Grounds for Divorce in Ontario
If you have been living separately from your spouse for more than one year, are grounds for a Divorce in Canada.
If you are still living at the same address as your spouse and not able to move out for financial reasons, under certain circumstances, you may still be able to file for your divorce.
In “no-fault divorce, the grounds aka reasons that you and your spouse separated are not required.
A final divorce can be sooner when filing the grounds of adultery.
If a person is seeking a divorce on the grounds of cruelty or adultery, they must not have forgiven the offence.
There are 3 grounds for divorce in Canada
What are the 3 grounds for divorce?
In order to apply for a Divorce in Canada, you must be able to satisfy one of three grounds.
One Year Separation – No-Fault Divorce
Adultery – For Fault Divorce
Cruelty – For Fault Divorce
One Year of separation as a ground for divorce
If you have been living separate from your spouse for more than one year, the court will grant you a divorce. You do not, however, have to wait until your year of separation is up before filing for your divorce. You can file for your divorce after about 6 months has passed from when you separated, or anytime after, and then when the year of separation is up, the divorce will be granted at that time.
If you are still living at the same address as your spouse and not able to move out for financial reasons, under certain circumstances you may still be able to file for your divorce or have your divorce granted. To do this though, you must not be “living as husband and wife” with your spouse, and certain criteria are used to determine whether you are considered to be living as husband and wife or not.
When an application for divorce is filed on the basis of “one-year separation”, no other ground or reason for the divorce is required. This is what is commonly known (mostly in popular culture) as a “no-fault divorce”. The reasons that you and your spouse separated are not required to be given to the court. Just the fact that you have separated from each other is sufficient. Your evidence of having lived separate from the time you claim you have, is simply your sworn affidavit.
What is unreasonable Behaviour in a marriage?
If you have not been living separate from your spouse for over one year and you do not want to wait for the year to be up to qualify for a divorce under that ground, you may be able to obtain your divorce much sooner by filing for your divorce on the grounds of adultery.
Adultery occurs when either the husband or the wife has sexual intercourse with another person while still legally married to his or her spouse. The adultery need not take place when the spouses are still living together to qualify as “adultery”. Even after the spouses have separated, if one party has sexual intercourse with someone else, it is still adultery.
However, if the adultery had taken place during the time the spouses were living together, and the other spouse, even though he or she knew that the adultery had occurred, continued to live as husband and wife with the (adulterous) spouse for a period of three months or more, then that act of adultery can not be used as a ground for divorce, because under the present law, the injured party is said to have “condoned” the adultery by continuing to live in a husband and wife relationship with the adulterer. In order for the adultery to be used as a ground for divorce, the injured party must separate from the adulterer within three months of having learned of the adultery.
If your spouse is willing to admit to the adultery by swearing an affidavit to that affect before a clerk at a government office, then this is sufficient evidence of the adultery. And your divorce will still be considered a “simple” divorce. However, to be able to obtain your divorce under this ground, your spouse must be willing to give the date and address at which the said adultery occurred. Then an affidavit to that affect and your spouse must be willing to swear it. Arrangements for your spouse to swear it at a location more convenient can be made.
Please note: The name of the person (surprisingly to most, this is the present law) your spouse committed adultery with. What is required, is how you found out about the adultery.
Your spouse can be assured that adultery is not against the law. There is no criminal sanction against adultery. It is simply a ground for divorce. However, in order to proceed under this ground, there can be no collusion on your part, in relation to the adultery.
What is mental cruelty in a marriage?
If you wish to obtain a divorce from your spouse on the basis of cruelty, this will not be considered a “simple” divorce for the purpose of our fees.
In order to obtain a divorce on the basis of this ground, the cruelty complained of must be “of a grave and weighty nature such as to render cohabitation intolerable”, to use the wording of the statute.
The law was originally written many, many decades in the past and has not changed in recent years. It is widely viewed in the legal community as being archaic for the reason that the level of cruelty and the effect on the injured party that the ground requires, is of such severity that it leaves many legitimate victims of cruelty out.
What may be considered cruelty by today’s standards may not be severe enough to meet the standards of this old and archaic section of the act.
Can a judge deny a divorce in Canada?
If a person is seeking a divorce on the grounds of cruelty or adultery, they must not have forgiven the offence (condonation) or plotted with the spouse to create the offence in order to obtain a quick divorce (connivance). In other words, you can’t encourage your spouse to have sex with someone in order to be able to sue for adultery.
If the spouses resume cohabitation with a view to reconcile and the “injured” spouse has forgiven the “offending” spouse, and the activity (either the cruelty or adultery) has ceased, then the “injured” party cannot rely on adultery or cruelty that occurred prior to the resumption of the relationship as grounds for divorce.
In addition, there are a number of peculiar evidentiary and procedural rules in an adultery action that make suing for divorce on the basis of adultery even more complicated. As a result, most Canadian divorces are based on separation for one year and even most people who seek a divorce on the basis of adultery or cruelty often end up being divorced on the basis of the one year’s separation, rather than incur the cost of a contested trial.
In many cases, it is better to file for divorce on the grounds of one-year separation and avoid getting entangled with our broken family law system. Save your money and sanity by waiting until the one year is up to have the divorce granted.
Would you like to learn more? Get in touch for a Get Acquainted Call to learn more about finding a separation agreement with a soft landing.
Articles that may interest You!
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Hi, my name is Ken Maynard.
I am a family court survivor, Family Mediator and Certified Divorce Financial Analyst (CDFA). For 10 years now I have been helping separating couples find their Soft Landing. I look forward to working you.
Ken Maynard CDFA, Acc.FM
I help smart and successful couples, create separation agreements with clarity and soft landings for secure futures, in 4 meetings or less without all the lawyer created overwhelming conflicts, confusion and costs. You can work with me by video conference or with a DTSW associate at any of our 6 DTSW Greater Toronto mediation centers, including | Aurora | Barrie | North York | Vaughan | Mississauga | Scarborough.
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Ken Maynard CDFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/May 23, 2023
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