The Divorce Act | Definitions in the Divorce Act | Divorce Process
The Divorce Act changed on March 1, 2021. These changes affect divorce orders made before this date.
The Divorce Act
What are the laws about divorce?
In Canada, the federal government makes the law about divorce. This means that divorce law is the same all across Canada.
The Divorce Act sets out the law for divorces in Canada. It also sets out rules for dealing with issues related to divorce (called “corollary relief”), such as:
- decision-making responsibility and parenting of children
- child support
- spousal support
- contact orders (orders granting time with a child to people other than the child’s parents)
- giving notice when moving
Each province also has laws about everything except divorce. For example, Alberta has the Family Law Act. Other provinces have similar legislation.
While the provinces do not make the laws about divorce, they do have Rules of Court setting out the process (including court forms and rules for serving documents) for getting a divorce.
Last updated: March 2021
Who does the Divorce Act apply to?
The Divorce Act applies to people who are married and want to get divorced. It also applies to people who are already divorced but are still dealing with issues related to the divorce, such as support and parenting arrangements for children of the marriage. The Divorce Act does not apply to couples who never married.
Each province also makes family laws about everything except divorce. Provincial laws apply to both married and unmarried couples who are separating. Some things, such as child support and spousal support, are covered in both the Divorce Act and provincial family laws. Only provincial laws deal with dividing property after a separation, such as Alberta’s Family Property Act.
So which law do you use?
- If you have already filed for divorce, use the Divorce Act to deal with parenting, contact and support issues.
- If you have not yet filed for divorce, use the Divorce Act or provincial family laws to deal with issues such as parenting, contact and support. Once you are divorced, you must continue to deal with these issues using only the Divorce Act.
- If you were never married to your partner, use provincial family laws to deal with all family law issues. The Divorce Act does not apply to you.
- Use provincial laws to deal with property division, such as Alberta’s Family Property Act.
Last updated: March 2021
Where can I find the Divorce Act?
You can read the Divorce Act online. You can also ask for help finding it at a public library or courthouse library.
Last updated: March 2021
Definitions in the Divorce Act
What is a “divorce”?
A divorce is a court order that ends a marriage. If you are legally married, you cannot marry someone else until you get a divorce, even if you are separated from your spouse.
The court issues a divorce judgment (also called a divorce order). You must then apply at the courthouse (or online sometimes) for a Certificate of Divorce. It is legally effective across Canada. Keep this document in a safe place. If you want to get married again, you will need to show your Certificate of Divorce when you apply for a new marriage license.
Last updated: March 2021
What is a “spouse”?
A spouse refers to either of the two people who are married to each other. Former spouses are people who used to be married to each other and are now divorced.
Last updated: March 2021
What is a “child” under the Divorce Act?
The Divorce Act talks about a “child of the marriage.” A “child of the marriage” means a child of two spouses or former spouses who:
- is under the age of majority and has not left their parent’s charge, or
- is the age of majority or over and cannot support themselves because of an illness, a disability or another cause (such as pursuing reasonable education).
A “child of the marriage” also includes a child that a spouse or former spouses stands in the place of a parent for. This can include a stepparent or a person who has acted as a parent in a child’s life.
Last updated: March 2021
What does “age of majority” mean?
The age of majority means the age that a child is considered a legal adult in the province where they usually live.
The age of majority is 18 in:
- Alberta
- Manitoba
- Ontario
- Prince Edward Island
- Quebec
- Saskatchewan
The age of majority is 19 in:
- British Columbia
- New Brunswick
- Newfoundland
- Northwest Territories
- Nova Scotia
- Nunavut
- Yukon
If the child lives outside of Canada, then the age of majority under the Divorce Act is eighteen years.
Last updated: March 2021
What does “decision-making responsibility” mean?
Decision-making responsibility means a parent’s responsibility for making significant decisions about a child’s well-being. This includes the child’s:
- health
- education
- culture, language, religion and spirituality, and
- significant extra-curricular activities.
One or both spouses can have decision-making responsibility. Sometimes the spouses will have decision-making responsibilities about the same things, and sometimes they will have decision-making responsibility about different things.
The spouses can agree on decision-making responsibilities and put what they agree on in a parenting plan or consent order. If the spouses cannot agree, the court will decide in a parenting order. All decisions must be made in the best interests of the child, not what the spouses want.
Last updated: March 2021
What is a consent order?
The Divorce Act talks about “corollary relief proceedings”. These are defined as proceedings started by either spouse for a child support order, a spousal support order or a custody order. There are special rules set out in the Act for these proceedings.
Last updated: March 2021
What does “parenting time” mean?
Parenting time is the time a child spends in the care of a parent. A parent makes day-to-day decisions about the child during their parenting time. This includes time a child is at school or other activities within the parent’s parenting time. Parenting time is set out in a parenting plan or parenting order.
Parenting time is different from decision-making responsibility. A parent may have both decision-making responsibility and parenting time. Or a parent may have parenting time but not decision-making responsibility. The parents can agree, or the court can decide. All decisions must be made in the best interests of the child, not what the parents want.
Last updated: March 2021
What is a “parenting order”?
A parenting order is a court order setting out parenting time and decision-making responsibilities of the parents. A parenting order can include a parenting plan – an agreement among the parents setting out parenting time, decision-making responsibility and contact. A parenting plan is legally enforceable if it is part of a court order.
Last updated: March 2021
What is a “parenting plan”?
A parenting plan is a written agreement about parenting arrangements.
Parenting arrangements include:
- where the children will live
- how the parents will look after the children
- how the parents will make decisions about the children
- how the parents should communicate with each other
If the parents come up with a parenting plan and present it to the court, the court must accept it unless it thinks the plan is not in the best interests of the child. A parenting plan is legally enforceable if it is part of a court order.
Parents can agree to change a parenting plan. If they also have a court order, they should go back to court to get the order changed as well (maybe through a consent order).
Last updated: March 2021
What does “contact” mean?
Contact is time that someone who is not a parent, such as a grandparent, spends with a child. A person with contact usually does not make decisions about the child’s life. Contact may exist in the form of visits or any other forms of communication (such as phone calls, Facetime, video chats, texting, etc.).
Parents can agree to let someone have contact with the child. If the parents do not agree to allow someone to have contact with the child, that person can apply to the court for an order granting them contact.
Last updated: March 2021
What does “best interest of the child” mean?
The Divorce Act says the court must only look at what is in the best interests of the child when making a parenting order or a contact order. Decisions should not be based on what the parents want.
The judge must look at what is best for the child’s physical, emotional and psychological safety, security and well-being. The judge considers factors such as:
- the child’s needs, given their age and stage in life
- who has cared for the child as they have grown
- how strong the relationship is between the child and the spouse and any other person in the child’s life (such as siblings, aunts or uncles, grandparents)
- the child’s cultural, linguistic, religious and spiritual upbringing and heritage
- the child’s views and preferences, where it is appropriate
- the plans proposed by the parents for caring for and raising the child
- if there has been any family violence, and the impact that the family violence has had on the child (If there is family violence, the court looks at more factors related specifically to family violence as well. See the next question for more information.)
- the abilities and willingness of each spouse to provide for the child’s needs and to communicate and cooperate with the other parent
- how willing each spouse is to develop and maintain the child’s relationship with the other spouse
- any civil or criminal proceedings that impact the safety or well-being of the child
The court does not consider a spouse’s past conduct unless that conduct is relevant to the person’s exercise of responsibilities.
Last updated: March 2021
What is “family violence” under the Divorce Act?
The Divorce Act defines family violence as any conduct by a family member towards another family member that:
- is violent or threatening, OR
- constitutes a pattern of coercive and controlling behaviour, OR
- causes the other family member to fear for their own safety or that of another person.
Family violence includes:
- physical abuse (including forced confinement but excluding reasonable force to protect themselves or another person)
- sexual abuse
- threats to kill or cause bodily harm to any person
- failure to provide the necessaries of life
- psychological abuse
- financial abuse
- killing or harming an animal, or threats to do so
- damaging property, or threats to do so
When it comes to children, family violence is any conduct the child is exposed to, directly or indirectly. Therefore, the child does not have to be experiencing the violence. It is also family violence in relation to the child if they are indirectly exposed to it (such as seeing someone experience violence or see the aftermath of violence).
The conduct does not have to be a criminal offence to be family violence.
Last updated: March 2021
Who is a “family member” under the Divorce Act?
A family member includes:
- a member of the household of a child
For example, if the child lives with one parent, their siblings, the parent’s new partner or spouse and that person’s kids, then all these people are family members.
- a member of the household of a spouse or former spouse
For example, if the child lives with one parent most of the time but spends time with the other parent and that parent’s new partner and kids, then all these people are family members.
- dating partner of a spouse or former spouse who participates in the activities of the household
For example, if one parent’s new partner or spouse does not live with the parent and child but participates in family time together, that person is also a family member.
Last updated: March 2021
Divorce Process
What are the reasons (grounds) to apply for divorce?
The Divorce Act says that you can ask for a divorce if there has been a “breakdown of marriage.”
A breakdown in marriage can occur in one of three ways:
- You and your spouse have been separated for at least one year with no chance of getting back together. If you get back together for 90 days or less and then separate again, this short reconciliation does not interrupt or stop the one-year period. If you get back together for more than 90 days and then separate again, you will have to wait another year before filing for divorce.
- Your spouse committed adultery (has sexual relations with someone else while you are still married).
- Your partner treated you cruelly.
These are called the “grounds for divorce”.
Last updated: March 2021
What does it mean to “live separate and apart”?
Living separate and apart means you no longer live like a couple. You can live in the same house and still be living separate and apart.
Some factors that indicate spouses are living separate and apart are:
- you hardly communicate with your spouse
- you have separate bedrooms
- you do not have sex together anymore
- you do not help each other with household tasks
- you do not do activities together
Usually, you must live separate and apart for one year before a judge will grant a divorce order.
Last updated: March 2021
What is adultery? How do you prove adultery?
Adultery is when a married person has sex with someone who is not their spouse.
The person who committed adultery can swear an affidavit admitting this. An affidavit is a written statement of facts that is sworn or affirmed before a Commissioner for Oaths (or Notary Public) and filed with the court as evidence in court.
If the person who committed adultery will not admit to it, you must prove adultery with other evidence.
Last updated: March 2021
How do we legally separate?
There is no such thing as a “legal separation” in Canada. There is no document you file to be “legally separated”. You are either married or divorced. However, the Divorce Act does talk about living ‘separate and apart’ for one year before the court will grant a divorce.
You and your spouse may sign a Separation Agreement. This agreement can deal with parenting arrangements, decision-making responsibility for children, child and spousal support, and dividing family property. The court can include the terms of the separation agreement into a final divorce order.
For tax purposes, you are usually considered separated when you start living separate and apart from your spouse for at least 90 days (assuming you do not get back together).
Last updated: March 2021
When can I file for divorce?
Usually, the court will not grant a divorce order until a couple has been separated for one year (unless you are applying for divorce under one of the other grounds listed above).
However, if you have children and need child or spousal support, you usually cannot wait one year to deal with these issues.
Couples have two options:
- Start divorce proceedings right away under the Divorce Act. The court will not grant a divorce until the year is up, but it will grant interim (temporary) orders to deal with parenting and support issues. When the year is up, the court grants a divorce order, which includes ‘final’ decisions on parenting and support issues.
- Deal with parenting and support issues under provincial family laws. When the year is up and these issues have been resolved, the couple can start divorce proceedings under the Divorce Act. The court will look at the other orders and incorporate them into a final divorce order.
Final orders are never really final! Orders that deal with parenting and support will likely need to be updated as circumstances change, such as children growing up.
Last updated: March 2021
Where do I file for divorce?
You should start divorce proceedings in the province where you have lived for at least one year immediately before starting the proceedings.
If you live in one province and your spouse lives in another province, you might each file proceedings in different provinces. If this happens, the following rules apply:
- If the divorce filed first is not discontinued (cancelled), then the second application is discontinued (cancelled).
- If the divorce filed first is discontinued, then the second continues on.
- If divorces are filed on the same day and neither is discontinued after 40 days, then either spouse can apply to the Federal Court for directions on which file should continue.
The Central Registry of Divorce Proceedings is a nation-wide registry for divorces filed after July 2, 1968. The Registry lets the court know if another divorce application has been filed for the same spouses.
Last updated: March 2021
How do I file for divorce?
While the Divorce Act applies all across Canada, each province sets its own process for getting a divorce. Each province’s Rules of Court sets out the process for that province.
The court documents and names of the parties might be slightly different in each province. For example, in Alberta, you must file a Statement of Claim for Divorce form to start divorce proceedings. You are the plaintiff, and your spouse is the defendant. In Ontario, the person starting the proceedings is the applicant and the other person is the respondent.
Once you have filed the necessary documents with the court, you must give a copy of them to your spouse. This is called ‘service’. Each province has its own rules about how and when you must serve the other person. For more information, check the Rules of Court of the province where you are filing.
You do not need a lawyer to get a divorce. However, a lawyer can be helpful if you and your spouse are likely to disagree on things, such as how the children will split time with the parents, child or spousal support, or dividing up property. If you decide not to retain a lawyer, there are many resources that can help you. Courts and other organizations across the country provide resources for people going through a divorce.
Justice Canada’s website links to government family law supports in each province and territory.
LawCentral Alberta lists resources in Alberta.
Last updated: March 2021
What if there are other issues to deal with besides divorce, such as children and financial support?
The Divorce Act talks about “corollary relief proceedings.” These include proceedings started by either spouse for a parenting order, child support order or spousal support order. There are special rules set out in the Act for these proceedings.
The court will not grant a divorce order until you and your spouse have made plans for parenting and financial support.
Last updated: March 2021
How can I find a lawyer to help me?
There are several ways to find a lawyer:
- Talk to family and friends to see if they know a divorce lawyer.
- Call a lawyer referral service. Every province except for New Brunswick and Saskatchewan has this service.
- If you cannot afford a lawyer, legal clinics across the country provide free legal services. Usually, they have income limits you must meet. Google “legal clinic” and your area for one close to you. If you are in Alberta, visit LawCentral Alberta for help finding a lawyer or legal clinics.
- If you can afford to pay a lawyer for some work, you can ask around for a lawyer to provide limited services or legal coaching. Some provinces have programs that list lawyers willing to provide these services, such as Alberta Legal Coaches & Limited Services or Ontario’s Family Law Limited Scope Services Project.
Check with the law society, legal aid or community legal clinics in your province for more information.
Last updated: March 2021
How much do divorces cost?
There is no simple answer to this question!
If you handle your divorce yourself, you may be able to keep costs down. You must pay a filing fee at the courthouse to begin your divorce proceedings. This can range from about $250 to $350 depending on the province. You will have to arrange to have your Statement of Claim for Divorce served on your spouse. There will be a fee if you hire someone to do it rather than doing it yourself. (Some provinces require you to have someone else serve your spouse with legal documents starting a divorce.)
If you retain a lawyer, the lawyer may charge you a flat fee or may charge you an hourly rate. Make sure you understand how your lawyer will be charging you.
Costs can go up if the divorce stretches out over time because you and your spouse cannot agree on things, or if you must go to court several times. Even if you do not have a lawyer, you may incur costs if you must take time off work or travel to another city.
Last updated: March 2021
Do I have to go to court to get a divorce?
You usually do not have to go to court if your divorce is uncontested. You can ask the court for a “desk divorce”. A desk divorce means the court processes your divorce by paperwork alone – you do not have to appear in court.
You can only apply for a desk divorce if you and your spouse agree on everything, including getting a divorce, child and spousal support, parenting arrangements, and dividing your property and debt. Depending on the process in the province you are in, one person files documents to start the process and the other does not object. Sometimes you can file a joint application for divorce. Once you have filed all your documents with the court, a judge will look over everything. If nothing is missing and the documents have been correctly filled out, a judge can grant you a divorce without you having to go to court. If the judge has any questions or concerns, they will not grant a divorce order until you have resolved the problems.
If you and your spouse do not agree on everything, such as child support or spousal support, then the process can be much longer and complicated. If you and your spouse cannot come to agreement(s), you will have to ask the court to make orders. Eventually, you may have to go to a trial. At a trial, each spouse goes to court and gives evidence to the judge. The judge makes a final order.
Last updated: March 2021
When is my divorce final?
Generally, a divorce is final 31 days after the day the court granted the divorce order. The reason for this delay is to give either spouse time to appeal the divorce order if they wish. The judge can shorten this time if the judge thinks there is a good reason to do so and the divorcing spouses agree not to file an appeal.
You must then apply at the courthouse for a Certificate of Divorce. It is legally effective across Canada. Keep this document in a safe place. If you want to get married again, you will need to show your Certificate of Divorce when you apply for a new marriage license.
Last updated: March 2021
More Resources
- Divorce Act (Government of Canada)
- Links to Family Justice Supports in each Province and Territory (Justice Canada)
- Divorce & Separation (Justice Canada)
- Families Change: Guide to Separation & Divorce – website with info helping kids, teens and parents deal with a family break up
- Visit your local public library for self-help books on divorce and separation.
Alberta Resources
- Separation and Divorce (CPLEA publication – available in English and French)
- Resolving Family Law Disputes (CPLEA publication – available in English and French)
- Divorce Forms and Guides (Alberta Courts)
- Divorce & Separation resources in Alberta (LawCentral Alberta)
- Parenting After Separation (Alberta Government – free online course)