What New Canadians Need to Know About Divorce – A Practical Guide for Immigrant Families in Ontario

Are you a newcomer to Canada?  If so, the decision to separate or divorce in this country can feel overwhelming – what new Canadians need to know about divorce, especially if you are still just getting used to unfamiliar laws, cultural expectations, and immigration and relocation concerns.

Adding a divorce or separation to the mix will no doubt add financial pressures and worries about your children – and perhaps concerns over your immigration situation as well.

The good news is that Ontario’s Family Law system is designed to protect the rights of all spouses and parents, regardless of immigration status or how long you have lived in Canada. This brief Blog will explain some of the key points to know, including how spousal sponsorship can affect your divorce.

What New Canadians Need to Know About Divorce:

Adjusting to the Canadian Regime

First things first:  In Canada, the Divorce Act is a Canadian federal law.  If you and your partner are a married couple, it governs the actual granting of your divorce.  If you have children together, it can also cover related issues such as parenting time, decision-making responsibility, and child support.  Either way, this regime may be different from how divorce in your home country works:  Canadian courts do not consider fault or blame when granting a divorce, and you and your spouse do not need to agree to a divorce, for it to proceed.

On the other hand, if you are unmarried then Ontario’s Family Law Act (which is provincial legislation) governs property division, spousal support for unmarried partners, and many day-to-day family matters.

But, it’s important to know that even if you are married, that provincial Family Law Act can still apply to any property divisions issues – such as the equalization of your net family property, and possession of the matrimonial home you shared together.

Parenting Issues for Immigrant Families

Next, if you’re a newcomer, you may face unique and complicated parenting challenges if you and your spouse separate, especially if he or she wants to travel to – or permanently return to – another country with your children.

In Ontario, the courts focus exclusively on the best interests of the child.  This includes stability, safety, connections to each parent, emotional well-being, and cultural and linguistic heritage.  As long as the children are “habitually resident” in Canada, the courts have jurisdiction to make an order that fosters those best interests.  The fact that the child – or the parents – are not yet Canadian citizens is legally irrelevant under either the federal Divorce Act or provincial Family legislation.

Some issues that often arise under this heading include:

• Disputes over passports and international travel
• Concerns about one parent relocating back to their home country
• Fear of child abduction
• Integrating children’s cultural backgrounds into parenting arrangements

Court orders, parenting plans, and travel consent letters are tools that can help manage these concerns.

Property Division and Finances May Also Differ From Your Home Country

Ontario law has specific rules about dividing property when married spouses separate. These rules may be unfamiliar to you as a newcomer, particularly if you are from a country where property division follows entirely different customs, or where land ownership is simply based on whose name is on title.

Ontario uses a system called equalization, which compares the increase in both your and your spouse’s net worth during your marriage. This often means that even if a house or business is in one of your names only, then the other spouse may still have a significant financial claim.

How Spousal Sponsorship Affects Separation and Divorce

Finally, if you are a newcomer to this country, your concerns about your divorce or separation may be overlaid with worry that it might jeopardize your immigration status. Here are the key points to know:

• If you were sponsored to come to Canada as a spouse or partner, your permanent resident status does not automatically disappear because you separate or divorce. Once permanent resident status is granted, it continues unless there is fraud or misrepresentation.
• Your sponsor remains financially responsible for you for the length of their undertaking (usually three years from the date you became a permanent resident), even if your relationship with them ends. This obligation is to the Canadian government, not to you directly.
• If you are the sponsor and your relationship ends, you remain bound by that undertaking. Separation from the person you have sponsored does not cancel it.
• If you are in Canada on a temporary visa connected to your spouse’s status, you may need to explore options for changing or extending your immigration status independently.

With all that said, it’s important to get tailored legal advice from both an immigration lawyer and a family lawyer, since these two areas can intersect, and your legal rights will be based on your specific facts.

Getting Help

Divorce is never easy, but navigating it as a newcomer can be especially stressful. Understanding your rights under Ontario law is the first step toward protecting yourself and your family. Our Fine & Associates law firm is experienced at helping all our clients understand their rights, explain their options, address immigration concerns, and ensure they make informed decisions. Feel free to give our offices a Call or request a Free Consultation.