|
A Divorce is simply the ending a marriage by means of an order of the court
declaring a marriage between two spouses to be at an end.
A Divorce must be obtained so
that a spouse is free to remarry. Getting a divorce does not always mean
that there is a termination of mutual obligations between the previous partners.
Quite often, Divorce is the final step taken only after all other issues, such
as custody, support, and division of property have been dealt with.
A person may only apply for a Divorce in Alberta if they have lived here for
at least one year. In order to obtain a divorce you must meet the
requirements of establishing a marital breakdown as evidenced by any of the
following:
1. separation for one year
2. adultery of the other spouse
3. physical or mental cruelty on the part
of the other spouse
If all other issues have been settled, it is usually possible to apply for a
"desk divorce" which does not require any personal attendance before a Judge.
The proper documents are simply filed with the courthouse and are reviewed by a
Judge without lawyers or parties present.
If all issues can not be resolved outside of the courthouse, then the matter
will have to be resolved by means of court trial. Trials are expensive,
time consuming, and at times stressful
The process of obtaining a divorce requires many documents and involves
adherence to many procedural rules. It can be a very time-intensive and
frustrating process, but the lawyers of Dimnik & Company are committed to
helping you through to the end.
The Divorce Lawyers of Dimnik & Company are also members of a collaborative
law association. Collaborative law is often a positive means of proceeding
with a divorce over the traditional litigation process. Please see our
page on collaborative law.
Frequently Asked Questions:
Why you may need a divorce?
You will need a divorce to legally end a previous marriage so as to remarry.
Who can get divorced?
Only married spouses can be or need be divorced. Common law spouses, by
definition have not been married and do not need to be (and cannot be) divorced.
In light of the recent Supreme Court of Canada decision, married spouses now
include married same-sex couples. Couples who are either of the same-sex or the
opposite sex and are not married are called common law spouses (provided they
meet the requirement of continuous cohabitation for three years or are the
parents of a child cohabiting in a relationship of some permanence). The
definition of spouse varies depending on the particular part of the legislation
and you should be careful to ensure that the applicable definition of spouse
includes your situation.
Grounds for a divorce
In Canada, there are three grounds on which you can obtain a divorce:
1. Living separate and apart for one year
2. Adultery
3. Cruelty
There is no limitation period for a divorce but there are limitation periods for
making some of the claims discussed below. You should consult a lawyer so that
you are aware of any limitation periods.
Separate and apart for one year
Married couples who have lived separate and apart for at least one year with no
reasonable chance of reconciliation can obtain a divorce on those grounds.
Spouses must not have reconciled for a period or periods totaling more than 90
days during this year. If spouses do reconcile for more than 90 days, the
commencement date for the one year period starts over. The date that the parties
commenced living separate and apart is referred to as the date of separation date and is a factual determination based on the couples'
relationship. However, it is important to note that in some rare circumstances parties can live separate
and apart under the same roof. That is, there need not be a physical separation
if the parties are in fact living separate and apart and meet the legal
requirements of same. In this circumstance It can often be a
difficult task to determine the exact date of separation.
Adultery and/or cruelty
These grounds for divorce are remnants from the old fault based system. They are
infrequently used. You can obtain a divorce on either of these grounds without
waiting for one year, which means that technically you can obtain a divorce
immediately once the claim is proven. However, these grounds are usually
contested and can be very difficult to prove in court. Given such claims are
likely to be opposed, you likely will not obtain a divorce on either of these
grounds before the one year period is over in any event.
Jurisdiction to be divorced in Canada
Spouses do not need to have been married in Canada to obtain a Canadian divorce.
If you are legally married, the only requirement to obtain a divorce is that at
least one of the spouses must have been ordinarily resident in the province in
which the divorce is claimed for the preceding year.
The legislation
There are three statutes in Ontario that govern the rights and obligations of
spouses upon a breakdown of their relationship. The Federal Divorce Act (which
includes the Federal Child Support Guidelines) governs issues such as divorce,
custody, child support, and spousal support for spouses who are married and wish
to get divorced. It does not govern matters relating to the division of their
property.
The Alberta Family Law Act governs issues such as parenting of
children, child support and spousal support for spouses who are married but are
not claiming a divorce and spouses who are not married.
The Alberta Matrimonial Property Act deals with property division for
all spouses married or not. This Act governs matters relating to the property of
married spouses who want to get divorced because the Divorce Act does not
deal with property division.
Dealing with custody and support (child and spousal)
Aside from obtaining a divorce, separated spouses, including common law spouses,
must deal with a number of issues arising from the breakdown of their
relationship. There are time limits for some of these claims and parties should
be very careful not to miss the applicable limitation periods.
Parties who have children together must deal with the issues of custody, access,
and child support. Prior to granting a divorce, the court must be satisfied that
reasonable arrangements for the support of the children have been made. Custody
arrangements dictate who will make the major decisions regarding the children
and access arrangements determine where the children are going to live. Child
support is based on income and is dictated by the applicable Child Support
Guidelines.
Spousal support is based on a number of factors, including need and ability to
pay. The Department of Justice has recently introduced the Spousal Support
Advisory Guidelines which are not mandatory but advisory.
Property Issues - Married Persons
Separated spouses must deal with the issues of property division and possession
of the matrimonial home pursuant to the Matrimonial Property Act. This
legislation only applies to married spouses. The starting point, absent
compelling reasons to the contrary, provides for a mechanism called
"equalization," whereby the spouses equally share their combined
increase/decrease of their property acquired during the marriage. There
are certain property exemptions where property acquired during the marriage does
not form part of the matrimonial property to be divided. There may be
other legislation that affects property division, such as specific legislation
dealing with pensions.
Property Issues - Common Law Persons
Common law spouses have no property rights per se. Generally, common law
couples deal with property issues on the basis of Trust Law where property
divisions is often based upon the contributions (both financial and
non-financial) of the parties. This can often be a difficult task as it requires
a reconstruction of the previous financial relationship of the parties.
Procedure
Parties can deal with the issues of custody, support, and property before or
after the expiration of the one year period. There are many ways that parties
can deal with these issues, such as through negotiation, mediation and/or
arbitration of a Separation Agreement, by court proceedings, or through
Collaborative Family Law.
Parties can only obtain a divorce by commencing a court application. This
application can be started before or after the one year period but a divorce
will not be granted until the one year has expired. The divorce judgment becomes
effective 31 days after it is granted.
| 
