International Student Divorce: Filing From Canada

If you are an international student seeking to file for divorce in Canada, there are a few things you should know. Firstly, Canada has a no-fault divorce policy, meaning the only ground for divorce is marriage breakdown, which can be demonstrated in three ways. Secondly, only Canadian residents can divorce in Canada under the Divorce Act, so if neither spouse lives in Canada, they cannot get a divorce under this Act. However, in certain circumstances, a couple may be able to end their marriage under the Civil Marriage Act. The process of filing for divorce in Canada involves filling out the appropriate forms for your province or territory and filing them in court, or having a lawyer do so on your behalf. It is recommended to seek legal advice to understand your rights and responsibilities and to ensure you are following the correct procedures.

Divorce in Canada

Residency requirements for divorce in Canada

Residency requirements are crucial when filing for divorce in Canada. As a general rule, only Canadian residents can divorce in Canada. If neither spouse lives in Canada, they cannot get a divorce under the Canadian Divorce Act. However, they may be able to end their marriage under the Civil Marriage Act if their country of residence does not recognize their Canadian marriage. In this case, they would need to apply to a Superior Court in the province or territory where they were married.

Each province or territory in Canada has its own regulations and requirements for divorce, including residency requirements. The Divorce Act, a federal law, sets out the legal requirements and procedures for obtaining a divorce. It states that either spouse must have been a resident of the province or territory where the divorce is being sought for at least one year prior to initiating the process. This is known as the "habitual residence" requirement. The specific rules and forms for divorce depend on the province or territory in which it is being filed and can be found on the website or office of the provincial or territorial Ministry of Justice or Attorney General.

The only ground for divorce under the Divorce Act is marriage breakdown, which can be demonstrated by any one of the following criteria:

• Living apart for one year or more (separation)
• Physical or mental cruelty by one spouse toward the other
• Adultery

It is important to note that Canada operates on a no-fault divorce system, meaning that individuals do not need to prove any specific wrongdoing or fault on the part of either spouse to obtain a divorce. Fault-based divorce still exists in some provinces, but it is rarely used and may require proving specific reasons such as adultery, cruelty, or desertion.

Prior to applying for divorce, it is recommended that individuals seek legal advice to understand their rights and responsibilities and to gather the necessary documentation. It is also advisable for spouses to agree on major issues such as child support, custody, and property issues before initiating the divorce process.

Grounds for divorce

As a general rule, only Canadian residents can file for divorce in Canada. If neither spouse lives in Canada, it is not possible to get a divorce under the Canadian Divorce Act. However, international students who are residents of Canada can file for divorce under this Act if they meet the grounds for divorce.

Canada has a "'no-fault' divorce system, meaning that neither spouse needs to prove that the other is at fault for the breakdown of the marriage. The only ground for divorce under the Divorce Act is marriage breakdown, which can be demonstrated by any one of the following criteria:

• Living apart for one year or more: The couple must have lived separate and apart for at least one year before applying for divorce. This is the most common ground for divorce in Canada. It is important to note that the couple can live together for up to 90 days during this period to try to reconcile, and if they get back together for less than 90 days, they do not need to restart the one-year separation period. Additionally, if the couple continues to live in the same house, they must prove that they are no longer living as a couple.
• Cruelty: The spouse filing for divorce must prove that the other spouse has been physically or mentally cruel, and that living with them has become intolerable. This ground can be difficult to prove and often requires a high standard of proof, such as involving hospitals or the police.
• Adultery: The spouse filing for divorce must provide valid proof of adultery. This ground can also be challenging to prove, and it cannot be used as a basis for joint divorce—it must be filed by the spouse who is solely seeking the divorce.

It is recommended to file for divorce based on the grounds of separation rather than cruelty or adultery, as the latter two are often costly and hard to prove. Additionally, before filing for divorce, it is advisable to seek legal advice from a lawyer who can explain the individual's rights and responsibilities and guide them through the specific processes in their province or territory.

Divorce application process

International students can file for divorce in Canada, but only if they or their spouse are Canadian residents. If neither party lives in Canada, a divorce cannot be obtained under the Divorce Act. However, in limited circumstances, a marriage may be ended under the Civil Marriage Act if specific criteria are met.

The divorce application process in Canada involves several steps and requirements, which are outlined below:

Grounds for Divorce:

Canada has a no-fault divorce policy, meaning the only ground for divorce under the Divorce Act is marriage breakdown. To prove that your marriage has broken down, at least one of the following criteria must be met:

• You and your spouse have lived apart for one year or more (either before or after filing for divorce). During this period, you can attempt reconciliation by living together for up to 90 days without resetting the one-year separation period.
• Your spouse has been physically or mentally cruel to you, making it intolerable to continue living together.
• Your spouse has committed adultery.

Residency Requirements:

To file for divorce in Canada, either you or your spouse must have resided in the Canadian province or territory where you plan to apply for divorce for at least a full year immediately before submitting your application.

Court and Forms:

You must submit your divorce application to a court in the province or territory where you or your spouse resides. Divorce application forms and procedures vary across Canada, so it is essential to refer to the specific requirements of your province or territory. You can typically obtain the necessary forms and information from the website or office of your provincial or territorial Ministry of Justice or Attorney General.

Marriage Certificate:

Along with your application, you must provide your marriage certificate. If you were married in Ontario, you can obtain a copy from ServiceOntario for a fee. If you were married outside of Canada, you must have your marriage certificate translated by a certified translator if it is not in English. Additionally, you must provide proof of any previous divorce or the death of your spouse if applicable.

Application Fee:

There may be an application fee associated with filing for divorce, although this may vary depending on the province or territory.

Child Support and Parenting Arrangements:

Before applying for a divorce, it is recommended that you and your spouse agree on significant issues such as child support, custody, and parenting arrangements. The court will only grant a divorce if it is satisfied that reasonable child support arrangements have been made for any children involved. Family justice services, such as mediation, may be available in your province or territory to assist you in resolving these matters.

Clearance Certificate:

Once your application is submitted, the court will electronically notify the Central Registry of Divorce Proceedings to obtain a Clearance Certificate. This certificate confirms that no other divorce cases have been initiated by either spouse in Canada. The court cannot finalise your divorce until this certificate is received.

Divorce Order and Certificate:

After the court grants the divorce, the divorce order will specify that the divorce becomes effective 31 days after the order is made. You or your former spouse may then request the certificate of divorce from the court, which serves as proof of the date of your divorce.

Child support and parenting arrangements

Now, regarding child support and parenting arrangements, the Divorce Act has specific rules. These rules focus on parental responsibilities and the tasks required for the care of the children. Previously, the Act used the terms "custody" and "access," but as of March 1, 2021, these terms were replaced to emphasize shared parental responsibilities. If a divorce case includes child custody issues, the Act allows these matters to be determined within the divorce proceedings.

It is important to note that while the Divorce Act sets the framework, each province and territory in Canada may have its own laws and terminology regarding parenting arrangements. For example, in British Columbia and Alberta, these matters may be referred to as "parenting" or "parentage," while in Saskatchewan, they are termed "guardianship." Additionally, some provinces, like Alberta and Manitoba, follow general common law rules for child custody jurisdiction, while others, like Ontario and Newfoundland and Labrador, have specific statutes in place.

When it comes to child support, if the divorce occurs under Canada's Divorce Act, one can request a support order from a court in the province or territory where the other parent lives. This typically involves seeking legal advice or contacting the ministry responsible for family law in that province or territory. On the other hand, if the divorce did not take place in Canada, obtaining a support order from a Canadian court would depend on the laws of the specific province or territory where the order is sought.

To summarize, child support and parenting arrangements in the context of divorce for international students in Canada are governed by the Divorce Act and the laws of the specific province or territory. The Act emphasizes shared parental responsibilities and tasks, and parents can work with mediators and lawyers to create a "parenting plan" that outlines schedules, decision-making authority, and other aspects of the child's care. While the Divorce Act provides a framework, the specific laws and processes may vary across different parts of Canada.

Spousal support and property division

As a general rule, only Canadian residents can divorce in Canada. If neither spouse lives in Canada, they cannot get a divorce under the Divorce Act. However, they may be able to end their marriage under the Civil Marriage Act if their country of residence does not recognize their Canadian marriage.

Now, let's focus on spousal support and property division for international students seeking divorce in Canada. When it comes to spousal support, it's important to understand that Canada has a "no-fault" divorce system. This means that the conduct within the marriage will not be considered by the court when making decisions about spousal support or property division. Instead, the court will focus on ensuring a fair and equitable outcome for both parties.

In terms of property division, the specific laws can vary depending on the province or territory. For example, in Ontario, property acquired during the marriage must be split equally when the marriage ends, regardless of the reason for the divorce. This includes the family home and any increase in value of property owned before the marriage. To achieve this equal division, money owed to either spouse is called an equalization payment or an equalization of net family property. It's important to note that common-law couples in Ontario are not legally required to split property acquired during their relationship.

If you are an international student in Canada and considering divorce, it is highly recommended that you seek legal advice to understand your specific rights and obligations. A lawyer can guide you through the process, explain the relevant laws in your province or territory, and help you navigate any complexities related to your unique circumstances.

Frequently asked questions