How to File for Divorce in Canada: A Step-by-Step Guide

What is family law in Canada and how does it work?

Family law in Canada is the set of federal and provincial rules that govern relationships between spouses, common-law partners, parents, and children, especially when a relationship breaks down. It covers separation, divorce, parenting, child support, spousal support, and property division, and it is enforced through courts, agreements, and government support enforcement offices.

At a high level, Canada splits responsibility for family law between:

• Federal law - mainly the Divorce Act and the Federal Child Support Guidelines, which apply to married spouses who are divorcing across all provinces and territories.
• Provincial and territorial law - for example, Ontario's Family Law Act or British Columbia's Family Law Act, which govern property division, spousal support for non-married partners, parenting for non-married parents, and child protection.

Key areas of Canadian family law

• Relationship status
  • Marriage and divorce are federal, under the Divorce Act and the Marriage (Prohibited Degrees) Act.
  • Common-law status and rights are defined by each province or territory and by federal benefit programs (CPP, EI, tax rules).
• Parenting and children
  • Parenting time and decision-making responsibility (formerly custody and access).
  • Contact for non-parents (for example, grandparents), in some cases.
  • Child protection and apprehension by child welfare agencies under provincial child and family services statutes.
• Financial issues
  • Child support under the Divorce Act or provincial family law statutes and the Federal Child Support Guidelines.
  • Spousal support under the Divorce Act or provincial legislation, guided by the Spousal Support Advisory Guidelines (SSAG).
  • Division of property and debts upon separation, governed by provincial law.
• Safety and protection
  • Emergency protection orders, restraining orders, and exclusive possession of the home under provincial statutes.
  • Criminal Code protection where family violence involves criminal offences.

Where cases are heard

• Superior/Queen's Bench/Supreme Courts (name varies by province) usually hear divorces and higher value or complex family matters.
• Provincial family courts often deal with child protection, child support, and some parenting disputes.
• Many provinces have unified family courts that handle everything family-related in one place.

How does separation and divorce work in Canada?

You can separate in Canada simply by living apart or by clearly ending your relationship, without filing anything in court. To legally end a marriage and remarry, you must apply to a court for a divorce, usually based on having lived separate and apart for at least 1 year under the federal Divorce Act.

Separation: the basic rules

• No formal document is required to be "separated"; it is a factual state where at least one partner intends to end the relationship and lives as if the relationship is over.
• You can be "separated under the same roof" if:
  • You sleep in separate rooms, and
  • You no longer present yourselves as a couple and largely live separate lives.
• Many couples sign a separation agreement that deals with:
  • Parenting and child support
  • Spousal support
  • Property and debt division
  • Possession of the home and vehicles

Grounds for divorce

Under the Divorce Act, you can get a divorce if there has been a "breakdown of the marriage", which usually means one of:

• Separation for at least 1 year (most common, no one is "at fault").
• Adultery by the other spouse (must prove it and cannot rely on your own adultery).
• Cruelty that makes it intolerable to continue living together.

Even if you claim adultery or cruelty, many lawyers will advise using the 1-year separation ground because it is simpler and avoids proving personal details in court.

Basic steps to get a divorce in Canada

1. Separate and decide on temporary arrangements for children, finances, and housing.
2. Negotiate a separation agreement through lawyers, mediation, or collaborative law if possible.
3. File for divorce in the appropriate court in your province or territory:
   • Uncontested (joint or sole application) if you agree on everything.
   • Contested if there are disputes about parenting, support, or property.
4. Exchange financial disclosure (tax returns, pay stubs, bank and investment statements, property and debt documents).
5. Settle or go to court:
   • Consent orders if you reach agreement.
   • Case conferences, motions, and possibly a trial if you do not.
6. Get a divorce order and then a divorce certificate (you can usually remarry 31 days after the order is granted).

Typical timelines

• Simple uncontested divorce: roughly 3 to 6 months after filing, depending on the court's backlog.
• Contested divorce with court conferences: often 1 to 2 years.
• Fully contested case going to trial: 2 to 3+ years in some jurisdictions.

How are parenting time and decision-making responsibility decided?

Parenting time and decision-making responsibility in Canada are decided based solely on the "best interests of the child", not on parental rights or who is listed as the primary caregiver. Courts look at safety, stability, each parent's involvement, and the parent's ability to cooperate, and they can order many different parenting schedules.

Key concepts under the Divorce Act and provincial laws

• Parenting time: When a child is in the care of a parent, regardless of labels like "primary" or "shared" parenting.
• Decision-making responsibility: Who makes major decisions about a child's health, education, religion, and culture.
• Contact orders: Time between a child and someone who is not a spouse or parent (for example, a grandparent) in some circumstances.

The "best interests of the child" test

The best interests test is written into the Divorce Act and provincial family law statutes. Courts and mediators typically consider:

• The child's needs, including age, stage of development, and special needs.
• The child's relationship with each parent and with siblings and extended family.
• History of care and who has been the primary caregiver.
• Each parent's willingness to support the child's relationship with the other parent.
• History of family violence, coercive control, or substance misuse, and its impact on the child.
• Child's views and preferences, especially for older children, usually gathered through professionals, not direct questioning in court.

Common parenting arrangements

• Primary residence with one parent and parenting time with the other (for example, every second weekend plus a midweek visit).
• Shared parenting time (roughly 40 to 60 percent with each parent) using:
  • 2-2-3 or 2-2-5-5 schedules
  • Week-on/week-off schedules
  • Extended weekends plus one weekday overnight
• Supervised parenting time where safety is a concern, sometimes through supervised access centres.
• Parallel parenting with limited direct interaction between high-conflict parents.

How to get a parenting order or agreement

1. Try negotiation or mediation to create a parenting plan that sets out schedules, holidays, travel, communication, and dispute resolution methods.
2. File a court application if you cannot agree, asking for parenting time and decision-making responsibility orders.
3. Provide evidence about your involvement with the child, including school, medical, and activities, and any concerns about the other parent's conduct.
4. Participate in assessments if ordered, such as a custody and access assessment by a psychologist or social worker.
5. Follow interim orders until the court makes a final decision or you settle.

How is child support calculated in Canada?

Child support in Canada is usually calculated using mandatory tables under the Federal Child Support Guidelines, based on the paying parent's income and the number of children. Courts almost always follow these tables for basic "table" support and may add "special or extraordinary" expenses like daycare or medical costs on top.

Basic (table) child support

• Applies to both married and unmarried parents under the Divorce Act or provincial legislation.
• Based mainly on:
  • The paying parent's gross annual income (Line 15000 of the T1 General tax return, with adjustments in some cases).
  • The number of children.
  • The province or territory where the paying parent lives (because tax structures differ).
• Tables are publicly available and used by judges, lawyers, and online calculators.

Special or extraordinary expenses (section 7 expenses)

On top of the table amount, parents may share certain extra expenses in proportion to their incomes, including:

• Childcare needed for work, school, or disability.
• Uninsured health expenses over a small annual threshold.
• Extracurricular activities that are unusually costly and in the child's best interests.
• Post-secondary tuition and related costs.

Shared parenting situations

If each parent has the child at least 40 percent of the time, courts may adjust support under a "set-off" approach:

• Calculate what each parent would owe the other under the tables.
• Subtract the smaller amount from the larger amount.
• The higher-income parent usually pays the difference, with possible adjustments for actual costs.

Enforcement and non-payment

• Every province and territory has a Maintenance Enforcement Program or Family Responsibility Office that can:
  • Garnish wages and bank accounts.
  • Seize tax refunds.
  • Register liens against property.
  • In serious cases, suspend driver's licences or federal licences and passports.
• Support is usually payable until at least age 18, and often longer if the child is in school or has a disability.

How is spousal support determined?

Spousal support in Canada depends on need, entitlement, and the ability to pay, considering the length of the relationship, roles during the relationship, and economic disadvantage from the breakdown. Courts use the Spousal Support Advisory Guidelines to estimate how much and how long support should be paid, but the Guidelines are advisory, not legislation.

Who can claim spousal support?

• Married spouses under the Divorce Act or provincial statutes.
• Common-law partners in most provinces if they:
  • Lived together in a conjugal relationship for a minimum period (often 2 or 3 years), or
  • Lived together for a shorter period but had a child together.

Entitlement to spousal support

The court first decides whether support is owed at all, based on three main grounds:

• Compensatory: To compensate a spouse who gave up career or education opportunities to care for children or support the other's career.
• Non-compensatory (needs based): To assist a spouse who cannot meet reasonable expenses after separation but the other spouse can pay.
• Contractual: Where a marriage contract, cohabitation agreement, or separation agreement provides for support.

Determining amount and duration

• Courts look at:
  • Length of the relationship.
  • Age and health of each spouse.
  • Roles during the relationship and resulting economic advantages or disadvantages.
  • Childcare responsibilities after separation.
• The Spousal Support Advisory Guidelines provide ranges:
  • Amount: A percentage of the difference between spouses' incomes.
  • Duration: Often related to years of cohabitation or marriage, sometimes indefinite in long relationships.
• Support can be:
  • Periodic (monthly payments), or
  • Lump sum (one-time payment), in some cases.

How is property divided after separation in Canada?

Property division in Canada depends on whether you are legally married and which province or territory you live in, but generally married spouses share the increase in value of property acquired during the marriage. Common-law partners often do not have the same automatic property rights and may have to claim based on contributions or unjust enrichment.

Married spouses: equalization or division of family property

Most provinces follow a variation on "equalization" or equal division of family property for married spouses:

• Family property usually includes:
  • Matrimonial home(s).
  • Bank accounts and investments.
  • Pensions and RRSPs.
  • Business interests acquired during the marriage.
• Debts are also considered and may be shared.
• Certain assets may be excluded or treated differently, such as:
  • Inheritances and gifts received from third parties during the marriage, if kept separate.
  • Personal injury awards.

Common-law partners: provincial differences

Common-law property rights differ a lot by province:

• In provinces like Ontario, common-law partners generally do not share family property by default and must rely on claims like unjust enrichment or constructive trust.
• In provinces like British Columbia, common-law spouses (called "spouses" under the BC Family Law Act after 2 years of cohabitation or having a child) often have similar property rights to married spouses.
• Other provinces lie somewhere in between or have specific rules for the family home and household goods.

Comparison table: married vs common-law (typical pattern, varies by province)

What rights do common-law partners have compared to married spouses?

Common-law partners in Canada may have similar rights to married spouses for support and some benefits, but property rights are more limited and vary by province. You often need a written agreement or a court claim based on contributions to protect your share of property as a common-law partner.

Typical common-law rights

• Spousal support if:
  • You lived together in a conjugal relationship for the required period (often 2 or 3 years), or
  • You lived together and had a child together.
• Child support and parenting rights are the same as for married parents.
• Estate rights to inherit or claim dependent's relief on death of a partner, depending on provincial estate and family law.

Key vulnerabilities for common-law partners

• No automatic right to share the increase in value of assets in many provinces.
• Ownership of the home often stays with whoever is on title, unless you prove a legal or equitable interest.
• Difficulty proving contributions without records: for example, paying expenses, working in a family business, or unpaid caregiving that allowed the other partner to build wealth.

Practical protection strategies

• Sign a cohabitation agreement that clearly sets out:
  • How property and debts will be handled if you separate.
  • Whether either partner will pay spousal support.
  • What happens to the home, vehicles, and major assets.
• Keep clear records of contributions, including renovations, mortgage payments, or business work.
• Update wills and beneficiary designations to reflect your intentions.

What legal options exist in situations of family violence?

In situations of family violence in Canada, you can seek immediate safety through police, emergency protection orders, and shelters, and you can ask a family court for orders that restrict contact, grant exclusive possession of the home, and adjust parenting arrangements. Courts must consider family violence when deciding parenting under the Divorce Act and provincial laws.

What counts as family violence?

Family violence includes more than physical abuse. Under the updated Divorce Act, it can include:

• Physical and sexual abuse.
• Threats of harm or death.
• Psychological and emotional abuse, including coercive control.
• Financial control or deprivation.
• Harassment, stalking, or threats to pets or property.

Protective legal tools

• Emergency protection orders / restraining orders under provincial family law or protection statutes, which can:
  • Order an abuser to stay away from you and your children.
  • Prohibit contact by phone, text, or social media.
  • Remove the abuser from the home, at least temporarily.
• Criminal charges and bail conditions if the behaviour also violates the Criminal Code.
• Exclusive possession of the family home for a spouse, even if not on title, in many provinces.

Impact on parenting orders

• Court must weigh:
  • Nature and pattern of violence.
  • Risk of harm to the child or the non-violent parent.
  • Whether the violent parent can safely have parenting time, and under what conditions.
• Possible outcomes:
  • Supervised parenting time.
  • Gradual increase in time with conditions (treatment programs, counselling).
  • In severe cases, no contact.

What are the main family court processes and timelines in Canada?

Family disputes in Canada can be resolved through negotiation, mediation, arbitration, or court, with court proceedings often taking 1 to 3 years depending on complexity and local delays. Most courts require or strongly encourage some form of alternative dispute resolution before a full trial.

Primary dispute resolution options

Typical court stages

1. Application / Petition: One party files documents starting the case and setting out claims.
2. Answer / Response: The other party responds within a set time limit (often 20 to 30 days if within the province).
3. Case or case conference: Judge meets with parties and lawyers to narrow issues and promote settlement.
4. Motions or interim hearings: Shorter hearings to set temporary arrangements for support, parenting, or use of the home.
5. Disclosure and settlement efforts: Exchange financial information, attend mediation or further conferences.
6. Trial: If there is no settlement, a judge hears evidence and makes final orders.

Timelines and delays

• First case conference: Often 2 to 6 months after starting the case, depending on location.
• Interim motions: Can be scheduled more quickly for urgent issues, such as safety or child abduction.
• Trial: In many centres, trial dates are 12 to 24 months out, sometimes longer.

How much does a family law case cost in Canada?

Family law costs in Canada range from a few hundred dollars for basic advice or simple uncontested divorces to tens of thousands of dollars for fully litigated disputes. Your total cost depends on complexity, level of conflict, choice of process, and whether you qualify for legal aid.

Typical cost ranges (in Canadian dollars)

Court and government fees

• Court filing fees for divorce and related applications often range from $200 to $600, depending on province and steps taken.
• Some provinces charge additional fees for motions, conferences, or trial scheduling.
• Fee waivers may be available for people with low incomes.

Legal aid and low-cost options

• Each province has a Legal Aid program with financial eligibility criteria; coverage for family law varies and often focuses on:
  • Family violence cases.
  • Child protection matters.
  • Serious parenting disputes.
• Other resources:
  • Duty counsel and family law information centres at some courthouses.
  • Student legal clinics associated with law schools.
  • Unbundled or limited scope services where lawyers assist with parts of a case.

When should you hire a family lawyer or other expert?

You should strongly consider hiring a family lawyer in Canada whenever there are children, significant property, safety concerns, or unequal bargaining power. A lawyer can protect your rights, help you avoid costly mistakes, and negotiate or litigate more effectively than trying to navigate complex rules alone.

Situations where a lawyer is especially important

• Parenting disputes, especially where there are:
  • Allegations of family violence or abuse.
  • Concerns about abduction, substance misuse, or mental health.
  • High conflict and poor communication.
• Significant assets or debts, including:
  • Real estate, family businesses, or complex pensions.
  • Large RRSPs or investment portfolios.
  • International assets or cross-border issues.
• Spousal support claims that will significantly affect your financial future.
• Common-law relationships where the law is less straightforward and depends heavily on evidence and past contributions.
• Any agreement (cohabitation, marriage contract, separation agreement) that you want to be enforceable long term.

Other experts who may help

• Mediators to help you reach agreement on parenting and finances.
• Financial professionals (accountants, financial planners, business valuators) to:
  • Value businesses and pensions.
  • Model tax consequences.
  • Plan for post-separation budgets.
• Child specialists and psychologists for parenting assessments and to bring forward the child's perspective safely.
• Family violence support workers and shelters if safety is an issue.

What are the best next steps if you have a family law issue in Canada?

The best next steps are to gather key documents, get at least one legal consultation in your province, and decide whether to pursue negotiation, mediation, or a court application. Acting early, especially about children and finances, can prevent problems from becoming harder and more expensive to solve.

Step-by-step action plan

1. Clarify your priorities
   • List your main concerns about children, money, housing, and safety.
   • Decide what you must have, what you can compromise on, and what would be "nice to have".
2. Collect essential information
   • Recent tax returns and notices of assessment.
   • Pay stubs, benefit statements, and employment contracts.
   • Bank, investment, mortgage, and loan statements.
   • Property deeds, vehicle ownership documents, and pension statements.
   • Any existing court orders or agreements.
3. Consult a family lawyer in your province or territory
   • Ask about your rights and obligations for parenting, support, and property under local law.
   • Get a preliminary view of likely outcomes and best processes (mediation vs court).
4. Consider safety and interim arrangements
   • If there is any family violence risk, develop a safety plan and speak with police or a shelter as needed.
   • Set temporary parenting and financial arrangements to reduce conflict and uncertainty.
5. Choose a resolution path
   • If communication is possible, explore negotiation, mediation, or collaborative law.
   • If not, or if there is urgency, discuss with your lawyer whether to start a court application.
6. Document everything
   • Keep records of payments, communication about the children, and any incidents relevant to safety or parenting.
   • Store important documents in a safe, backed-up location.

Taking structured steps and getting early, jurisdiction-specific advice can dramatically improve outcomes for you and your family in the Canadian family law system.