. Parties may file on the day of separation, although the divorce cannot be granted until one year has passed from the date of separation. Prompt filing is often important because divorce pro ‑ ceedings can include corollary relief, such as: • protection from family or intimate partner violence; • child parenting time, responsibilities, and guardian ‑ ship; • child support; • spousal support; and • interim use and possession of property, including the family home.
Canada’s child and spousal support awards are often generous, and the parent with primary care of the chil ‑ dren may receive more than 50% of the combined net income of the spouses. Canadian courts also focus on protection from family violence and preservation of assets until trial or settlement. Immediate interim relief for parenting and financial matters is usually sought through applications supported by affidavits from the parties and relevant witnesses. Divorce proceedings begin with filing a Divorce Peti ‑ tion or similar Claim, often accompanied by requests for related relief such as parenting, support, property division, and protective orders. If personal service is not possible, the court may permit substituted service. In certain cases, religious marriages may be legally recognised for the purposes of spousal support and family property division. Several provinces have regu ‑ lations specifying when a religious marriage ceremony is valid. Many provinces require a provincial marriage licence, though some allow exceptions that validate religious marriages without one. Annulment and Separation Compared to Divorce Annulment applications are rare in Canada today and are sometimes pursued where cultural or religious stigma attaches to divorce. An annulment means the marriage is treated as though it never legally existed. The test for annulment varies slightly by province. Because many provinces extend some or all rights of married couples to unmarried couples after 2–3 years of being in a marriage-like relationship, or sooner if they have a child, the practical difference between annulment and divorce is greatest in short‑duration relationships without children. In relationships under
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