Certified Specialist in Family Law and Toronto Area Family Mediator and Arbitrator John Schuman was recently asked the following question:
What's a procedure to apply for divorce if I am permanent resident of Canada and I got married in India and right now my wife still in India. Should I apply for divorce from Canada so how it works and how long it takes and if I apply for India then how it works and how long it takes in that scenario. In both cases do I need to go to India anytime or I can finish the divorce procedure from here without going India. In any case I have to pay any amount to my wife on settlement if yes then how it would be calculated. What is difference between contested and uncontested divorce and where it works and for what circumstances.
Unlike many areas of family law, the law of divorce is the same across Canada and is found in the Divorce Act. Under the Divorce Act, a judge may grant a divorce where one of the spouses has been ordinarily resident in a Canadian province for at least one year. So if you have been living continuously in one province in Canada for at least a year, you can apply for a divorce, even if your spouse has not been. So you can apply for a Canadian divorce even if your wife is in India. You should listen to this podcast where I explain the process to get a divorce and its consequences.
Canada will not recognize a divorce granted in another jurisdiction unless at least one of the spouses was “ordinarily resident” in the jurisdiction that granted the divorce. That means, that for Canada to recognize a divorce in India, your spouse must be living there “full time” and have her life based out of the jurisdiction in India that is giving the divorce. Where you were married has no impact on where you are divorced. Canadian courts divorce people who were married in other countries every day. What matters is that one spouse actually lives in the place where the divorce is granted. If you get a divorce from someplace other than where one of the spouses lives, you will have to go to court in Canada to get that divorce recognized here.
In Canada, there are three grounds that could entitle you to a divorce. However, the most common ground is living separate and apart for at least one year. This is a legal test, and the fact that you and your spouse are not in the same country does not necessarily mean that you are living separate and apart. Many married couples live in different regions (e.g. soldiers deployed to another country) and so the important question to ask is whether a stranger observing you and your wife would think that you are married. Perhaps you used to visit her frequently and no longer do, or you no longer speak on the phone. It is always best to consult with a family lawyer to determine whether you are eligible for a divorce, especially in unique situations such as yours.
If you are eligible for a divorce, there are three types in Canada. The first is a joint divorce. This is where one spouse files an application for divorce with the consent of the other spouse. The second is an uncontested divorce. This is where one spouse files an application for divorce, and the other spouse does not file an “Answer” within the time limit. This allows the spouse seeking the divorce to get a divorce order without the other spouse being able to contest it. The final type is a contested divorce. This occurs where one spouse files for divorce, and the other spouse does not agree with the terms of the divorce, such as property division or spousal support. In such cases, the other spouse will file an “Answer” and the divorce will proceed as a family court proceeding. You should watch this video where I explain the family court process, which applies to contested divorces. In all cases, you will have to serve your wife with the divorce application and, since she is in India, she will have 60 days to decide whether to contest the divorce.
When spouses get divorced, there are a number of ‘corollary’ issues, such as family property, spousal support and child support that have to be dealt with. If there are children, a judge will not grant a divorce unless there are concrete plans in place for the support of the children. You should watch this video on divorce and children and listen to this podcast where I explain the law on spousal support. In any case, it is important to speak with an experienced family law lawyer about these issues, as if they are not dealt with properly, it can end up costing you a lot of money.
To learn even more about the divorce process, you may want to get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 eBoo for Kindle or Kobo or as an iBook for iPad, iPhone or Mac. You may also want to listen to this podcast or watch this video. You can also use the search on the right to find lots more articles about marriage and divorce.