Although we’ve all heard of a quickie divorce, there is really no such thing in Canada. If you want to get legally divorced from your spouse, there are numerous components that dictate the overall speed of the application process.
These include the time needed for you to comply with certain procedures, including statutory wait-times and notice periods, and the time added by administrative delays when filing and receiving materials from government offices. Additional delays – whether short or long – can arise because of the particular facts of your situation, including the legal grounds for your divorce, and whether you and your spouse can reach an agreement on various issues.
The following discussion touches upon some of those many factors that can speed up, or slow down the process.
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What are the Grounds?
The first factor relates to what the grounds for your divorce will be.
In Canada, the basic process of divorcing your spouse is governed by the provisions of the federal Divorce Act. Under that legislation, there must be a breakdown of the marriage, involving one of only two possible grounds. Timing will be impacted by the route you choose to pursue.
The two grounds are:
- “No fault,” which requires that you and your spouse are separated from each other for at least 1 full year.
- Adultery or cruelty. This requires you to prove that, since celebrating your marriage, your spouse has:
- a) committed adultery, or
- b) treated you with “physical or mental cruelty of such a kind as to render intolerable” your continued cohabitation.
In terms of establishing the proper grounds for divorce, the “adultery or cruelty” ground is the more challenging one. For this reason, most divorcing spouses simply rely on a full year’s separation from each other, to trigger their eligibility to divorce. For these couples, a divorce will take at least a year to finalize, plus the added delays described below.
Do You Have Kids?
The next factor that impacts divorce timing relates to whether you and your spouse have children together, and whether you can reach an agreement on your parenting arrangements both during the initial separation, and after you are divorced.
If you cannot do so, or if the court is not satisfied that reasonable arrangements have been made for the support of the children you have together, the court has specific powers under the Divorce Act, including the ability to “stay” (i.e. suspend) the granting of your divorce.
Contested or Uncontested?
Willingness of your spouse to cooperate and move forward with the divorce is a big factor in timing as well. The two scenarios are:
- An uncontested divorce (where both of you agree to the reasons and terms for your divorce); and
- A contested divorce (where you and your spouse do not agree on the reasons or terms for your divorce).
If your divorce must go forward on a contested basis, then one of you must file a divorce application and the other party contests it. This will very likely delay the process.
Getting the Paperwork Together
The speed of your divorce will also be impacted by whether you can obtain the necessary documents quickly, and complete the necessary forms.
For example, to apply for a divorce you need to supply your original Certificate of Marriage, or else a certified copy of your Registration of Marriage. If your Certificate of Marriage is not in English, you will have to provide a translated copy.
You also have to provide a copy of any separation agreement between you and your spouse, as well as any prior Court Orders or written agreements.
Procedural and Administrative Delays
Even at its optimal, the process of getting a divorce in Canada (as elsewhere) can involve both procedural and administrative delays. These systemic delays can be hard to predict, and can add up quickly.
For one thing, there is a built-in delay to allow your spouse to respond to your written divorce application. After being served with a copy of it, he or she is entitled to 30 days within which to file a formal response to it. If he or she does not do so, then you are eligible to have your divorce application “set down” with the court for its consideration, by filing the proper forms as a next step.
Your divorce application may also be delayed because of processing lags. The federal Divorce Registry, located in Ottawa, Ontario, must be advised and approve of your divorce application.
Making it Official
From that point, the next step involves waiting for the Court to formally grant you a Divorce Order, after a judge has reviewed and approved all the material you have filed. Again, this can take some time and may be hampered by administrative delays. And once that Divorce Order is in-hand, you must wait another 30 days before you can obtain a Certificate of Divorce.
At that point, it’s official. Only then are you considered legally divorced under Canadian law.
What’s the Bottom Line?
The exact timing will always hinge on aspects of your unique situation, on the time it takes for you to meet the administrative requirements, and on the Court’s own processes and delays. For this reason, we always recommend against planning any significant events (such as a wedding to a new partner) based on best-guess estimates, which are frequently too optimistic.