Divorcing in Ontario After a Marriage Abroad

Many people living in Ontario married somewhere else, whether in a religious ceremony overseas, a civil registry office or a wedding in another province. When the relationship ends, the first question is often whether an Ontario court can deal with it at all.

This article walks through the main tests: whether the marriage is recognized, whether the residence rule is met, how to show the marriage ended, and what paperwork the court expects. Your facts matter, so use this to prepare questions rather than as a final answer.

Can Ontario end a marriage that took place abroad?

Generally, yes. A marriage performed under the laws of another country can be ended by divorce in Canada if Canada recognizes that marriage and the residence requirement is met. A divorce is a court order officially ending a valid marriage, and only legally married couples can divorce.

If you are unsure whether your marriage counts as valid, that question comes first, because only legally married couples can divorce. Whether a particular foreign marriage is recognized in Canada can depend on the facts, so it is worth confirming with a lawyer. An annulment is different from a divorce. In Ontario it is governed by the law of England on annulment as it stood on July 15, 1870, as later changed by Canadian or UK legislation, and not by the Divorce Act.

The residence requirement

An Ontario court can hear a divorce proceeding if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding starts. Only one spouse needs to meet this. The marriage having taken place abroad does not change that test.

There is a narrow exception for non-residents who married in Canada. A court in the province where the marriage was performed may grant a divorce when neither spouse lives in Canada, they have lived separate and apart for at least one year, and each lives, and has for at least one year, in a state that will not grant the divorce because it does not recognize the marriage as valid. This does not apply to someone married overseas who lives in Ontario.

Showing the marriage has broken down

The only ground for divorce under the Divorce Act is breakdown of the marriage. It is usually shown by living separate and apart for at least one year before the divorce is decided, and being separated when the case started. It can also be shown, with no one-year wait, if the spouse the case is brought against has since the marriage committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. In those cases the court must also be satisfied that the spouse bringing the case has not condoned or connived at the conduct, and living together again for 90 days or less, mainly to reconcile, is not condonation.

• Spouses are treated as separated for any period they lived apart and either intended to live separately.
• Living together again for no more than 90 days in total, mainly to reconcile, does not interrupt the year.
• Before a divorce is granted, the court must be satisfied there is no collusion and that reasonable arrangements have been made for support of any children of the marriage.

Proof and paperwork the court expects

Under the Family Law Rules, the court cannot grant a divorce until a marriage certificate or marriage registration certificate is filed. It also needs a report on earlier divorce cases started by either spouse, issued under the Central Registry of Divorce Proceedings Regulations. If you cannot get the certificate, the requirement does not apply if the application explains why it is impractical to file one.

Either spouse may start the case. You can file an application naming your spouse as respondent, or both of you can file a joint application with no respondent. In a joint application, the divorce and any other order can be made only with the consent of both spouses. A simple divorce application is for divorce only. Support or property claims cannot be made in it.

For documents issued abroad, such as a certificate in another language, ask what the court will need before you file.

What to do next

Money and property are usually separate from the divorce itself. Ontario's Family Law Act can equalize the net family property of spouses, and the date of separation matters for property valuation. Where the marriage and your assets are in more than one country, get advice on how this applies.

• Find your original marriage certificate or registration and note where and when you married.
• Write down when you and your spouse each became resident in Ontario.
• Record your separation date and any periods of living together again.
• List children, current parenting and support arrangements.
• List assets and debts, including pensions and RRSPs, in any country.
• Check whether either of you started an earlier divorce case anywhere.

With those in hand, a lawyer can tell you whether Ontario is the right place to file and which route fits your situation.

Frequently asked questions