Divorce in Canada

The word "divorce" is often used to describe the end of a marriage (separation) and all of the issues which result from that event.

In this post, however, we are addressing divorce as a separate claim in a court case - the official termination of the marriage by a divorce order.

Here are some facts about which you may not yet know:

1. in Canada, only a judge can grant a divorce. While a marriage can be performed by a variety of individuals, only judges are empowered to officially declare a marriage to be over (in Ontario, that would be a judge of the Superior Court of Justice). For this reason, if you want a divorce, sooner or later you will have to start a court case to address that issue (although, depending on the facts of your case, that may be your only claim before the court);

2. Canada is a "no fault" jurisdiction. This means that the spouse requesting the divorce does not have to prove uncomfortable facts as a basis for the divorce. For example, that spouse does not have to either allege or prove an affair by the other spouse, to allege or prove abuse or to cite "irreconcilable differences", which is a claim often heard from our neighbors to the south.  Many successful divorce applications do not even cite a reason for the separation. One can alleged adultery or cruelty but these are very rare claims these days, involving complex issues related to evidence. In my many years of practice, I can count on the fingers of one hand cases in which either adultery or cruelty were pleaded as the basis for a divorce request.

3. 99% of couples in Canada divorce on the basis of a one-year separation.

4. you CAN file with the Court your materials for a divorce before the first anniversary of your separation - the point is that unless there are very special circumstances to your case, the divorce is not going to be granted until the one-year is up;

5. most divorces in Ontario proceed "over-the-counter" - this means that no one appears to actually "argue" the divorce and there is no live hearing on the issue - the divorce is completed through paperwork filed with the court. The required materials are submitted at the court office and then reviewed by a judge who, if satisfied that all issues are in order, grants the divorce.

6. the divorce, once granted, becomes "effective" 30 days from the date of the divorce order itself - this "cooling period" can be set aside by the court in unique circumstances (on request) but generally speaking, you will not be able to apply for your marriage license until this period is over.

7. divorces are not automatic. The court has the right to decline a request for a divorce if the court is not satisfied, based on the materials filed, that reasonable arrangements are made for the support of children. This is a very important area to consider when filing your divorce materials, particularly your affidavit in support of your divorce request.

8. a divorce can be torn away ("severed") from the rest of the issues between the parties and proceed while those issues wait to be completed. Again, the considerations in 7. above apply. In other words, a separated couple can be divorced even before they are able to finalize property issues, for example, or issues related to spousal support.

Divorces in Canada are governed by technical procedure and the courts' expectations for materials filed are high. If in doubt while completing the paperwork, consult a lawyer......

What is "equalization"

Equalization is a formula, set out in Ontario's Family Law Act, which we use to effect property division between divorcing spouses (the formula applies only to parties who are married to each other).

I used the phrase "property division" because that generally helps a client understand where this concept is used among issues common to a matrimonial case. Technically, however, the phrase is incorrect in describing what happens in Ontario: the Family Law Act envisions not the actual division of property (each party is entitled to 2 chairs out of 4) but the sharing of "value" - the spouses share with each other the increase in their respective net worths between the date of marriage and the date of separation. This means that the spouse with a greater net family property (see explanation elsewhere in this blog) has to give the other spouse one-half of the difference between them, with the effect that their net family properties are equalized.

Using the simplest example possible, if a husband and a wife were separated and the only asset between them was a pension, which resulted from the husband's employment, then the value of that pension would be considered his net family property. If the pension has the value of $100,000, and the wife has no assets of any kind at separation, then the husband would have to pay to her $50,000 in an equalization payment. At the end of this process, each would end up with $50,000.

There are other important elements which fit into the equalization formula and you will find them further explained in other posts in this blog (eg: "excluded property" and "date of marriage deductions").