The Divorce Process in Canada: A Step-by-Step Guide for Newcomers

Going through a divorce is never easy, and for newcomers to Canada, the process can feel especially daunting when you are unfamiliar with the legal system, the language, and the cultural norms. Whether your marriage took place in Canada or in another country, Canadian law governs the divorce process if you or your spouse have been living in Canada. This guide will walk you through each step of the divorce process, explain your rights and obligations, and point you toward resources that can help.

It is important to understand that divorce in Canada is a federal matter governed by the Divorce Act, but many related issues such as property division are governed by provincial law. This means the process can vary somewhat depending on which province you live in. This guide provides a general overview that applies across Canada, with notes about provincial differences where relevant.

The One-Year Separation Requirement

The most common ground for divorce in Canada is a one-year separation. This means that you and your spouse must have lived separate and apart for at least one year before a divorce can be granted. You do not need the court's permission to separate; you simply need to start living apart. The one-year clock starts on the date of separation, and you can actually file your divorce application before the year is up, but the divorce will not be granted until the one-year period has elapsed.

Living "separate and apart" does not necessarily mean living in different homes. In some cases, financial constraints make it impossible for separated spouses to maintain two households. Canadian courts recognize that spouses can be separated while living under the same roof, as long as they are living independent lives (separate bedrooms, separate finances, not socializing as a couple, etc.). However, proving separation under the same roof can be more complex, and it is advisable to keep records and have witnesses who can confirm the arrangement.

Exceptions to the One-Year Rule

There are two other grounds for divorce that do not require a one-year separation: adultery and cruelty. If one spouse has committed adultery, the other spouse can file for divorce immediately without waiting for the separation period. Similarly, if one spouse has been subjected to physical or mental cruelty that makes continued cohabitation intolerable, they can file for divorce without the one-year wait. However, these grounds are rarely used in practice because they require proof and can make the divorce process more adversarial and expensive.

Filing for Divorce: The Process

To file for divorce in Canada, you must meet the residency requirement: either you or your spouse must have been ordinarily resident in the province where you are filing for at least one year immediately before the application. If you recently arrived in Canada, you may need to wait until you meet this requirement.

Uncontested vs. Contested Divorce

A divorce is considered uncontested (or joint) when both spouses agree on all issues, including the division of property, spousal support, and arrangements for children. An uncontested divorce is significantly faster, simpler, and cheaper than a contested divorce. In many cases, an uncontested divorce can be completed without a court appearance.

A contested divorce occurs when the spouses cannot agree on one or more issues. This type of divorce requires court intervention and can involve multiple court appearances, evidence gathering, and potentially a trial. Contested divorces can take months or even years to resolve and can cost tens of thousands of dollars in legal fees.

Steps to File for Divorce

The general steps to file for divorce in Canada include preparing and filing the application for divorce with your provincial superior court, serving the application on your spouse (delivering it according to the rules of court), waiting for your spouse's response (they typically have 30 days to respond), resolving any disputed issues through negotiation, mediation, or court proceedings, and obtaining the divorce judgment from the court. The divorce becomes final 31 days after the judgment is granted, at which point either party is free to remarry.

For detailed information about filing fees and court procedures in your province, visit the Department of Justice divorce page. You can also consult our child custody and family law guide if children are involved in your divorce.

Division of Property

One of the most complex aspects of divorce for newcomers is the division of property. In Canada, property division is governed by provincial law, and the rules vary from province to province. However, the general principle across Canada is that property acquired during the marriage should be divided fairly (though not necessarily equally in all provinces) between the spouses upon divorce.

How Property Division Works

In most provinces, the law requires an equalization of net family property. This means that each spouse calculates the value of their assets minus their debts at the date of separation, subtracts the value of property they brought into the marriage, and the spouse with the greater net family property pays the other spouse half the difference. The matrimonial home is typically treated differently and may be divided equally regardless of when it was acquired or who paid for it.

Property that may be excluded from division includes inheritances and gifts received from third parties during the marriage (as long as they were kept separate), property owned before the marriage (except the matrimonial home in some provinces), and personal injury settlements. However, the rules are complex and vary by province, so legal advice is essential.

Spousal Support

Spousal support (sometimes called alimony) is a payment that one spouse may be required to make to the other after separation or divorce. Unlike child support, spousal support is not automatic. It depends on several factors, including the length of the marriage, the roles each spouse played during the marriage, the financial needs and means of each spouse, and the impact of the marriage on each spouse's earning capacity.

The Spousal Support Advisory Guidelines provide a framework for calculating the amount and duration of spousal support, though they are not legally binding. Courts use them as a starting point and adjust based on the specific circumstances of each case.

Types of Spousal Support

Spousal support can be compensatory (compensating a spouse who made sacrifices for the family, such as giving up a career to raise children), non-compensatory (addressing the financial needs of a spouse who cannot support themselves after the marriage), or contractual (based on an agreement between the spouses, such as a prenuptial or separation agreement). The support can be paid as a lump sum or as periodic payments, and it can be temporary or indefinite depending on the circumstances.

Children and Divorce

When children are involved in a divorce, their needs take priority. The court must be satisfied that reasonable arrangements have been made for the children before granting a divorce. This includes arrangements for decision-making responsibility (custody), parenting time (access), and child support.

Child support is calculated using the Federal Child Support Tables, which set out the basic amount based on the paying parent's income and the number of children. Parents cannot agree to waive or reduce child support below the table amount, as child support is considered the right of the child, not the parent. For more detailed information about custody and child support, see our comprehensive child custody guide for newcomers.

Parenting Plans

A parenting plan is a detailed document that outlines how parents will share responsibilities and time with their children after separation. A good parenting plan covers the regular parenting schedule, holiday and vacation schedules, how decisions about education, health, and religion will be made, communication between the parents and between each parent and the children, how disputes about the parenting plan will be resolved, and rules about introducing new partners to the children.

Costs of Divorce in Canada

The cost of divorce in Canada varies enormously depending on whether it is contested or uncontested and the complexity of the issues involved. Here is a general breakdown of potential costs:

• Court filing fees: These vary by province but typically range from $200 to $650
• Uncontested divorce (with lawyer): Approximately $1,500 to $3,000 for a simple, uncontested divorce where the lawyer handles all the paperwork
• Contested divorce: Can range from $10,000 to $50,000 or more, depending on the issues and how long the case takes to resolve
• Mediation: Typically $100 to $300 per hour, with some subsidized or free options available
• Online divorce services: Some services offer document preparation for uncontested divorces for $300 to $1,000

International Considerations for Newcomers

As a newcomer, you may have additional considerations related to your immigration status, international marriages, and foreign assets. A divorce in Canada is generally recognized internationally, but you may need to take additional steps to have it recognized in your home country. Similarly, a marriage that took place abroad is generally recognized in Canada as long as it was valid under the laws of the country where it took place.

If you are a sponsored spouse and your relationship breaks down, it is important to know that the breakdown of your marriage does not automatically affect your immigration status if you already have permanent residence. The sponsor's obligation to provide financial support under the sponsorship agreement continues for three years after you become a permanent resident, regardless of the divorce. For more information about immigration matters, visit the IRCC website.

Divorce and Immigration Status

If you are in the process of being sponsored for permanent residence and your relationship ends, your immigration application may be affected. You should consult an immigration lawyer as soon as possible to understand your options. In some cases, you may be able to apply for permanent residence on humanitarian and compassionate grounds. Our guide to finding an immigration lawyer can help you find the right professional support.

Getting Support Through the Divorce Process

Divorce is emotionally challenging, and newcomers may face additional stressors such as isolation from family support networks, language barriers, and financial uncertainty. It is important to seek emotional support as well as legal help during this time. Many community organizations, settlement agencies, and religious institutions offer counselling and support groups for people going through separation and divorce.

Your mental health matters during this difficult time. If you are struggling, reach out to your family doctor, a community health centre, or a crisis line. Our guide to healthcare for newcomers includes information about accessing mental health services in Canada.

WelcomeAide is committed to supporting newcomers through every challenge. Our AI Newcomer Navigator can answer your questions about divorce, family law, and other settlement topics in your language. Explore our blog for more guides, learn about our mission, or see how to get involved in supporting newcomer communities across Canada.