What You Need to Know About Divorce in Ontario
The Divorce Act regulates termination of legal marriage in Canada. The Act applies to individuals that satisfy the definition of “spouse” in s.2(1): “either of two persons who are married to each other”. Divorce is only for people who are legally married. Common-law couples can’t get divorced.
A divorce is not a requirement for ending a relationship. Married couples can choose to just separate and enter into a separation agreement. A divorce is only necessary if one of the individuals would like to re-marry. A formal divorce judgment is required before a new marriage certificate will be issued.
Grounds for Divorce
A court may grant a divorce on the ground that there has been a breakdown of the marriage. Marriage breakdown is established one of three ways:
- the spouses living separate and apart for at least one year,
- physical or mental cruelty.
One Year Separation
One year separation is the most common and easiest way to obtain a divorce. You can bring an application for divorce at any time, but the court will not grant the divorce unless the one year mark has passed. A joint intention of the parties is not required for separation.
It is possible that living separate and apart can mean living in the same house. Regardless of whether the spouses live in the same residence, the following factors are taken into consideration to determine separation:
- Physical separation
- Withdrawal by one or both spouses from the matrimonial obligation
- Absence of sexual relations
- Discussion of family problems and communication between the spouses
- Presence or absence of joint social activities
- Meal pattern
- Performance of household tasks
- True intent of a spouse as opposed to a spouse’s stated intent
Adultery is the voluntary sexual intercourse between a married person and another person other than his or her spouse. You can bring an application for divorce on the grounds of adultery if you are the victim of adultery but you can’t use your own infidelity as grounds for divorce. Adultery is difficult to prove because the evidence is often circumstantial. If adultery is proven to the court, you do not have to wait the one year separation to be granted a divorce. However, often it can take just as long to prove adultery through the divorce proceedings and in that time the year separation has already occurred.
For a divorce on cruelty grounds, the spouse’s conduct must have caused wanton, malicious or unnecessary infliction of pain or suffering upon the body, the feelings or emotions of the other spouse. The conduct must be of a “grave and weighty” nature and not trivial. For example, the court has considered a series of assaults or one brutal and severe attack to be conduct that amounts to cruelty for the purposes of the DA.