Divorce: An Introduction
Divorce Act, R.S.C. 1985, c. 3 regulates the process through which a couple may terminate
their legal marriage. This Act only applies, however, to individuals that
satisfy the s.2(1) definition of spouse:
“spouse” means either of two persons who are married to each other
Obtaining a divorce is not a mandatory requirement for couples who wish to end their relationship as they may simply choose to separate and enter into a separation agreement. It is only necessary if one of the individuals would like to re-marry at which point he or she must get a formal divorce judgment, and a final certificate verifying it, from the court.
When a couple experiences a “breakdown of their marriage” then either of the spouses, or both, may bring an application for a divorce under s. 8(1) of the Act. The application may be brought to:
- the Superior Court of Justice, or
- The unified Family Court.
These courts have jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
Therefore, if your spouse has resided in Ontario for 5 years whereas you have moved around from province to province, never spending more than 3 months at a time in each location, you may still apply for and obtain a divorce from an Ontario court. In 1946, the Supreme Court of Canada stated that “one is ordinarily resident in the place where a person regularly, normally or customarily lives in a settled routine. The dominant element is that of permanence.” Moreover, it is not necessary that the parties have legal immigrant status as permanent or even indefinite term Canadian residents.
“Breakdown of a marriage” consists of the three following grounds which are listed in s.8(2):
- One year separation,
- adultery , and
Grounds for Divorce
One Year Separation
One year separation is the most common and easiest way to obtain a divorce. This subsection essentially contemplates that the couples have lived separate and apart for a period of no less than 12 months with no prospect of resumed cohabitation or reconciliation. This does not necessarily mean that the spouses must wait a year in order to bring an application as it is possible to bring one at any time. Rather, it means that a court will not grant the divorce unless and until the one year mark has passed.
It is also possible for spouses to live under the same roof and still qualify for a divorce based on the ground of one year separation. Usually what is required, regardless of whether the spouses live in one residence or two, is the consideration of the following factors:
- there must be a physical separation. Living in the same house does not negate physical separation especially if the spouse is remaining there due to economic necessity.
- there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship.
- the absence of sexual relations is not conclusive but is a factor to be considered.
- the discussion of family problems and communication between the spouses.
- presence or absence of joint social activities.
- the meal pattern.
- the performance of household tasks is also a factor, and weight should be given to those matters which are peculiar to the husband and wife relationship .
- The court must have regard to the true intent of a spouse as opposed to a spouse’s stated intent. An additional consideration in determining the true intent of a spouse as opposed to that spouse’s stated intentions is whether the spouse has filed income tax returns as “separated” or “married”.
S. 8(3) offers instructions on how to calculate the period of separation
and further states that the running of the clock will not be stopped if
a separated couple decides to resume cohabitation for the purposes of
reconciliation for a period not exceeding 90 days. Once the 90 day mark
has passed then the clock stops running and the couple will have to wait
an extra year in order to obtain their divorce.
8. (3) For the purposes of paragraph (2)(a),
(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.
This section is necessary because it gives the couple a chance to try and resolve issues in order to reconcile without being punished for their attempt should it fail. It coincides nicely with the duties imposed on the court and legal advisers:
- S.9 of the Act states that legal advisers have a duty to inform their clients of the provisions of the Act dealing with reconciliation. They must also discuss with their clients the possibility of reconciliation and the different services available to facilitate reconciliation, unless it would be clearly inappropriate to do so. Every legal adviser must also present the court with a certificate stating that they have complied with this section.
- S. 10 imposes a duty on the court to satisfy itself that there is no possibility of reconciliation prior to hearing any evidence relevant to the granting of a divorce. If the court thinks that there is a possibility of reconciliation then it must adjourn the proceedings to allow the parties to attempt to reconcile pursuant to s. 10(2). This is mandatory unless it would be clearly inappropriate. Moreover, the proceedings may be resumed after a period of 14 days on the application of either or both spouses.
The next ground for divorce is adultery which is defined as voluntary sexual intercourse between a married person and another person other than his or her spouse. This definition now contemplates intimate sexual acts between homosexuals. It is only possible to bring an application under s. 8(2)(b)(i) if you are the victim of the adultery because an individual cannot use his or her own infidelity as a ground for divorce. If you are able to satisfy the court that your spouse has committed adultery against you then the court has the authority to grant an immediate divorce and the one year separation period may be waived.
Adultery is very difficult to prove and this is validated by the fact that all evidence presented to the court is circumstantial. The court requires that when making a claim of adultery the applicant must prove on a balance of probabilities that the adulterer had:
the opportunity for the commission of adultery, and
- slight evidence of opportunity standing alone is not sufficient
Proof of an inclination to commit adultery.
- Must be more than just a warm friendship with a person of the opposite sex
- Evidence of general reputation is inadmissible, i.e. he or she has committed adultery in the past therefore he or she is more inclined to have committed adultery now.
The third ground evidencing “the breakdown of a marriage” is cruelty. If you are able to show the court that your spouse has treated you cruelly during your marriage then the court may be able to grant you an immediate divorce and waive the one year separation period.
The considerations taken from a 1970 Ontario Court of Appeal decision are to be applied when determining whether or not a spouse has been treated cruelly. This case stated that a spouse who by his or her conduct causes wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other may be guilty of cruelty. This indicates a subjective test whereby the most relevant consideration is the effect of the conduct upon the mind of the affected spouse. Essentially, it seems as though a necessary requirement for cruelty to be established is the deterioration of either the mental or physical health of the affected spouse.
The court also stated that the conduct complained of must be of a ‘grave and weighty’ nature and not trivial. It cannot merely be the incompatibility of temperament between the spouses but rather it must render the continued cohabitation of the spouses intolerable and impossible. The whole matrimonial relation must be considered, especially if the cruelty consists of reproaches, complaints, accusations or constant carping criticisms. Moreover, a 1971 decision from the Saskatchewan Court of Appeal stated that isolated acts that are not themselves cruel can amount to cruelty if they are part of an ongoing course of conduct, the cumulative effect of which renders cohabitation intolerable.
The following are some examples of conduct which the court has considered to be cruel for the purposes of s. 8(2)(b)(ii):
- a series of assaults OR one attack which was brutal and severe
- persistent harassment and abuse, such as incessant name-calling
You should be aware of the fact that adultery and cruelty are rarely claimed as grounds for divorce. It is much simpler and more efficient to separate for the requisite one-year period then it is to bring forward costly and lengthy litigation for the purposes of proving either adultery or cruelty. Judges are generally not willing to listen to spouses’ arguments based on tenuous and circumstantial evidence, which could result in highly litigious proceedings, when the same result could be achieved by simply waiting for the statutorily imposed period.
Therefore, once you are able to satisfy one of the aforementioned grounds resulting in a breakdown of your marriage the court will generally grant you a divorce. There do exist, however, certain circumstances under which a court will refuse to grant a divorce despite a breakdown of the marriage. They are found under s. 11 of the Act and if either you or your spouse is able to prove the existence of:
- condonation, or
- lack of reasonable arrangements
Then the court has the authority to deny the divorce until you are able to satisfy s. 8(2)(a) or (b)(i)-(ii) without the presence of one of the s. 11 “bars to divorce”.
Bars to Divorce
Collusion is found under s. 11(1)(a) of the Act:
11. (1) In a divorce proceeding, it is the duty of the court
(a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;
It presents an absolute bar to divorce and places a positive duty on the Court to satisfy itself that there has been no collusion before allowing an application for divorce. The term collusion is defined in subsection (4) which states:
In this section, “collusion” means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.
An example of collusion would be where a couple agrees to lie about their actual date of separation so to obtain a divorce judgment at an earlier date.
Connivance represents the second bar to divorce pursuant to s. 11(1)(c) of the Act and occurs when the spouse requesting the divorce has encouraged the other to commit a matrimonial offence so that there are grounds for divorce.
In 1945, the Ontario High Court of Justice defined connivance as “when the matrimonial offence of one spouse has been caused by, or has been knowingly, willfully or recklessly permitted by the other.”
This bar only applies to situations contemplating adultery or cruelty as a ground for divorce. It is also a discretionary bar because s. 11(1)(c) allows the court to still grant a divorce despite the existence of connivance if the public interest would be better served by doing so. A 1958 decision from the Ontario Court of lists the principles of law regarding connivance:
- Connivance may consist of any act done with the corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery.
- Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the spouse or recklessly allowed it.
- The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.
- acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep a watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance.
- The court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regards to wholly different circumstances and be led to a conclusion contrary to the justice of the case.
- There is a presumption of law against the existence of connivance and the court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration.
The next bar to divorce found under s. 11(1)(c) is condonation. This bar also only applies to divorce applications brought on the grounds of adultery and cruelty.
Condonation occurs when a spouse, with knowledge of the offence, forgives the offence and continues or resumes cohabitation with the guilty spouse. However, mere cohabitation is not sufficient to prove condonation according to a 1976 decision stemming from the Nova Scotia Court of Appeal. Instead, it must be coupled with an actual intention to forgive and to be reconciled on the part of the wronged spouse.
S. 11(3) exempts resumed cohabitation for the purposes of reconciliation from the application of s. 11(1)(c) if the period totals not more than 90 days. Moreover, if a spouse has condoned a past act of adultery or cruelty, he or she is prohibited pursuant to s. 11(2) from reviving that act and using it as a ground for divorce in a later application. Just like connivance this bar is discretionary in that the court may still grant a divorce notwithstanding condonation if it would be in the public’s best interest to do so.
Lack of Reasonable Arrangements
Lastly, if the couple that is applying for a divorce has children and reasonable arrangements have not been made for their support then pursuant to s. 11(1)(b) the court may stay the granting of the divorce until such arrangements have been made.
This bar is discretionary since the court must be satisfied that the arrangements made are reasonable prior to granting the divorce. The court may satisfy itself by taking into consideration the guidelines amount, written agreements between the spouses and any special circumstances surrounding the specific case that may or may not make the arrangements reasonable for the support of the children.
A good example can be taken from an Ontario decision dating back to 1995. In this case a separation agreement providing for $75 per month per child so that the husband could allocate his income to paying off all joint debts held by the former spouses was deemed to not constitute reasonable arrangements. This resulted despite the caveat contained in the agreement that once the debts were extinguished the amount of child support paid would be increased. The court reasoned that notwithstanding the agreement between the parties, there was ample room in the father’s income to increase the support payments and support obligations to children should always take priority over obligations to creditors.
Therefore, once the spouses have made an application for a divorce based on a breakdown of their marriage, reasonable arrangements for the support of the children have been made and there is no evidence that they colluded, connived or condoned pursuant to s. 11(1) the court may grant a divorce dissolving the marriage.
According to s. 12(1) after the divorce is granted it will take effect on the thirty-first day after the day on which the judgment granting the divorce is rendered. This will apply unless special circumstances exists making it necessary that the divorce take effect immediately. However, before the court may do this the parties must agree that they will not appeal the judgment. If instead the parties choose to appeal the judgment then the effective date of the divorce is the day on which the appeal process is exhausted.
You should be aware of the fact that you have 31 days to appeal a divorce judgment. Once the effective date has been reached pursuant to s.12(1)-(6) then according to s. 12(7) the court must issue a certificate stating that a divorce has been granted and has dissolved the marriage. This certificate is conclusive proof of the formal divorce judgment rendered.
A formal divorce judgment made under this Act has legal effect throughout Canada but what is the effect of divorces granted in foreign jurisdictions? Will they be recognized in Canada? S. 22(1) of the Divorce Act stipulates that a divorce granted after July 1986 may be recognized in Canada if there is a legitimate connection between the parties and the jurisdiction that granted it. This means that it will be recognized if either former spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of the proceeding for the divorce. Subsection (2) states that a foreign divorce granted after July 1st, 1968 will be recognized based the domicile of the wife in the foreign jurisdiction.
The last subsection dealing with foreign divorces is (3) which preserves the common law rules that have been established. Briefly, the common law rules relating to foreign divorces are:
- the indirect domicile rule: a foreign divorce will be recognized in Canada if it is recognized under the law of the foreign parties domicile
- reciprocity rule: a foreign divorce will be recognized if the granting court asserted jurisdiction on the basis of facts that would support an assertion of the jurisdiction in Canada.
- Indyka rule: a foreign divorce will be recognized if there is a real and substantial connection between the spouses bringing the proceeding and the jurisdiction that granted it unless it was obtained by fraud or contrary to natural justice. In order to establish a real and substantial connection the court may consider (but are not limited to) the following factors:
- location of matrimonial home, etc.