The Divorce Act, R.S.C. 1985, c. 3 regulates the process through which a couple may terminate their legal marriage. 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,” 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.
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The “Breakdown of a Marriage” Defined
The “breakdown of a marriage” consists of the three following grounds: one-year separation, adultery, and cruelty. These are further defined below.
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. The following factors may be considered:
- 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.
- The 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”.
The next ground for divorce is adultery, which is defined as voluntary sexual intercourse between a married person and 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. 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, 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 (slight evidence of opportunity standing alone is not sufficient); and
- Proof of an inclination to commit adultery. This must be more than just a warm friendship with a person of the opposite sex, and evidence of general reputation is inadmissible.
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, 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.
Experienced counsel can make all the difference in your divorce. Contact our Ontario divorce lawyers at (905) 581-7222 to see how we can help you.