According to s. 8(1) of the Divorce Act (DA), a court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
Establishing a Breakdown in the Marriage
One establishes a breakdown of the marriage by demonstrating one of the following:
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Definition of Living Separate and Apart
In order to be deemed to be living separate and apart one party must have the intention to live separate and apart (s. 8(3)(a) DA) AND the period to which the spouses intend to live separate and apart shall not be considered to have been interrupted or terminated (s. 8(3)(b) DA). Factors such as occupying separate bedrooms, eating meals separately, absence of sexual relations, providing no domestic services for the other spouse are factors which may be considered in determining if one is living separate and apart.
There is no need for direct evidence to prove adultery. The court can draw reasonable inference from the facts to establish guilt of adultery. The Ontario Family Law Rules hold that where the Application for Divorce claims that the other spouse committed adultery with another person, that person does not need to be named, but if named, shall be served with the application and has all the rights of the respondent in the case (R. 36(3)). The proceedings for adultery are covered under s.10 of the Ontario Evidence Act. However, practically speaking this is rarely used by lawyers as a ground for Divorce.
What is Physical or Mental Cruelty?
Being unhappy is generally not considered enough to prove that there is cruelty in the relationship. Rather the impugned conduct of the other spouse must be “grave and weighty” and it must be determined that continued cohabitation would be intolerable. Similar to the ground of adultery, this is rarely used by lawyers as a ground for Divorce.
Eligibility for a Divorce
In order to commence a divorce proceeding s.3(1) of the DA requires that one must be ordinarily resident in the province for one year. Whether or not one falls under the definition of ordinarily resident is determined by case law which may consider where the person intends to make a home, where an individual regularly, normally or customarily lives during that year; where the individual works; where the individual’s home and property are located; and where the person spends most of their time.
Bars to Divorce
Section 11 of the Divorce Act imposes a duty on the court to ascertain whether any of the relevant bars to Divorce exists, such as (a) collusion, (b) reasonable arrangements for the children, and (c) that no condonation or connivance has occurred. Each of these categories have specific tests which determine if one is present which a lawyer would review before making an application for divorce. The bar which is most common is (b) which holds that reasonable arrangements must be made to support the children of the marriage. Therefore, if one cannot prove that the children of the marriage are being adequately provided for according to the Child Support Guidelines (CSG), then the court may refuse to grant the divorce.
For example, Bob and Sue apply for a divorce. They agree that Bob should pay $250.00 per month in child support as Sue has sole custody of the two children of the marriage. Bob makes $70,000.00 and Sue makes $35,000.00. It is highly probably that the courts will refuse to grant this application for divorce as the court may deem that the children are not adequately provided for in accordance with the Child Support Guidelines (CSG). Under the Ontario Child Support Guidelines Bob should be paying $1,043.00 per month, thus, by paying only $250.00 per month he is paying almost $800.00 less than what he should be paying.