Divorce is not easy for most people, but at least it is one of the simpler issues to deal with in family law. For many people, if you want nothing except a divorce, you can get everything done without ever setting foot in court, or even having a lawyer go to court for you — and that’s a good thing, because going to court is complicated and stressful, and paying a lawyer to go to court for you can cost a lot of money.
Contrary to what some people believe, though, people in Canada do not become divorced “automatically” after they have been separated for some period of time. Only a judge of a “superior court” can divorce a couple. That can only happen after at least one of a couple asks the court to divorce them.
The Divorce Act is a federal law, and it controls who can get divorced and how. It is the law that says only a judge of a “superior court” can grant divorce orders.
In Ontario, “superior court” means the Ontario Superior Court of Justice. In BC, it means the Supreme Court of BC. Other provinces have different names for their superior courts.
Even though the Divorce Act is a federal law, the provinces actually control how it gets implemented. That means it’s important to understand the rules of court in the province you (or maybe your spouse) live(s) in to know how to actually get a divorce order.
The Divorce Act specifies that to even apply for a divorce, one of the two married spouses (it is still illegal to have more than one married spouse in Canada) must be “ordinarily resident in the province [where you’re applying for the divorce] for at least one year immediately preceding the commencement of the proceeding.”
There are three reasons why a judge will grant a divorce order to a married couple:
Note that you cannot cheat on your spouse (or treat him or her with cruelty) and then ask for a divorce because of it. It is only when your spouse does those things to you that you can ask for a divorce.
In practice, though, family law lawyers almost always ask for divorce orders for their clients based on reason number 1 (living separate and apart for at least one year); we rarely advise our clients to apply for a divorce because of reasons 2 or 3.
Partly, this is because very few lawyers want to aggravate what is already a painful and difficult process. Accusations of cheating or cruelty usually just inflame an already emotionally charged situation, and that’s not good for anyone.
Also, no matter what reason you choose, you must provide the judge with evidence that it has actually happened. When one spouse swears in an affidavit that “my husband and I have lived apart for 1 year and we have no hope of reconciling” the husband rarely argues. But when one spouse swears in an affidavit, “my wife punched me,” the wife often feels compelled to deny the accusations. If spouses deny accusations, then they have to end up in court. The cost of going to court is orders of magnitude more expensive than the cost of a simple, uncontested divorce.
Good lawyers give their clients good advice and tell them that unless you need to get divorced in a hurry, the smartest option is to just claim a divorce because you are living separate and apart.
Only married people can get a divorce. That’s because a divorce is, technically, an order of a judge that ends a marriage. If you’re living together for 50 years, but were never married, then you don’t need your marriage ended.
The speediness with which the court orders your divorce will depend largely on the court registry that is processing the paperwork. At some times of the year, some registries will process your paperwork for a divorce order quickly. At other (and maybe most) times in Ontario and BC, it can take many months before a judge has your divorce order in front of her to sign. It’s frustrating, but unless and until someone reforms the court registries, there is little that can be done about it.
If you have not been separated for a year yet, in some rare cases, you may be able to get things started earlier if you are asking for the divorce because of adultery or abuse. (But see my comments above.)
In some rare cases, you may be able to get in front of a judge quickly and get him or her to grant a divorce without waiting for the registry to process your paperwork. If you’re one of the few couples that might be in a situation where this would work, and you’re thinking of trying this trick, you will need to know the details of court procedure in your province. As always, talk to a lawyer to see if this is something you might be able to do.