What is a divorce?
Divorce is the legal end of a marriage. It does not end all of the obligations between spouses. It simply ends the legal relationship that was created when two people were married.
In NL, you will have to apply to the Supreme Court to get a divorce. The Provincial Court has no jurisdiction to hear matters arising out of an application for divorce.
The Divorce Act
Divorces in Canada are governed by the federal Divorce Act. That act sets out the rights and obligations of persons getting divorced. This act (including provisions on parenting orders, child support and spousal support) does not apply to unmarried couples who are getting separated.
Note that there have been significant changes to the Divorce Act, and these changes will come into effect on March 1 2021. These changes were made in order to: promote the best interests of the child, address family violence, help reduce child poverty, and make the family justice system more accessible and efficient.
When can you get a divorce?
In order to get a divorce, you must show that there has been a “breakdown of the marriage”.
There are three ways to establish a breakdown of the marriage, but the most common is to show that you have been living “separate and apart” for one year.
You can also show a breakdown of the marriage on the basis of “adultery” or “cruelty”. To establish either adultery or cruelty the applicant for divorce would have to provide evidence establishing either adultery or cruelty, which can often be difficult and uncomfortable. Given that adultery and cruelty are more complicated to prove, and the fact that establishing them will not impact the court’s decision on property division, child support or spousal support, the most common way to get a divorce is by living separate and apart for one year.
You can start your application for divorce prior to living separate and apart for one year as it takes a few months for the process to be finalized.
Living separate and apart usually means living in separate places, but sometimes a couple stays in the same house even though their relationship has ended. This may be for financial reasons or for the stability of any children involved. Each case is different so, depending on the circumstances of the case, a couple living under the same roof may be considered living “separate and apart” if they put an end to joint activities. Some signs that a couple living under the same roof may be putting an end to joint activities include: staying in separate bedrooms; cooking meals or doing laundry individually; and/or not sharing social activities.
The one year separation is interrupted if cohabitation resumes for a period of, or periods totaling, more than 90 days.
How do you get a divorce?
You can file for divorce without a lawyer, but often it is confusing and time-consuming; consider obtaining legal advice to assist you in the process.
To file for divorce, there are several documents required. In addition to providing the Court with various documentation, such as the marriage certificate, the applicant must complete the following Court forms to apply for a divorce:
Originating Application: This form contains several sections which must be completed, and will require details of the marriage, the grounds for seeking a divorce, whether child/spousal support is being sought, and more. You can file an originating application for divorce on your own, or you and your ex-partner can file it together by using the joint originating application form.
Response: If you filed an origination application on your own, the other party is supposed to respond and can agree or contest the divorce petition. They have a window of time in which to do so.
If the spouse does not respond to the application or challenges any of the claims, the applicant spouse can proceed with an uncontested divorce, which is a fairly straightforward procedure.
If the responding spouse disputes the grounds for divorce or challenges any of the claims (parenting arrangements, support, etc.), this is called a contested divorce. A contested divorce means that the applicant will have to prove the contents of their divorce application; they may have to prove the grounds for divorce, or give evidence as to why a particular matter such as parenting arrangements or support is at issue. The responding party will have the opportunity to put forward his/her case as well. The focus of this hearing in Court is usually parenting arrangements or support; the grounds for divorce are not usually challenged.
Note that you must be resident in Newfoundland and Labrador for one year before you can make a divorce application in this Court.
What is “Corollary Relief”?
When the judge makes a divorce order, they can provide for “corollary relief”, which means they can make orders with respect to parenting arrangements, child support and spousal support.
You will have to provide additional information if you are looking for corollary relief.
Where these claims are raised in a divorce proceeding, you will have to provide additional information with your application and responses. The specific information required is set out in the Originating Application form itself.
Divorce Judgment
The Court will give a “Divorce Judgment” if the divorce is granted. The cost of obtaining your judgment for divorce and corollary relief is $60. Your divorce will become final 31 days after the judge signs the divorce judgment.
Getting a Certificate of Divorce
Once your divorce is final (see above), you can obtain a Certificate of Divorce from the Court, which costs $20. To obtain a Certificate of Divorce you have to complete this form and email it to the Court registry in the judicial centre that granted your divorce or deliver it to the Court registry in person. Email addresses for Family Division locations may be found here and email addresses for General Division locations may be found here. Requests should be submitted at least 30 days before you require your Certificate of Divorce. The Court will contact you when the Certificate is ready to discuss payment and pick-up/delivery options.
Impact on Parents and Children
Going through a separation and/or divorce can be a difficult time for adults and children alike. It is of the utmost importance during this trying time to maintain as much stability and normalcy for the child/ren involved as possible. It is also imperative that parents ensure child/ren understand that they aren’t to blame for the situation, and that both parents love them and will be there for them during this troubling time.
Responsibilities of Parents
The following are some of your responsibilities as a parent during a separation or divorce:
- Do not speak badly about, or argue with, the other parent in front of the child/ren.
- Do not ask the child/ren to be a messenger to the other parent.
- Do not ask the child/ren to keep secrets from the other parent.
- Do not ask the child/ren to choose sides.
- Do not use the child/ren to ‘get back’ at the other parent.
- Be sure to make sure the child/ren know(s) what is going on, that it isn’t their fault, and reiterate your unconditional love and support for them.
- Always put the care and protection of the child/ren at the top of your responsibilities.
- If you are introducing a new partner, be patient. It may take your child/ren time to adjust.
- Be sure the child/ren understand(s) that they are not losing their family, it is just changing.
Do not be afraid to seek professional help. Some children may need counselling to help them through this difficult time.
For Children
The following are important points to remember if your parents are separating or divorcing:
- If your parents are divorcing, it is NEVER about you. No matter what they might argue about, the divorce is between your parents only.
- You are not alone – lots of kids went through this and are okay, and you will be too!
- Divorce is NOT your fault.
- Your parents are not divorcing you – they are your parents forever.
- Talk about it. Go to your parents and tell them how you feel and what they can do to make things easier on you.
- If your Mom or Dad has a new friend, give them a chance. Try to be friends with them – you never know, you might like them a lot!
There are many useful resources to help parents better explain the situation to their kids, as well as many useful sites to help kids understand what is going on. Some helpful tools include:
- This ‘Families Change’ site has separate sections for children, teens and pre-teens, professionals and parents. The site, provided by the Government of British Columbia, includes guides to separation and divorce as well as links to additional resources.
- This site from the Federal Department of Justice is a detailed site for kids and parents called ‘What Happens Next? Information for Kids about Separation and Divorce’. There are several sections, including how to explain the change, coming up with plans, what to in the case of violence, and much more.
- A guide published by Health Canadawhich provides information for parents to help children and teens through separation and divorce. Provides guidance on parenting through divorce, developing a cooperative parenting relationship, and how to help kids at different ages and stages.