On What Grounds May I Obtain a Divorce?
On behalf of Judith Holzman
Under Canada’s Divorce Act, there are three grounds for divorce in Canada all termed “breakdown of the marriage”:
- The spouses having lived separate and apart for at least on year, immediately prior to the divorce hearing occurring. Although the parties can commence a divorce, even if they have been only separated for one day, they will have to wait for the one year to pass before actually receiving a divorce, but to reiterate, can start the proceeding at any time after the separation;
- The spouse against whom the divorce proceeding is being brought by the other spouse must have committed adultery; or
- The spouse against whom the divorce proceeding is being brought must have treated the other spouse with physical and mental cruelty at a level to make a continued marriage “intolerable”.
Living Separate And Apart
The first ground for divorce is fairly easy to understand and not based on the “fault” of either spouse. It requires a breakdown in the marriage and parties living separate and apart (even within the same home), but is usually demonstrated by:
- A separation such as separate bedrooms or sleeping accommodations;
- cessation of the offering of services (such as the making of meals or doing of laundry);
- No longer going out socially together as a couple; and
- Otherwise holding out to the world that the parties are separated.
This can be difficult if there are children who need both of their parents but, as mentioned, a physical separation of households is not required to allow the time to run. Separate beds and even a letter setting out a wish to separate should be sufficient.
Adultery is not just someone saying their spouse has a girlfriend or boyfriend. It is not enough to find a hotel receipt. There must actually be real evidence of the actual sexual intercourse occurring.
In olden days, when the only ground for divorce was adultery, there used to be private investigators following the so-called adulterer or adulteress, actually putting tape on a door to see if they spent the night with a third party and then a report on the so-called adultery occurring. In some cases, the person would admit their adultery, but because of the protection of Canada’s Evidence Actthey would have to waive the protection against self-incrimination when testifying as to their own adultery.
As can be seen, that is a hard ground for divorce to prove, and most couples these days (whether adultery has occurred or not), rely on the first ground of one year of separation.
Physical And/Or Mental Cruelty
Cruelty is not yelling and cruelty is not throwing a sheet of paper. Cruelty would be a significant physical assault, a regime of terror within the house, emotional and psychological abuse (but evidence of its effect on the recipient spouse would have to be shown by psychological or psychiatric evidence) or even that of a facility dealing with abuse victims that can talk about the indicia of emotional abuse. Cruelty can also be evidenced by drug addiction by the offending spouse or alcoholism but again, they require proof.
As is the case with adultery, the evidence requirement leads many spouses to instead rely on the first ground for divorce, but plead cruelty for purposes of obtaining exclusive possession of the home or custody of the children.
Spouses should also carefully consider the selection of a separation date. Based on this date, property is valued for purposes of property division and the calculation of the net family property payment from one spouse to another (in effect the cash payment that equalizes the values of assets that are not joint, but are solely in the name of one or other of the parties).