CANADA Law and Practice Contributed by: Lorne MacLean, KC, Fraser MacLean, Sophie Bartholomew and Rana Yavari, MacLean Law
two years, parties who are found never to have been spouses may – but not always – be ineligible for spousal support and property division, depending on provincial law. Unlike divorce, which requires a one‑year separation, an annulment can be granted immediately after filing. The longer a party waits to seek an annulment, the more difficult it may be to obtain. Marriages may be annulled for two broad reasons: • Lack of formal validity – the marriage ceremony did not comply with legal requirements. • Essential validity defects, which may include (e) inability to consummate the marriage; and (f) extreme intoxication or impairment preventing genuine consent at the ceremony. In Canada, the date of separation is the key “trigger ‑ ing event” for financial claims, including child support, spousal support, injunctive relief (such as worldwide Mareva injunctions), and property division. Separation occurs when spouses form the intention to live apart permanently, and there must be clarity and evidence of this intention. Separation can exist even when the parties still live in the same residence, provided it can be shown they are living separate lives – often due to financial constraints or one party refus ‑ ing to move out. For unmarried couples, where statutory time require ‑ ments determine eligibility for financial relief, the date of separation can become a highly disputed issue. 1.2 Choice of Jurisdiction in Divorce Proceedings Canada’s Divorce Act governs jurisdiction for com ‑ mencing divorce proceedings and requires that one or both spouses be habitually resident in a Canadian province or territory for at least one year before start ‑ ing a divorce action. (depending on the province): (a) a prior existing marriage; (b) spouses being too closely related; (c) being under the age of majority; (d) lack of consent;
Since July 2005, the same grounds for marriage and divorce apply in Canada to both same‑sex and oppo ‑ site‑sex couples. Same‑sex couples who were mar ‑ ried in Canada but live in a foreign jurisdiction that does not recognise their marriage are exempt from the residency requirement. Habitual residence is the primary criterion for a Cana ‑ dian court to assume jurisdiction over a divorce pro ‑ ceeding. In Canadian divorce matters, nationality is not relevant; the focus is solely on where a person resides, not their citizenship. “Residence” refers to the place where a person lives with some degree of permanence, and a person may have more than one habitual residence at the same time. “Domicile” is a broader legal concept usually referring to a permanent home, but under the Divorce Act, habitual residence – not domicile – is the deter ‑ mining factor. A party may contest Canadian divorce jurisdiction on the following grounds. • Neither party was habitually resident in the prov ‑ ince or territory for the required one‑year period, which removes the court’s jurisdiction over the divorce and related relief. • There are ongoing or prior proceedings between the same parties in another jurisdiction. • A contractual agreement between the parties (such as a prenuptial agreement) specifies a different jurisdiction. A party may also apply to stay divorce proceedings in Canada in order to pursue the matter in a foreign juris ‑ diction, under the doctrine of forum non conveniens. A Canadian court will grant a stay only if the foreign jurisdiction is clearly more appropriate for resolving the dispute. The party seeking the stay bears the burden of prov ‑ ing that the foreign forum is more suitable, based on factors such as: • the location of the parties, witnesses, experts, and evidence; • the convenience and efficiency of each forum;
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