CANADA Law and Practice Contributed by: Heather Hansen, Shannon Beddoe, Maureen Edwards and Victoria Lunetta, McCarthy Hansen & Company LLP
1. Divorce 1.1 Grounds, Timeline, Service and Process The most common ground for divorce is a sepa - ration that lasts for a period of 12 months with no prospect of reconciliation. Canada still has two “fault” grounds (cruelty and adultery) but they are rarely – if ever – used. The same grounds apply to same-sex spouses. A divorce may be granted by the court after the parties have lived separately and apart with no reasonable prospect of reconciliation for a peri - od of no less than 12 months. The 12-month period starts on the date of separation, which is a finding of fact. There is no requirement that the parties obtain a court order or court finding of the date of separation – although, in some cases, a finding may be required if the parties cannot agree on the date of separation. Consent is not required to apply for a divorce. One or both parties can apply to the court for a divorce. The unwinding of the parties’ financial affairs and any child-related issues are corol - lary relief to the application for divorce. Service is personal on the responding party even if the divorce is uncontested. Canadian courts deal only with the severing of the legal marriage and the corollary issues of separation and divorce. Ontario courts may remove a religious barrier to marriage if certain criteria are met. Annulment Annulment is available in Canada in limited cir - cumstances related to a defect in the formality of the marriage. In practice, it is rare. An annulment can be ordered if a marriage lacks the formal validity requirements, such as proper registra -
tion for the marriage. An annulment can also be ordered if a marriage lacks essential validity requirements. By way of example, a marriage wherein one party did not understand the nature of the duties or responsibilities that flowed from a contract may be annulled on that basis. 1.2 Choice of Jurisdiction A spouse may only obtain a divorce in Canada if they, as the moving party, have lived in the juris - diction for a period of no less than 12 months. The divorce is the severing of the legal marriage only. There are four primary areas of corollary relief that have different jurisdiction require - ments, as follows. • Division of property – only married parties are able to make claims for statutory division of property. The court will take jurisdiction over division of property if the jurisdiction is the last common habitual residence of the parties as married spouses. Unmarried parties have equitable claims available to them that also require them to be habitually resident in the jurisdiction in order to make a claim to the courts. • Children’s issues – jurisdiction lies with the court where the child habitually resides at the time the application is commenced. In some circumstances, there may be concurrent juris - diction; in which case, the court will consider the question of preferred forum in determining the appropriate jurisdiction. • Child support – a parent can move for child support in the province where the child habitually resides, regardless of whether that jurisdiction was ever a common habitual resi - dence for the parents. • Spousal support – a spouse (married or common law) may move for spousal sup - port in the jurisdiction where the spouses last shared a common habitual residence. There
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