Each Canadian province has its own divorce laws, but the actual process of filing for a divorce is quite similar from one province to another. If you're filing in Winnipeg, you'll need to fit the province's criteria for divorce, fill out the Manitoba-appropriate court forms, and file at the Court of Queen's Bench in the city. It's relatively straightforward, but there's a lot to learn about the divorce process, and getting some form of legal advice is usually a good idea.
Criteria for Divorce
Grounds for divorce in Canada are set out at the federal level, and boil down to breakdown of the marriage. You can apply for an immediate divorce on the grounds that your spouse has committed adultery, or that you've been the victim of extreme mental or physical cruelty, but, because these have to be proven in court, they're messy and antagonistic ways to split. If you go that route, you'll no doubt require legal assistance. A no-fault divorce is a simpler proposition: You have to show that you've lived separate and apart for at least one full year. To file in Manitoba, at least one of you must have lived in the province for at least a full year before filing. The Court of Queen's Bench for Winnipeg, where you'll file, is located on York Street. There are also, conveniently, courts in various communities outside Winnipeg.
Getting an Uncontested Divorce
It's simplest to get a divorce if you both want the marriage ended and can agree on terms. That's called an "uncontested" divorce, because the court doesn't need to decide points of conflict between spouses. As long as the arrangements you've made meet requirements for divorce in Manitoba, the courts simply make it official. You'll need to fill out a Petition for Divorce, which in Manitoba is called Form 70A. You can present it together as co-petitioners, or one of you can be the petitioner – the initiator of the divorce – and the other can be the respondent. In that case, you'll need to have the papers formally served on your soon-to-be ex. You can complete the paperwork and file it at any point after you've separated, though the final divorce decree won't be issued until you've been apart for the full year. Your divorce will become final 31 days after the date of the decree.
Contested Divorce in Manitoba
If you want to divorce but your spouse doesn't, or if you're unable to agree on terms beforehand, you have a "contested" divorce. For this, the court is obligated to settle any outstanding matters between you – the possibility of reconciliation, division of property and, especially, custody and support for any children of the marriage – before granting the decree. You'll fill out the same form to petition for your divorce, but serving the papers can be more difficult if your spouse is avoiding you. You might need to hire a professional to track down your spouse and serve the papers, and the likelihood of needing an attorney to help you navigate the process is higher.
The Possibility of Reconciliation
One legal requirement for obtaining a divorce is to show that the marriage has broken down with no prospect of reconciling. It's often difficult to decide whether a relationship is worth salvaging, and you might choose to make the attempt. Under the law, you can move back in with your spouse for up to 90 days without resetting the clock on your one year apart. If you stay together for more than 90 days, then you will need to start your year over again if you separate once more. Part of the divorce process is your declaration that there is no further possibility of reconciliation, whether the divorce is contested or uncontested.
Children, Support and Property
Settling on spousal and child support and dividing marital property and assets can be thorny issues even in amicable divorces. While they're tricky to sort out, the courts have a well-established set of guidelines in place for settling them. You can also attempt to work things out in advance, either on your own, with the assistance of lawyers, or with the assistance of a mediator from Family Conciliation Services. Mediators can also help with the emotionally charged question of child custody, when necessary. The court will not grant your divorce unless it's satisfied that adequate arrangements have been made for child support, so it's important to get that right.
You'll need to provide the court with an original marriage certificate from your marriage, or a certified copy. If you don't have the original, you'll need to order a replacement from the province or territory where you were married. That takes time, and you'll need to pay for it. If you were married outside Canada, you'll need to retrieve your marriage certificate from the appropriate authorities in the country where you were married. You'll also need to provide proof of income for both spouses to validate claims for spousal or child support, along with birth certificates or adoption papers for any children of the marriage. If there's to be a division of property or marital assets, those will need to be listed. In some cases, if the value of an asset is disputed, you may need to have it assessed professionally.
- Though it's possible to file your own divorce papers in Winnipeg, the process will probably go more smoothly with the services or advice of an attorney. See the Manitoba Courts Family Division FAQ for information on how to find a divorce lawyer in Winnipeg.
- If you feel you need help with the divorce proceedings but can't afford or don't wish to hire a lawyer, you can employ a more affordable legal service such as Candivorce.ca or Divorceonline.ca.
- Some of the papers you must file will most likely be affidavits, which are forms that must be signed in the presence of someone authorized to take legal oaths. Wait to sign these forms until you file your paperwork with the court clerk, there will be someone at the clerk's office who has this authorization. There is a fee for this service.
- Neither this article nor any of the listed references and resources constitute legal advice or are a substitute for legal advice. You should at least consult with an attorney before filing for divorce.