How to Apply for a Divorce in Canada After You and Your Spouse Separate

Who can apply for a divorce in Canada?

Divorce in Canada is governed primarily by the federal Divorce Act, but the actual court procedure is administered by the provinces and territories.

As a general rule, you can apply for a divorce under the Divorce Act if:

• you and your spouse are legally married under Canadian law, or your foreign marriage is recognized in Canada;
• your marriage has broken down; and
• either you or your spouse has been habitually resident for at least one year immediately before filing in the province or territory where the divorce proceeding is started.

You do not apply to the federal Department of Justice for your divorce. You apply to a court in the province or territory that has jurisdiction.

How does the one-year separation rule work?

The Divorce Act recognizes marriage breakdown as the only legal ground for divorce. One way to establish that breakdown is by living separate and apart for at least one year immediately before the divorce is determined.

You do not necessarily have to wait until the full year has expired before starting the court proceeding. The Act requires that you be living separate and apart when the proceeding begins and that at least one full year of separation has been completed immediately before the court determines the divorce.

This distinction matters: filing a divorce application and becoming legally divorced are not the same event.

When does the separation period start?

For the Divorce Act, spouses are considered to have lived separate and apart during a period when they lived apart and either spouse had the intention to live separate and apart from the other.

Separation does not always require two different addresses. The federal Department of Justice notes that some spouses remain in the same house after separating. Whether they are legally living separate and apart depends on the circumstances, and legal advice may be useful if this is disputed.

Can you try living together again during the separation year?

Yes. The Divorce Act allows spouses to resume living together for the primary purpose of reconciliation for a period, or periods combined, of no more than 90 days without automatically interrupting the one-year separation period.

If reconciliation succeeds and the spouses resume their marriage, the situation changes. If the attempt fails within the permitted reconciliation period, the earlier separation period can still count.

Are separation, adultery and cruelty separate grounds for divorce?

The legal ground for divorce is breakdown of the marriage. Under section 8 of the Divorce Act, marriage breakdown may be established in one of three ways:

• the spouses have lived separate and apart for at least one year immediately before the divorce is determined;
• the other spouse has committed adultery since the marriage; or
• the other spouse has treated the applicant with physical or mental cruelty of a kind that makes continued cohabitation intolerable.

The one-year separation route does not require proving misconduct by either spouse. The Department of Justice describes Canada as having no-fault divorce.

Where do you file a divorce application?

Section 3 of the Divorce Act establishes the ordinary jurisdiction rule. A court in a province has jurisdiction if either spouse has been habitually resident in that province for at least one year immediately before the proceeding begins.

The federal Department of Justice applies the same general rule when explaining divorce applications across provinces and territories.

Once you identify the correct jurisdiction, use that province or territory's official court, Ministry of Justice or Attorney General information to identify:

• the correct divorce court;
• the required application forms;
• filing and service rules;
• whether electronic filing is available;
• current court fees; and
• any additional local procedural requirements.

There is no single Canada-wide divorce application form or universal national filing portal.

Forms, fees and online filing depend on your province or territory

The Divorce Act is federal legislation, but provinces and territories are responsible for the process of obtaining a divorce. The Department of Justice confirms that divorce forms and procedures vary from one jurisdiction to another.

For that reason, a national guide cannot accurately state one universal filing fee, one mandatory document package or one online filing method. You must use the current requirements for the province or territory where the divorce proceeding is filed.

Depending on the jurisdiction, official forms and instructions may be available through the provincial or territorial Ministry of Justice, Attorney General or court system.

What other family issues may need to be resolved?

A divorce can be requested by itself or alongside related family-law issues. Depending on your circumstances, these may include:

• parenting arrangements and decision-making responsibilities;
• child support;
• spousal support; and
• division of property under applicable provincial or territorial law.

The Divorce Act governs parenting, child support and spousal support in divorce proceedings, while property division is governed by provincial or territorial law.

If child or spousal support must be obtained or changed when the other person lives elsewhere, see the separate Helpydo procedure on applying for or changing child or spousal support when the other person lives in another province or country.

The court must examine support for children of the marriage

Under section 11 of the Divorce Act, before granting a divorce the court must be satisfied that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable child-support guidelines.

If reasonable arrangements have not been made, the court must stay the granting of the divorce until they are made.

Step-by-step: start your divorce after separation

1. Record your separation date. The date matters if you are relying on one year of separation to establish marriage breakdown.
2. Confirm jurisdiction. Check that either spouse has met the one-year habitual-residence requirement in the province or territory where you intend to file.
3. Get the current local court forms. Use official provincial or territorial court or justice-system instructions rather than a generic Canadian form.
4. Decide what you are asking the court to determine. This can include the divorce itself and, where necessary, parenting, support or other claims within the court's jurisdiction.
5. Prepare and file the required documents. Follow the court's rules on filing method and payment of fees.
6. Notify your spouse as required. Service and response procedures are set by the applicable provincial or territorial court rules.
7. Complete any remaining procedural requirements. The steps differ depending on jurisdiction and whether the divorce or related issues are contested.
8. Wait until the separation requirement is satisfied. If the divorce is based on separation, one full year must have elapsed immediately before the court determines the divorce.

What if you and your spouse agree on everything?

The federal Department of Justice encourages separating spouses, where appropriate and safe, to try to resolve major issues such as parenting arrangements, child support, spousal support and property before asking a court to decide them.

When issues remain disputed, the court may have to determine them, which can make the proceeding longer and more expensive. The exact procedural labels and steps for an uncontested or contested divorce depend on provincial or territorial court rules.

Family justice services, including mediation services, may be available through provincial or territorial governments.

When are you legally divorced?

A divorce judgment does not ordinarily end the marriage immediately.

Under section 12 of the Divorce Act, a divorce normally takes effect on the 31st day after the day the judgment granting the divorce is rendered.

The Act allows a court to make the divorce effective earlier in special circumstances if the statutory requirements are met, including the required agreement concerning an appeal. An appeal can also affect when the divorce becomes effective.

Once effective, a divorce granted under the Divorce Act has legal effect throughout Canada and dissolves the marriage.

How do you get a divorce certificate?

After the divorce takes effect, you can request a certificate of divorce from the court that granted the divorce. The Divorce Act provides that the court must issue the certificate on request after the divorce is effective.

The certificate confirms that the marriage was dissolved and states the effective date of the divorce. If you later need a copy, contact the court that processed the divorce.

Do not confuse divorce with other post-separation procedures

A court divorce does not automatically update every government record or resolve every legal consequence of separation.

For example, marital-status reporting to the Canada Revenue Agency is a separate administrative process. If your CRA marital status changes, use the Helpydo guide on reporting a marriage, separation, divorce or common-law change to the CRA.

Likewise, immigration sponsorship has its own rules. If your issue concerns sponsoring a spouse or common-law partner rather than obtaining a divorce, see the Canadian spousal sponsorship procedure.

Common divorce application mistakes to avoid

• Assuming you must wait a full year before filing anything. If relying on separation, the Divorce Act requires the full year immediately before the divorce is determined, while the spouses must already be living separate and apart when the proceeding begins.
• Filing in the wrong province or territory. Confirm the one-year habitual-residence jurisdiction rule first.
• Using generic forms found online. Divorce forms and procedures are jurisdiction-specific.
• Assuming there is one Canadian divorce fee. Court fees are established through provincial or territorial processes and vary.
• Ignoring child-support arrangements. The court cannot simply overlook unreasonable arrangements for children of the marriage.
• Assuming the marriage ends on the day the judge grants the divorce. In most cases, the divorce becomes effective 31 days after the judgment.
• Confusing separation with divorce. Separation does not itself legally dissolve a marriage; only a court divorce does that.

What if neither spouse currently lives in Canada?

The usual Divorce Act process generally requires the Canadian provincial or territorial habitual-residence connection described above. The Department of Justice identifies a separate, limited exception under the Civil Marriage Act for certain non-resident spouses who married in Canada but cannot end their marriage in the country where either spouse lives because that country does not recognize the Canadian marriage.

That is a different legal procedure and should not be confused with an ordinary separation-based divorce under the Divorce Act.