Does Canadian Divorce Law Include Non-Residents Same Sex Couples?

 

In most situations, Canadian divorce law is easy to understand. The rules for divorce in Canada are set out in the federal Divorce Act. Canada has “no-fault” divorce, and the only ground for divorce under the Divorce Act is marriage breakdown. You can show marriage breakdown if:

• You and your spouse have lived separate and apart for at least a year
• Your spouse has been physically or mentally cruel to you
• Your spouse has committed adultery

There are other situations, however, where it’s more difficult to tell if Canadian family law applies to you. Citizenship and residency issues can make the process of divorce confusing. So can the question of what laws apply to you when you are in a common-law relationship.

Fortunately, it is easy to get a general sense of where you stand. An experienced Toronto divorce lawyer can help you gain a better understanding of the law.

Common-Law Spouses

Canadian divorce law only applies to legally married couples. It does not apply to common law couples living together in a marriage-like relationship.

Common-law couples cannot divorce, but they can separate. The rules regarding child and spousal support and child custody only apply when a married couple divorces. However, when a married couple or common-law couple separates, provincial or territorial family law applies to them.

Property division always falls under provincial or territorial law. The laws regarding property division in divorce cases do not apply to common-law couples. This means that if common-law spouses separate, neither spouse has an automatic right to divide or share in the value of the other spouse’s property.

Whether or not your non-marital relationship entails spousal obligations depends on your province or territory. In Ontario, for family law purposes you are considered common-law spouses if:

• You have lived together for three years, or
• You live together and have a child together

The obligation of a biological father to pay child support does not, however, depend upon the parents ever having been married or in a common-law relationship.

Residents

You do not have to be a Canadian citizen, or to have married in Canada, to get a divorce in Canada. In most cases, though, you must be a resident. To fulfill the residency requirement of the Divorce Act, at least one of you must have lived where you are applying for the divorce for a year. The provinces and territories are responsible for processing divorces.

Non-Residents

An exception to the residency requirement has been created. It helps non-resident same-sex couples that were married in Canada, but can’t divorce because same-sex marriage is not legal where they live.

Non-residents cannot end their marriage under the Divorce Act. Rather, they must obtain their divorce under the Civil Marriage Act. In order to do so, they must apply to a Superior Court in the province or territory where they married. Non-residents can obtain a divorce under the Civil Marriage Act only if neither spouse is lives where a divorce can be obtained.

The full requirements for divorce under the Civil Marriage Act are:

• Breakdown of marriage as established by spouses living separate and apart for at least a year
• Neither spouse resides in Canada
• Each spouse has resided for at least a year prior to application in a state where divorce cannot be granted because the marriage is not recognized

It is also important to realize that a divorce under the Civil Marriage Act only ends the marriage. It does not provide rules for child or spousal support or any of the other common issues surrounding divorce.

Don’t rely on any divorce lawyer for your family needs, our experienced family lawyers in Toronto are always available.