By John T. Syrtash, Associate, Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 38 years.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
Question: I’m a girl from India and also new in Canada, so I don’t know about the Canadian rules of divorce. Can I file for divorce without any reason, or do I need somebody who can prove that? I have a problem with my husband. I came here depending on him and to help me apply to the government for my ability to stay in Canada. Now he wants to send me back to India. What type of papers do I need for a divorce, and after divorce, what kind of facilities from the government are available for me because I have a 15-month-old baby?
Answer: You require a competent family law lawyer who takes Legal Aid, and you need one fast. (Note to my readers. I did refer this reader to a competent Family Law Lawyer. Maybe there was a cultural clash. You were raised in rural India, and he was raised in urban Canada. You may not have lived up to his expectations of what he thought an upwardly mobile Indian wife in Toronto society should be like. Or perhaps its something just as ordinary as how, at times, babies can drive couples apart. Or maybe the fantasy that Canadian men have of expecting a “submissive” wife from the Old County is a sad illusion. Once she arrives and experiences how Canadian women assert themselves compared to their peers back home, the illusion disappears. Then again, your husband may just be a boor.
Whatever, you are entitled to separate and leave him at your will without having to return to India. If you are leaving with the baby, make sure you write your husband an email or text in which you advise him as to where you have moved child. Otherwise, you could be charged with the criminal offense of child abduction. Keep a copy of your email or text in case the police require proof that you notified your husband as to your whereabouts. Moreover, upon separation, he’s obligated to pay you both child support until the child is no longer dependent upon both of you. He must also pay you monthly spousal support for at least three years under the Immigration Sponsorship Rules to which he agreed when he sponsored you. After one year of separation, you are also entitled to a divorce. Everyone who has resided in Canada for at least one year is entitled to seek an Order for Divorce for any reason. However, your husband may be restrained from obtaining such a Divorce Order if he is in arrears in support or has failed to come to a written agreement with you as to how much he has to pay monthly. Municipal governments will often not be obligated to offer you public assistance if you have a valid claim for child and spousal support. However, the government is obligated to enforce the Immigration Sponsorship Agreement against your husband to reimburse itself for whatever amounts it does you for public assistance.
However, you don’t have to wait one year to apply for a divorce. You are entitled or child and spousal support the moment you separate from your husband. However, if it is a short marriage of under one year, it is unlikely that you are entitled to any significant claim against your husband’s property and certainly nothing for the net worth of his assets as of the date you married him. However, if you left a position of wealth or a job in India to come to Canada a then he may also be responsible for a greater amount of spousal support than is normally ordered by the Court.
John T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s Divorce Act, House of Commons Standing Committee on Justice and Human Rights (November 26, 2018)
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992
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