Federal divorce law Under the
Constitution of Canada, divorce law is a matter of federal jurisdiction, for the
Parliament of Canada. However, Canada did not have a uniform federal divorce law until 1968. Before that time, the process of getting a divorce varied from province to province: • In Newfoundland and Quebec, it was necessary to get a private act of the federal Parliament to end a marriage. • The three Maritime provinces relied on their own pre-Confederation divorce laws which continued in force after 1867. • In the four western provinces, the English
Matrimonial Causes Act 1857 applied, through the doctrine of reception of English statute law. Under that act, a husband could get a divorce on the grounds of his wife's adultery. A wife could not rely simply on her husband's adultery, but had to establish that her husband committed adultery and another listed behavior. In 1925, Parliament provided that in those provinces, a wife could sue on grounds of adultery alone. • In Ontario, divorce was not permitted until 1930, when the federal Parliament enacted a divorce law which applied specifically to Ontario. The federal
Divorce Act of 1968 standardized the law of divorce across Canada and introduced the no-fault concept of permanent marriage breakdown as a ground for divorce as well as fault-based grounds including adultery, cruelty and desertion. In 1986, Parliament replaced the
Act, which simplified the law of divorce further. In
Canada, while
property and civil rights are in the
jurisdiction of the
provinces, the
Constitution of Canada specifically made marriage and divorce the realm of the
federal government. The federal government used this power in 1968 to enact the first
Divorce Act which applied throughout Canada. This means that Canada's divorce law is now uniform throughout Canada, including
Quebec, which differs from the other provinces in its use of the
civil law as
codified in the
Civil Code of Quebec as opposed to the
common law that is in force in the other provinces. The law for division of property and debt, however, is within the jurisdiction of each province or territory, creating a structure where provincial and federal laws will apply in the resolution of the issues in most divorce claims. The Canada Divorce Act recognizes divorce only on the ground of breakdown of the marriage. The breakdown can only be established if one of three grounds hold:
adultery, cruelty, and being separated for one year. Most divorces proceed based on the spouses being separated for one year, even if there has been cruelty or adultery. The one-year period of separation starts from the time at least one spouse intends to live separate and apart from the other and acts on it. A couple does not need a court order to be separated. A couple can be considered to be "separated" even if they are living in the same dwelling, provided they demonstrate a clear intention to end the marital relationship and live separate lives. Either spouse can apply for a divorce in the province in which either the husband or wife has lived for at least one year. On September 13, 2004, the
Ontario Court of Appeal declared a portion of the Divorce Act also unconstitutional for excluding
same-sex marriages, which at the time of the decision were
recognized in three provinces and one territory. It ordered same-sex marriages read into that act, permitting the plaintiffs, a
lesbian couple, to divorce.
Recognizing of foreign divorces in Canada In Canada, foreign divorces are recognized under Section 22 of the
Divorce Act: • Section 22(1) allows recognition of foreign divorces when one spouse has been ordinarily resident in the foreign country for at least one year before the divorce. • Section 22(2) applies to cases involving minor spouses, where a Canadian
legal opinion can validate the divorce without court intervention. • Section 22(3) preserves other legal rules on recognizing foreign divorces on the basis of
precedents, such as •
Powell v. Cockburn, 1976 CanLII 29 (SCC), [1977] 2 SCR 218, which established that foreign divorces may be presumed valid under certain conditions, supported with valid evidence. If the party seeking recognition of the foreign divorce provides sufficient evidence, the presumption of validity is typically upheld. •
Downton v. Royal Trust Co. et al., 1972 CanLII 148 (SCC), which established a significant precedent regarding when a person's participation in a foreign divorce proceeding prevents them from later denying its validity to gain a financial advantage. •
Beals v. Saldanha, 2003 CSS 72, which explicitly extended the "real and substantial connection" test to the recognition and enforcement of judgments from foreign countries, not just interprovincial judgments. •
Dunmore v. Mehralian, 2025 SCC 20, which clarified the guiding principle for determining a child's "
habitual residence" in
family law cases. Provinces make their own
Common law regarding foreign divorces, such as
Rothgiesser v. Rothgiesser, 2000 CanLII 1153, a landmark Ontario Court of Appeal case that established that Ontario courts lack
jurisdiction to grant
corollary relief, such as spousal support, after a valid divorce has been granted in a foreign country. In Canadian provincial courts, the development of case law frequently involves later decisions drawing upon previous rulings that may not be directly applicable to the specific case. A notable illustration of this pattern is found in
Antonyuk v. Antonyuk, 2020 ONSC 644 (CanLII). The husband's divorce was granted in a foreign jurisdiction at the address of his other wife, while his family remained in Canada, the child’s habitual residence was in Canada, the parties were not separated, and no divorce documents were served on his actual wife. The evidence consisted of a handwritten resolution rather than a formal legal court judgment. The husband foreign expert's testimony affirmed the validity of the foreign divorce, even though it was obtained at an incorrect address, without service, and lacked a formal legal divorce decree or child custody decision. The court accepted the foreign expert’s testimony, recognizing the foreign divorce of husband as valid, even though it conflicted with Canadian legal standards for divorce and foreign judgment recognition. Key Feature Comparison of
Antonyuk v. Antonyuk decision with
Precedents used as reasons for decision. This case highlights the lack of a standardized procedure for recognizing foreign divorces in Canadian courts. Judges have significant discretion and can issue unpredictable decisions, sometimes contrary to the Evidence Act, Divorce Act, and Common Law, by relying on foreign expert testimony to justify the recognition of a divorce in Canada despite serious mismatches with Canadian law and
natural justice.
Separation Most provinces of Canada do not have the concept of legal separation. Sometimes, when people say they are legally separated, they mean that they have entered into a legally binding agreement, sometimes called a Separation Agreement, a Divorce Agreement, a Custody, Access and Property Agreement, or Minutes of Settlement. These types of agreements are usually prepared by lawyers, signed in front of witnesses, and legal advice is given to both parties signing the agreement. These types of agreements will, in most cases, be upheld by the courts. However, legal separation is available in the province of Saskatchewan, upon application to the
Court of King's Bench. Legal separation is distinct from a divorce and does not end the marriage.
Alberta In Alberta, The Family Law Act gives clear guidelines to family members, lawyers and judges about the rights and responsibilities of family members. It does not cover divorce, and matters involving family property, and child protection matters. The Family Law Act replaces the Domestic Relations Act, the Maintenance Order Act, the Parentage and Maintenance Act, and parts of the Provincial Court Act and the Child, Youth and Family Enhancement Act. The Family Law Act can be viewed and printed from the Alberta King's Printer website. One goes to the
Court of Queen's Bench of Alberta to obtain a declaration of parentage for all purposes if someone has the property to be divided or protected court and or for a declaration of irreconcilability.
British Columbia While the overall law is standard at the federal level, each province has its own act determining the rules for the division of property and debt, as well as its own procedure for obtaining an order through the courts. In British Columbia, the
Family Law Act covers the division of property and debt between divorcing spouses. The rules of the
Supreme Court of British Columbia provide for contested procedures, where parties do not agree on terms, and for uncontested divorces (also called
desk order divorces) through streamlined procedures designed for spouses who agree on the terms for divorce orders and other relief. To get a divorce order, the court must be satisfied that: • the marriage legally exists, • at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began, • the ground on which marriage breakdown is claimed has been proven, and, • if there are children, an adequate amount of child support is being paid. Ontario requires one year separation == Chile ==