Divorce Attorney In Ontario, CA
Bringing Clarity to Your Divorce in Ontario
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, since 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.
Application for Divorce in Canada
When a couple experiences a “breakdown of their marriage,” either of the spouses or both, may bring an application for 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.
Looking for guidance related to your divorce? Call our Ontario divorce attorneys at (905) 581-7222 to schedule a free consultation.
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 a 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 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 for 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”.
Divorce & Adultery
The next ground for divorce is adultery, which is defined as voluntary sexual intercourse between a married person and a 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 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.
Divorce & Cruelty
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 that 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.
How Can A Divorce Attorney Help You?
We understand that going through a divorce can be extremely hard and painful. Having an experienced lawyer by your side during your divorce is essential for providing you with the legal support and guidance that you need during this difficult time.
Your attorney will be able to help provide you with information and guidance regarding the following, and more:
- Marital assets
- Property division
- Child custody
- Debt repayments
- Spousal support and other benefits
A divorce attorney will help you by:
- Providing you with legal guidance: Your attorney will be able to provide you with the legal information that you need regarding your divorce and will help and advise you through each step of the process. Knowing the grounds for divorce is critical for ensuring that you are aware of your options and rights. Your lawyer will also be able to answer any questions that you have and offer you objective legal advice on the best next steps to take for your case.
- Handling paperwork: There is a lot of paperwork involved with filing for divorce. Making a mistake while handling your paperwork can cost you both time and money. Your lawyer will be able to handle all of the hefty paperwork for you, ensure that you have everything that you need and that everything gets to where it's supposed to at the right time.
- Collecting necessary records: Collecting necessary records such as your assets and liabilities is important so that your divorce can correctly address all of these possessions.
- Supporting you: Your lawyer is your best advocate. Having a reputable attorney by your side during this difficult time can really help to ease the process for you, and provide you with the emotional support and reassurance that you need.
- Effectively negotiating a settlement: A divorce attorney will be able to effectively negotiate a divorce settlement in regard to the marital estate.
- Fiercely representing you in court: Your lawyer will be able to effectively represent you and advocate for you in the courtroom, in the case that your divorce case gets taken to court. Depending on your situation, going to court may be necessary for disputing matters related to spousal support or child custody. Your lawyer is your best advocate and will ensure that everything is done to help protect your rights and your future.
Don't go through a divorce alone, let our divorce attorneys in Ontario help make the process as smooth and stress-free as possible. Going through a divorce may be an especially difficult time, and having a lawyer by your side to help protect and guide you through every step of the process is extremely important. Contact our team of attorneys today for a free consultation, and to learn more about how we can help you.
Need a Divorce Lawyer in Ontario? Meet Our Team!
Our team of divorce attorneys has years of combined experience in helping families and individuals going through a divorce. The legal matters of a divorce can be extremely intricate, and having a reputable lawyer by your side during this sensitive time is critical.
Meet our experienced divorce attorneys in Ontario:
- It’s My Spouse’s Fault We’re Getting Divorced
- Grounds for Divorce
- Divorce Based on Adultery
- Difference Between Separation and Divorce
- Three Common Myths about Separation and Divorce
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.