How do I get divorced? Do I need a divorce lawyer? Who gets the house?
It can be hard to find simple answers to basic questions about separation and divorce in Canada. We’ve created this guide to offer legal information about divorce with a practical orientation.
1. The Divorce Process
How do I get divorced? In Canada, divorces are granted by the courts. This does not necessarily require appearing before a judge – where the parties are able to reach a separation agreement, or where no separation agreement is required, divorces can be granted based on an application by agreement without a court appearance.
How long will my divorce take? In order to apply for a divorce, you must have been separated from your spouse for at least one year. Once the parties are in agreement, a divorce application will ordinarily be processed and a divorce granted within 3 to 6 months.
It is possible to expedite the process where necessary but requires a court appearance. However, where there is no agreement, a trial may be required. Depending on the complexity of the issues involved, it can take years for a contested divorce to go to trial and for any appeals to be resolved.
What will a divorce cost? That depends. You can bring your own divorce application for the cost of the filing fee - under $300 in most provinces.
Court appearances or even a full trial may be necessary where there are issues such as spousal support or child access that cannot be resolved by agreement. Court is expensive and slow – and public! A trial will typically run well over $50,000 in legal fees and court costs. Where large estates or difficult parenting issues are involved, legal fees and expert witnesses such as asset valuators or psychologists can be required, adding to the cost.
You probably don’t have to go to trial. If you and your ex agree, you can choose to resolve your disputes privately, before a family law arbitrator who will perform the role of a judge, or with the help of a trained mediator. The cost of a private mediation will ordinarily be tens of thousands of dollars less than the cost of a trial, and can be scheduled as required. We usually recommend mediation to our clients for these reasons.
Separating from your spouse can be extremely stressful. You may need to find a new place to live, to make an initial separation of personal property, and to agree on some initial financial support arrangements. It’s important to try to approach these issues from a practical perspective, however difficult the emotional impact of the separation may be.
What should I do after separating? You should do what’s best for yourself and your children. If you haven’t already done so, take stock of your family’s financial situation and make a list of your assets, resources, and accounts. Gather and preserve financial records. Make a budget and start to consider where you are going to live.
In order to apply for a divorce, you must have been legally separated from your spouse for a minimum period of one year. However, this does not mean that you must wait a year before dealing with issues like interim support or property. The usual approach is to agree on an interim arrangement that will apply while the one year period runs, and while the details of the final divorce arrangement are worked out. Where you cannot reach an interim agreement, you can apply to the court or an arbitrator to obtain an interim order that will apply for a certain period of time or until the divorce is granted.
The practical arrangements you make to get through the weeks and months immediatley following separation can be on a temporary basis. For example, if you agree to vacate the matrimonial home, that does not mean that you give up your property interest in the home. A divorce lawyer can provide you with specific advice applicable to your situation.
What should I NOT do after separating? Don’t make any sudden changes or big decisions. And don’t do what this guy did:
What is the legal definition of “separation”? For the purpose of calculating the one-year separation period required for a divorce, the date of separation will be the date the parties ceased to live together as a couple. In many cases this will be the same date that one of the parties moves out of the matrimonial home, but living at separate addresses is not a requirement. Where the parties continue living at the same address, other factors such as maintaining separate finances and separate daily lives may be relevant. Remember that until you are divorced, you continue to be legally married even though you may be separated and even if you have a separation agreement in place.
3. Matrimonial Property Division
When do we divide our property? Practically speaking you will likely begin dividing some of your assets when you separate. However, the division of property will not be legally enforceable until your divorce is final. Before your divorce is granted, you’ll have to reach an agreement on how to divide all of your property, or resolve the issue through an arbitration or a trial.
Here's a simplified property division table:
How should our property be divided? The legal principles that apply to the division of your property will depend on whether you are married, or in a common-law relationship. Married couples are entitled to an equal division of their combined assets less any exemptions. Assets typically include the matrimonial home and any other real property, any financial assets such as RRSPs or savings, vehicles, personal property including art and jewellery, and other property. Exemptions may apply to property brought into the marriage. Proving exemptions can be complex, and may require tracing funds through accounts or assets, or both.
The division of property in common-law relationships is subject to different legal principles. As well, note that a pre-nuptial agreement, co-habitation agreement, or post-nuptial agreement may determine or affect any exemptions or set out how property is to be divided.
In some cases matrimonial property division is straightforward, while in other cases it can become very complex, particularly where a family-owned business is involved or where there are many potential exemptions to deal with or significant tax consequences. It’s a good idea to start making a list of your assets as early in the process as possible, and to make sure to retain and organize banking records, including credit card statements, documentation for any significant purchases, and any other financial records you may have.
Your divorce lawyer can help you develop a proposal for dividing your property and discuss any exemptions that may apply. Depending on the estate, it may also be necessary to involve a tax lawyer, or financial professionals such as appraisers, business valuators. If you are going to sell real property you will likely need to work with a real estate agent. We work with our clients to build a team of experienced professionals as required.
4. Spousal Support
What is spousal support? Spousal support, or alimony, is money paid by one party to another. It is intended to be support for the other spouse, separate from child support which is intended to be support for the children. You, or your former spouse, may be entitled to spousal support on a temporary or permanent basis. The question of whether a party is entitled to receive spousal support is complex and highly circumstantial, and you should seek legal advice if you think your divorce will involve spousal support, or if you are unsure whether you are entitled to spousal support.
Example spousal support ranges for parties earning $120,000 and $28,000 who share parenting of one child:
How much spousal support should I pay or receive? It depends. This is one of the most complex areas of family law, involving numerous potential formulas or factors.
You may have heard of something called the Spousal Support Advisory Guidelines (or “SSAGs”). The SSAGs were developed in Canada a number of years ago. They are a reference tool for lawyers and parties but are not legislated.
The formulas are complex and lawyers use specialized computer software to calculate the amounts due under the SSAGs. We have developed a simplified spousal support calculator that you can use to quickly estimate the approximate range of support that may be payable in your situation, with helpful graphs and charts to visualize how those payments might affect your overall financial situation.
The spousal support ranges will vary depending on the income of each party, the duration of the relationship, and whether or not there are dependent children (and consequent child support obligations) to consider. Aside from using our spousal support calculator, you should speak with a divorce lawyer to discuss the support that may be payable in your situation.
5. Parenting & Access
How should we decide questions about parenting or access? Where children are involved, the law requires their best interests be put first in decisions that affect them. This means that parenting and access decisions will be driven by the interests of the child, not the preferences or convenience of the parents.
How can I make sure my kids are OK through this process? It is important to understand that conflict between parents inherently affects your children. In order to minimize that, it is important to reduce potential conflict. That is not always easy. There are a number of resources available to help you develop the necessary parenting tools to help your children through your specific situation. For example, the court-mandated Parenting After Separation course can now be taken online in both Alberta and B.C..
6. Child Support
What is child support? Child support is money paid by one parent to the other parent to provide for their children. Child support payments include fixed amounts for basic support as well as amounts to cover certain types of expenses such as educational expenses or dentistry.
Base child support for parties earning $120,000 and $28,000 in Alberta, who share parenting of one child:
How is child support calculated? Child support is calculated based on amounts set out in the Federal Child Support Guidelines. The amount of child support payable is calculated by looking up the payor parent’s income in the child support tables. The amount of child support payable for any given income will vary depending on the province the payor is resident in, and the number of children.
How long is child support payable? Children generally have a right to financial support until they reach the age of majority. If a child is over the age of majority, he or she may still be entitled to receive child support depending on the circumstances (i.e. whether an older child is attending post-secondary education). The age of majority is 18 in Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan. It is 19 in the Northwest Territories, Nova Scotia, Nunavut, Yukon, British Columbia, New Brunswick, and Newfoundland.
How much child support should I pay or receive? We have developed a child support calculator you can use to estimate child support. Our child support calculator also automatically generates some graphs and charts to help you visualize how child support payments could affect your cash flow.
7. Hiring a Lawyer
Do I need a lawyer? If you have an uncontested divorce with no children or property to divide, and no spousal support claim, you do not need a divorce lawyer. Where there are any issues that require a negotiated settlement, it is mandatory to have independent legal advice in order for any agreement to be enforceable.
In many cases you can reach an agreement without a lawyer, perhaps with the assistance of a trained mediator (who may be a lawyer). You have the right to represent yourself. However, given the importance of the underlying issues, most people prefer to have a lawyer represent them in negotiation, mediation, and any arbitration or court proceedings.
What will my divorce cost? Most lawyers bill at an hourly rate. This means that the cost of your divorce will directly correspond to the amount of time the lawyer spends working for you. Some divorces require only a few hours of a lawyer’s time. Where court applications or a trial are necessary, dozens or even hundreds of hours of preparation can be required. Cost and time are the main reasons most people try to avoid the courtroom by resolving any disputes through negotiation or mediation.
How should I choose a lawyer? You need a lawyer who understands your circumstances and can help you move forward. Every divorce is different. Some divorces involve serious parenting issues, substance abuse, or criminal misconduct. Others are more like a business deal, involving significant estates. You should look for a good fit between your situation and your lawyer. In some cases, it may be appropriate to involve more than one lawyer to ensure different aspects of your divorce are handled appropriately and cost-effectively. There is no substitute for sitting down in person with your prospective lawyer and talking through your situation. The lawyer should explain how they would approach your file and you should be comfortable with that approach.
In Canada, lawyers are forbidden from asserting that they are “experts” in a particular area. There are no official specializiations in law, due to the lack of any formal criteria. However, you we do recommend you choose a lawyer with experience in the family law area. The best lawyers are those who help clients resolve their issues and move forward with their lives on a practical basis.
7. Dispute Resolution
We disagree. How can we move forward? The courtroom is not the only option for resolving divorce disputes. For every issue, the first step should always be a reasonable discussion with the other party in an effort to understand where each person is at. A big part of a divorce lawyer’s role is negotiation, which involves collecting and exchanging information, identifying the real issues, exploring possible solutions, and making proposals. Sometimes this is relatively straightforward and an agreement follows shortly after information and initial proposals are exchanged. In other cases, something more is required: mediation, arbitration, or where all else fails, litigation. Take a look at our family law mediation and arbitration guide for a more detailed explanation of these alternative dispute resolution methods.
8. Divorce Support & Resources
Other than contacting a family lawyer, there are a wide range of free resources in both B.C. and Alberta that can help you get started.
If you are looking for support with court forms or need legal information to help you represent yourself in family court, you should visit the Family Law Information Centre at the Calgary Courts Centre.
Legal Aid Alberta offers funding that may enable you to retain a divorce lawyer if you meet their income guidelines, but funding is extremely limited at present. Alternatively, you could seek assistance from Calgary Legal Guidance, or Student Legal Assistance based at the University of Calgary Faculty of Law.
The Legal Services Society also provides Legal Aid on a means-tested basis to assist those who cannot afford a lawyer. Strict income thresholds mean funding may be very limited. The Law Students’ Legal Advice Program also provides free legal advice and representation for low-income individuals.
9. Further Reading on Divorce
Here’s a few articles we’ve published on the topic of divorce, from our blog. We try to keep it practical and non-technical, with a view to addressing real issues faced by our clients.