Can I get divorced in Canada if I got married in my country of origin?

Many immigrants travel to Canada with their spouses and unfortunately, when they want to get divorced, they are not aware of the procedure.

The Court in British Columbia has jurisdiction to grant divorces if one of the applicants has resided in Canada for at least a year prior to and immediately after the divorce petition.

In divorce proceedings, the break up of the marriage must be demonstrated in any of the following ways:

• Separation in excess of one year; however, the couple can live together again for a period of up to 90 days with the purpose of reconciliation without having to start the year of separation again.
• Adultery
• Physical abuse or psychological cruelty in which the coexistence with the couple is intolerable.

In order for the court to grant the divorce, the court must be satisfied that there is no collusion in relation to the divorce application and will not process any application if it finds collusion from the parties involved.  Collusion is defined as “the agreement or conspiracy from which a divorced applicant is directly or indirectly part for the purpose of disrupting the administration of justice and includes any agreement, understanding or arrangement to fabricate or avoid evidence to mislead the court.”

Adultery or psychological cruelty must not be used to establish the break up of the marriage if that behaviour has been pardoned by the innocent party.  Only the innocent spouse can sue for divorce by invoking these circumstances.  In the case of McPhail v McPhail, 2001 BBCA250, the Court of Appeal held that the psychological cruelty has stereotypes and stigmas, therefore, should avoid invoking this factor when the divorce can be granted base on the separation of at least one year and invoking psychological cruelty is unnecessary.

Among other things, it must be demonstrated to the court that there are reasonable agreements for the caring and maintenance of the children.  The agreements are considered reasonable when they comply with the guidelines for child support supported by the court.

If the couple has assets outside of Canada, it must be taken into account that those assets remain outside the jurisdiction of the courts in British Columbia.

By: Maria Campos
Lawyer and Notary Public

Invicta Law Corporation