Henderson Heinrichs LLP

Divorce in Canada for Foreign Residents

Kevin Heinrichs

Written by: Kevin Heinrichs (View All Posts • View Bio ) Published: February 17, 2012

Categorized: Divorce, Legislation Analysis.

The Act to Amend the Civil Marriage Act was tabled today in Ottawa.  It seeks to adjust the act to allow non-Canadian residents married in Canada to be able to get a divorce in this country.  Until this legislation passes, there are two bars to non-residents getting divorced here.  The first is the residency requirement.  At least one of the two married people must reside for at least one year in the province through which they are applying for the divorce.  The second is that the current state of the law will not allow people to get divorced if their resident state did not acknowledge the marriage as valid to begin with.  This is usually not a major hurdle.  Marriage in Canada is generally accepted as valid throughout the world.  Canada, however, recognizes and authorizes same sex marriages and there are many jurisdictions in the world which neither allow nor recognize those marriages.

The newly proposed legislation provides that if people marry in Canada, and if the jurisdiction in which the parties reside does not recognize the marriage, those people can get a divorce in Canada.  The specifics are as follows:

  1. Both parties or one party may apply for the divorce.  If only one party is applying and does not have the consent of the other, s.7(2) sets out that that party must obtain an affidavit from the jurisdiction in which he or she resides indicating why the other party’s consent is not forthcoming.  This is extremely problematic.  Divorce, unsurprisingly, is often accompanied by non-cooperation and given that the legislation is clearly focused on same sex marriages, the need for an affidavit could be an insurmountable barrier if it must be obtained from a jurisdiction hostile to such unions.  In Saudi Arabia or in the Sudan, for example, homosexuality invites the death penalty.                                                                                                                                                                                   
  2. The residency requirement of the Divorce Act (ie. you have to live in the province through which you are applying for a divorce for at least one year prior to the application) is waived only in cases where the jurisdictions in which both parties reside do not recognize the marriage as valid.  The theory is that if one of the parties lives in a jurisdiction which accepts the marriage as valid, the parties can jolly well get divorced there.  Nothing too problematic there – even if that jurisdictions divorce laws are draconian, that’s not really Canada’s business.                                                                                                                                                                                                                                                                           
  3. The party or parties applying must prove that they have been separated for at least one year.  The Divorce Act’s remaining two grounds for demonstrating the breakdown of a marriage; namely, adultery or physical or mental cruelty, are not available to those who might make use of the new legislation.                                                                                                                                                                                                                                                                            
  4. The divorce, once ordered, will be immediately effective.  This is different than the standard order for divorce under the Divorce Act which does not become effective until 31 days after the pronouncement.  The reason for the delay under the Divorce Act is to avoid a circumstance in which a party might remarry immediately upon divorce.  As a Divorce Order, as with any trial level judgment in Canada, is theoretically appealable, if it were successfully overturned, the newly married party would face a potential bigamy charge.  Perhaps the legislation foresees that in the case of foreign residents, that is someone else’s problem.                                                                                                                                                
  5. In all of this discussion, remember that this legislation in no way replaces or even alters the Divorce Act.  That means that parties who traveled to Canada and, one would hope, understood the residency requirements of Canadian divorce law, would be free to apply to reside in Canada for the requisite year.  Coming, however, on the heels of the Conservatives’ recently tabled Protecting Canada’s Immigration System Act, the ability to use the Divorce Act may be the purview of a select few.
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