Are You New to Canada? Here’s What You Need to Know About Divorce
If you are a newcomer to Canada and are also facing the breakdown of your marriage, the legal process can feel unfamiliar and overwhelming.
Understanding the basics can make the process more manageable, so we have set out some of the most common questions we receive:
Q: I’m Originally from Another Country. Do Canadian Laws Apply to Me?
A: Yes. As long as you live in this country, Canadian Family law will apply, including the federal Divorce Act and Ontario Family legislation. This is regardless of where your marriage took place, or what your immigration status might be.
That said, if you are new to the country, you may also face additional considerations that are important to understand at an early stage. Some of these are described below.
Q: Do I Have to be a Canadian Citizen to Get Divorced Here?
A: No. Under the Canadian federal Divorce Act, you do not need to be a citizen to obtain a divorce in Canada. What matters is residency.
Generally, one spouse must have been “habitually resident” in a Canadian province for at least one year before starting your divorce application.
If you were married in another country, your marriage will usually be recognized here, provided it was legally valid where it took place. This means you can still seek a divorce in Canada even if the wedding occurred elsewhere.
Q: Does Divorce Affect My Immigration Status?
A: It depends.
This is one of the most common concerns for newcomers, particularly where one spouse sponsored the other for permanent residence. And the answer will depend on your situation:
- For permanent residents: If you are already a permanent resident, a divorce does not automatically affect your status; in other words, you do not lose permanent residence simply because your relationship has ended.
- For permanent residency applicants: If however your immigration status is still in process, or if you are in Canada on a temporary basis (for example, on a work or study permit tied to your spouse), then the situation can be more complicated. In those cases, it is best to obtain advice from an immigration lawyer alongside any Family Law advice.
Q: What Happens to Spousal Sponsorship after Separation?
A: If you have sponsored your spouse for immigration purposes, it will still have financial consequences even after the relationship ends.
Your sponsorship arrangement will usually have involved an undertaking to the Canadian federal government to provide financial support for your spouse for a fixed period. For a sponsored spouse, common-law partner or conjugal partner, that period is generally three years from the day the sponsored person becomes a permanent resident.
That financial obligation does not simply disappear because the spouses separate or divorce. It is also separate from any spousal support obligations that may arise under the Divorce Act or Ontario’s Family Law Act. In other words, the spousal support claims under Family Law may intersect with, but do not replace, any sponsorship duties.
Q: How is Property Divided in Ontario?
A: Essentially, through a set formula. Ontario uses a system called “equalization of net family property” under the provincial Family Law Act.
Each spouse calculates their net worth at the date of separation, and the spouse with the higher increase in net worth during the marriage typically pays the other half of the difference.
If you are a newcomer, complications can arise where:
- You have property that is located outside Canada
- You owned assets before arriving in Canada
- You or your spouse have records or documentation that are incomplete, or difficult to obtain
Ontario courts can still take foreign property into account, but valuing and proving those assets may require additional evidence.
Q: What About Children and Parenting Arrangements?
A: Canadian law starts from a clear principle: The focus is on the best interests of your child. This concept is central under the federal Divorce Act and provincial Family legislation.
With that said, for immigrant families there can be added layers of complexity, including:
- Extended family living abroad
- Cultural or religious expectations around parenting roles
- Concerns about one parent relocating with the child to another country
If there is any risk that a child may be taken out of Canada without consent, the situation should be addressed promptly, as international child abduction issues can arise.
Q: Are There Cultural or Practical Barriers to be Aware Of?
A: Many newcomers face challenges that go beyond the legal rules themselves. These may include:
- Language barriers when navigating court processes
- Limited familiarity with Canadian legal rights and obligations
- Financial dependence on a spouse
- Social or community pressure discouraging separation
It’s crucial to get clear information early. Obtain advice from qualified professionals, because it can make a significant difference in managing these issues.
Q: What Should I Do First?
- There are a few different initial steps. If you are considering separation (or have already separated), we recommend this:
- Gather financial documents and records
- Obtain legal advice about your rights and obligations
- Consider speaking with an immigration professional if your status may be affected
Getting early legal guidance will help you avoid complications, especially where your immigration status, foreign assets, or children are involved. Give our offices a call, and we can help you navigate the complexities of the Canadian system.