Divorcing an incarcerated spouse in New Brunswick follows the same legal framework as any divorce under the federal Divorce Act (R.S.C. 1985, c. 3), but requires specific procedural adaptations for service of documents, parenting arrangements, and property division. The filing fee is $110 total, the residency requirement is one year of ordinary residence in New Brunswick, and an uncontested prison divorce typically finalizes within 4 to 8 weeks after filing with the Court of King's Bench, Family Division.
Key Facts: Divorcing an Incarcerated Spouse in New Brunswick
| Requirement | Details |
|---|---|
| Filing Fee | $100 petition + $10 clearance certificate = $110 total |
| Residency Requirement | 1 year ordinary residence in New Brunswick |
| Sole Ground for Divorce | Breakdown of marriage (1-year separation, adultery, or cruelty) |
| Uncontested Timeline | 4-8 weeks after filing |
| Response Period | 20 days (served in NB) or 40 days (served outside NB) |
| Certificate of Divorce Fee | $7 additional |
| Property Division | Equitable distribution under Marital Property Act |
| Fee Waiver Available | Yes, under Rule 72.24(2) for social assistance recipients |
Understanding Divorce Grounds When Your Spouse Is Incarcerated
Under Divorce Act, R.S.C. 1985, c. 3, s. 8, marriage breakdown is the sole ground for divorce in Canada, which can be established in three ways: one year of living separate and apart, adultery, or physical or mental cruelty that makes continued cohabitation intolerable. Incarceration alone does not constitute a separate ground for divorce in Canada, unlike some U.S. states that recognize imprisonment as an independent fault ground.
When divorcing an incarcerated spouse in New Brunswick, the one-year separation period remains the most commonly used ground. Spouses who are separated due to incarceration can count the time apart toward the one-year requirement, meaning you may file for divorce immediately after separation and receive the judgment once 12 months have elapsed. Under Divorce Act, s. 8(3)(b), a brief reconciliation of up to 90 days does not restart the separation clock, allowing couples to attempt reconciliation without losing accrued separation time.
The cruelty ground under Divorce Act, s. 8(2)(b)(ii) may apply if the conduct leading to incarceration involved domestic violence or abuse toward the petitioning spouse. Courts interpret mental cruelty broadly to include conduct that renders continued cohabitation intolerable. If your spouse's criminal conduct caused you psychological harm, documenting this in your petition with supporting evidence can establish the cruelty ground without waiting the full separation year.
How to Serve Divorce Papers on an Incarcerated Spouse in New Brunswick
Serving divorce documents on an incarcerated spouse requires coordination with correctional facility administrators but follows the same essential rules as any personal service requirement. Under the New Brunswick Rules of Court, personal service of the Petition for Divorce (Form 72A) must occur either directly on the respondent or through substitutional service authorized by the court.
Service Options for Prison Divorce Papers
For inmates in New Brunswick provincial correctional facilities operated by the Department of Justice and Public Safety, you must contact the institution directly to arrange service. Provincial facilities house individuals serving sentences of two years less a day. Send the divorce petition to the facility's administrative coordinator with a cover letter requesting that the documents be personally delivered to your spouse and that proof of service be returned to you.
For inmates in federal penitentiaries operated by Correctional Service Canada (sentences of two years or more), the process involves contacting the institution's litigation coordinator. Atlantic Institution in Renous (13175 Route 8, PO Box 102, Renous, NB E9E 2E1) and Dorchester Penitentiary serve federal inmates in the New Brunswick region. Under Commissioner's Directive 084, inmates have guaranteed access to legal assistance, and facilities must cooperate with proper service of legal documents.
Substitutional Service When Personal Service Fails
If attempts at personal service prove unsuccessful, Rule 18.04 of the New Brunswick Rules of Court permits substitutional service when the court determines it would be impractical to effect prompt personal service. To obtain a substitutional service order, you must file an affidavit demonstrating what attempts you made to serve the respondent personally and why those attempts failed.
The affidavit must provide the court with sufficient facts showing that substituted service will effectively bring the divorce proceeding to the respondent's attention. Common methods of substituted service for incarcerated spouses include service by registered mail to the correctional facility, service on a family member who maintains regular contact with the inmate, or in some cases, service by publication in a newspaper circulating in the area where the respondent was last known to reside.
Proof of Service Requirements
Once service is completed, you must file proof of service with the Court of King's Bench, Family Division. The person who served the documents must complete an Affidavit of Service (Form 72H) attesting to how, when, and where service occurred. Without proper proof of service, the court cannot proceed with the divorce.
The respondent has 20 days to file an Answer (Form 72D) if served within New Brunswick, or 40 days if served outside the province. If your incarcerated spouse fails to respond within the prescribed time, you may proceed with an uncontested divorce, which is decided on the written record without a court hearing under Rule 72.16.
Filing Your Divorce Petition in New Brunswick
To file for divorce in New Brunswick, at least one spouse must have been ordinarily resident in the province for at least one year immediately before filing, as required by Divorce Act, s. 3(1). The term "ordinarily resident" means the place where a person regularly, normally, or customarily lives. You can prove residency through a New Brunswick driver's license, provincial health card, utility bills, or witness testimony.
Required Forms and Fees
File your Petition for Divorce (Form 72A) or Joint Petition (Form 72B) with the Registrar of the Court of King's Bench, Family Division. The court holds sittings in all eight judicial districts: Bathurst, Campbellton, Edmundston, Fredericton, Miramichi, Moncton, Saint John, and Woodstock.
The total filing cost is $110, comprising $100 for the petition and $10 for the Clearance Certificate from the Central Registry of Divorce Proceedings in Ottawa. After the divorce judgment becomes effective, you may apply for a Certificate of Divorce (Form 72O) for an additional $7 fee.
Fee Waiver Eligibility
Under Rule 72.24(2), you may be exempt from paying filing fees if you receive social assistance under the Family Income Security Act or if you are represented by Legal Aid New Brunswick. The Registrar also has discretion to waive fees when a solicitor certifies that legal services are being provided pro bono and payment would impose financial hardship.
Parenting Arrangements When One Parent Is Incarcerated
The 2021 amendments to the Divorce Act replaced the terms "custody" and "access" with "parenting orders," "parenting time," and "decision-making responsibility." Under Divorce Act, s. 16(1), all parenting decisions must be made in the best interests of the child, with primary consideration given to the child's physical, emotional, and psychological safety, security, and well-being.
Best Interests Factors Under Section 16(3)
When determining parenting arrangements involving an incarcerated parent, courts consider multiple factors enumerated in Divorce Act, s. 16(3):
| Factor | Application to Incarcerated Parent Cases |
|---|---|
| Child's needs given age and stage | Younger children may have difficulty with institutional visiting environments |
| Nature and strength of relationship | Pre-incarceration relationship quality heavily weighted |
| Willingness to support other parent relationship | Incarcerated parent's encouragement of child's relationship with custodial parent |
| Cultural, linguistic, religious heritage | Indigenous heritage considerations under s. 16(3)(f) |
| Ability to care for child | Limited by incarceration, but phone/video contact may be feasible |
| Child's views and preferences | Weight depends on child's age and maturity |
| Relevant criminal or civil actions | Nature of criminal conviction directly relevant |
| Family violence | Under s. 16(4), court must consider history of violence |
Parenting Time for Incarcerated Parents
Under Divorce Act, s. 16(6), courts give effect to the principle that a child should have as much time with each parent as is consistent with the child's best interests. However, incarceration creates practical limitations on parenting time. Courts may order indirect contact such as letters, phone calls, or video visits rather than in-person parenting time when security restrictions or the child's wellbeing warrants such limitations.
The Supreme Court of Canada in Barendregt v. Grebliunas clarified that section 16(6) is a "parenting time factor" rather than a presumption of equal time. Courts do not presume equal parenting time; instead, they assess what arrangement serves the child's best interests given all circumstances, including a parent's incarceration.
Decision-Making Responsibility
Decision-making responsibility under Divorce Act, s. 16.1 covers major decisions about the child's health, education, culture, language, religion, and significant extracurricular activities. An incarcerated parent may retain some or all decision-making responsibility depending on the nature of the offense, the length of sentence, and their ability to meaningfully participate in major decisions affecting the child.
Courts often grant sole decision-making responsibility to the non-incarcerated parent for practical reasons, particularly when the incarcerated parent has limited communication access or when the conviction involved conduct affecting children. However, each case is assessed individually based on the specific circumstances and the child's best interests.
Property Division With an Incarcerated Spouse
Marital property division in New Brunswick is governed by the Marital Property Act, R.S.N.B. 1973, c. M-1.1, which applies to spouses who are divorcing or separating. Under Marital Property Act, s. 2, marital property is subject to equitable division between spouses, meaning the court aims for a fair distribution rather than an automatic 50/50 split.
Categories of Property
The Marital Property Act distinguishes between family assets and marital property:
- Family assets include the matrimonial home, household goods, and family vehicles used for family purposes
- Marital property includes business assets, investments, and pensions acquired during the marriage
- Exempt property includes inheritances, gifts from third parties, and property owned before marriage (subject to exceptions)
Complications When a Spouse Is Incarcerated
Divorcing an incarcerated spouse introduces several property division complications. First, the incarcerated spouse may have limited ability to participate in negotiations or respond to discovery requests, potentially delaying the process. Second, assets may have been seized as proceeds of crime or used to pay restitution orders, reducing the marital estate available for division.
If your spouse's criminal activity depleted marital assets or created debt, you may argue for an unequal division of remaining property. Under Marital Property Act, s. 7, courts may deviate from equal division when equal division would be inequitable given factors including dissipation of assets by one spouse.
Pension Division
Pensions accumulated during the marriage remain divisible marital property regardless of incarceration. If your incarcerated spouse has an employer pension or Canada Pension Plan credits, you may be entitled to a share of the pension earned during the marriage. The CPP Credit Split allows former spouses to divide CPP credits accumulated during the marriage.
Support Obligations and Incarceration
Child support and spousal support obligations do not automatically terminate due to incarceration. However, an incarcerated spouse's reduced or eliminated income affects their ability to pay support.
Child Support Guidelines
The Federal Child Support Guidelines apply to divorcing parents. Under Divorce Act, s. 15.1, both parents have an obligation to support their children based on their respective incomes. Table amounts are calculated based on the paying parent's income and the number of children.
An incarcerated parent with minimal or no income may have their support obligation reduced to zero or a nominal amount during incarceration. However, courts may impute income to an incarcerated parent if they:
- Have investment income or other passive income sources
- Are voluntarily underemployed (chose a criminal path over legitimate employment)
- Have the ability to earn income through prison work programs
Modifying Support Orders
Either parent may apply to vary a child support order under Divorce Act, s. 17 when there has been a material change in circumstances. Incarceration typically constitutes a material change warranting support recalculation. However, the incarcerated parent bears the burden of applying for variation; support orders remain in effect and arrears accumulate until varied.
Spousal Support Considerations
Spousal support under Divorce Act, s. 15.2 depends on factors including the length of the marriage, roles during the marriage, and each spouse's financial circumstances. An incarcerated spouse generally lacks the means to pay spousal support during incarceration. The non-incarcerated spouse seeking spousal support may need to wait until the other spouse's release or rely on other income sources.
Uncontested vs. Contested Prison Divorce
Most divorces involving an incarcerated spouse proceed as uncontested matters, either because the incarcerated spouse does not respond to the petition or because the parties reach agreement on all issues.
Uncontested Divorce Timeline
An uncontested divorce in New Brunswick typically finalizes within 4 to 8 weeks after filing. The process follows these steps:
- File Petition for Divorce (Form 72A) with $110 fee
- Serve the incarcerated respondent and file proof of service
- Wait 20-40 days for response period to expire
- Request Clearance Certificate from Ottawa
- File final affidavit and supporting documents
- Judge reviews file on paper without hearing under Rule 72.16
- Divorce judgment issued
- Judgment becomes effective 31 days after pronouncement
- Apply for Certificate of Divorce ($7 fee)
Contested Divorce Considerations
If the incarcerated spouse files an Answer (Form 72D) or Answer and Counter-Petition (Form 72F) disputing any issues, the divorce becomes contested. Contested matters require court appearances, which present logistical challenges when one party is incarcerated.
Courts typically accommodate incarcerated parties through telephone or video appearances. Under Commissioner's Directive 084, federal inmates have the right to participate in legal proceedings. The court may also allow the incarcerated spouse's lawyer to appear on their behalf. Security considerations may limit an incarcerated person's ability to appear in person at court.
Legal Aid and Representation Options
Legal Aid New Brunswick provides family law services to eligible low-income residents. Eligibility depends on income and the nature of the legal matter. Legal Aid can assist with parenting orders, support applications, and divorce proceedings, though they generally do not handle property division matters.
Free Resources Available
PLEIS-NB (Public Legal Education and Information Service of New Brunswick) provides free resources including:
- "Doing Your Own Divorce in New Brunswick" handbook
- Family law webinars and workshops
- Family Law Information Line: 1-888-236-2444
The Family Advice Lawyer program offers up to two hours of free legal advice on family law matters, which can help you understand your options for divorcing an incarcerated spouse.
Private Lawyer Costs
Family lawyers in New Brunswick and other Atlantic provinces charge varying rates, with flat fees for uncontested divorces and hourly rates for contested matters. Obtaining multiple consultations can help you find a lawyer experienced with prison divorce cases.
Protecting Yourself During the Divorce Process
Divorcing an incarcerated spouse may involve safety concerns, particularly if the incarceration resulted from domestic violence or related offenses.
Family Violence Provisions
Under Divorce Act, s. 16(4), courts must consider any history of family violence in making parenting orders. Section 2(1) defines family violence broadly to include physical violence, sexual abuse, psychological abuse, threats, harassment, stalking, coercive control, and pattern of behaviour that causes fear for safety.
If you experienced family violence, document this in your petition and consider seeking a protection order under the Intimate Partner Violence Intervention Act (New Brunswick). Even if your spouse is currently incarcerated, a protection order can provide legal protection upon their release.
Confidentiality of Address
If you have safety concerns, you may request that the court permit you to file certain documents with your address redacted or replaced with a care-of address. Discuss this option with the court clerk or a lawyer before filing.