Understanding the Grounds for Divorce Filing in Canada: A Comprehensive Guide

Introduction

Hi, I’m Karen Stewart. Divorce is a challenging and emotional journey, often fraught with legal complexities and personal turmoil. In Canada, the process is streamlined by a no-fault divorce system, which emphasizes the breakdown of the marriage without needing to prove specific wrongdoing. In this guide, I’ll take you through the grounds for divorce in Canada, sharing insights from my experience to help you navigate this difficult path with understanding and confidence.

The No-Fault Divorce System

Canada’s no-fault divorce system is designed to reduce the adversarial nature of divorce proceedings. Unlike some jurisdictions where proving fault is necessary, Canadian divorce law allows couples to seek legal help  for separation based solely on the breakdown of their marriage. This approach aims to simplify the process and minimize additional emotional strain, both in the cases of uncontested divorce or contested divorce.

First off, the concept of a no-fault divorce where you don't need to prove wrongdoing to obtain a divorce. Canada has a no-fault divorce system. This means that you don't need to show that there's been a specific marital misconduct such as adultery or cruelty in order to get a divorce. The focus is on demonstrating that the marriage has broken down, which can be shown through a period of separation.

Primary Grounds for Divorce

1. Separation for One Year

The most straightforward ground for divorce in Canada is separation for one year. This does not necessarily mean living in separate residences. Couples can be considered separated while living under the same roof if they can demonstrate that they no longer function as a married couple. Key indicators include living separate lives, such as not engaging in intimate activities, maintaining different schedules, and not presenting themselves as a couple to the community.

I elaborated, "The easiest way to prove that you've been separated for one year is that you've separated your residences and you no longer live together. But that's not the only way you can prove a separation. You could be separated and still living in the same residence. This is becoming more and more common for financial reasons."

During this period, it’s essential to make interim parenting and financial arrangements, especially if children are involved. The year-long separation acts as a cooling-off period, ensuring that both parties are certain about their decision to divorce.

2. Adultery

Adultery is another ground for divorce, defined as voluntary sexual intercourse between a married person and someone other than their spouse. Proving adultery can be complex and often requires evidence such as text messages, photos, or an affidavit from the person who committed adultery. It’s important to note that if the adultery is forgiven or if the couple continues to live together after the incident, it cannot be used as a ground for divorce.

As I mentioned, "Adultery is essentially sexual intercourse with someone other than your spouse during the period of the marriage but before separation. It's important to recognize that adultery cannot be forgiven and still used as a ground for divorce. For example, if the adultery happened a few years before the application was made and the couple had moved past it, this would not be permitted to be used as a ground for divorce."

3. Mental or Physical Cruelty

Mental or physical cruelty encompasses behaviors that make it intolerable for a spouse to continue living with the other. This includes domestic violence, emotional abuse, and financial control. Proving cruelty requires substantial evidence, such as police reports, medical records, or firsthand testimonies. Like adultery, the difficulty of proving cruelty often makes the year-long separation a more practical ground for divorce.

In the interview, I noted, "Mental or physical cruelty cannot be admitted to for proving a ground for divorce, which means that if you're going to use this as a ground for divorce, it's going to have to be proved by submitting evidence to the court. Evidence like with adultery would be affidavits outlining firsthand experiences or firsthand encounters. You may also include exhibits of police reports if police reports have been given, photos, anything like that."

Common Questions About Separation and Divorce Matters

Cohabitation and Separation Agreement 

Couples can be separated while living in the same residence, often due to financial constraints. To establish separation, they must show a clear intention to end the marital relationship, evidenced by separate lifestyles within the home. This can include sleeping in different rooms, managing household responsibilities separately, and not participating in joint social activities.

As I said, "What you have to demonstrate in this case is that you have clearly decided that your marital relationship is over. This can be more difficult if you're asked to provide evidence. In these cases, you live as roommates where there's no intimate activity, so no sex. You don't hold yourself out to be a couple anymore to the community. Often you'll have completely different schedules and you don't have what standard family life is. You wouldn't necessarily eat dinners together or spend recreational time together."

Children and Separation

During separation, it’s crucial to develop a parenting plan that prioritizes the children’s well-being. This plan can be informal or formalized through court orders or separation agreements. Ensuring stability and consistency for the children should be a primary concern, and parents should aim to cooperate in developing a fair and workable arrangement.

I explained, "If you've decided to live separately but together in the same residence, your children will similarly live or continue to live in the same residence. If you've decided to separate your residences, you're going to have to develop some parenting arrangements to take place before a final divorce judgment. Keep in mind that you're required to be separated for a year before your divorce is finalized."

Reconciliation Attempts

The law allows for reconciliation attempts without resetting the separation clock, provided they do not exceed 90 days. This provision encourages couples to explore the possibility of repairing their relationship without jeopardizing their divorce timeline if the reconciliation is unsuccessful.

I highlighted, "While the Divorce Act requires a year of separation to demonstrate a breakdown of the marriage, the law does allow for a period of cohabitation in terms of for reconciliatory purposes for up to 90 days, which will not be counted against the year of separation. If that period of cohabitation lasts for longer than 90 days, the clock restarts and you'll have to wait for a period of separation after that reconciliation period."

Adultery and Proof

Adultery is often a sensitive and difficult ground to pursue. If admitted, the process is simpler, but if not, the accusing spouse must provide convincing evidence. This process can be invasive and emotionally taxing, making the year-long separation a more appealing option for many.

I elaborated, "Adultery can be admitted by the party who committed adultery in order to allow a divorce to proceed. In this case, the party that committed adultery will file an affidavit indicating the time and place of the adultery and admitting that it had occurred. If the party is not willing to admit to it, adultery may need to be proved, which would require the party claiming adultery as a ground for divorce to provide evidence to the court of proof of the adultery. This may include an affidavit of the party's firsthand knowledge of the adultery and include exhibits such as text messages or photos."

Mental or Physical Cruelty: Challenges in Proof

Proving mental or physical cruelty involves presenting detailed and often distressing evidence. The high burden of proof required can make this ground challenging to establish. As with adultery, couples may find the separation route less burdensome and equally effective.

"When we talk about grounds for divorce and mental and physical cruelty, what do we mean? The Divorce Act specifically says mental or physical cruelty to the point that it makes it impossible to continue to reside together or continued cohabitation intolerable. The most obvious example of this is domestic violence or domestic abuse. So physical domestic violence against the other person. But because we're also talking about mental cruelty, this can also include emotional cruelty and may even apply to things like financial abuse."

Misconceptions About Grounds for Divorce

There are common misconceptions about what constitutes grounds for divorce. Issues such as financial disagreements, lack of consummation, or dishonesty, while distressing, do not accelerate the divorce process. The focus remains on the breakdown of the marriage, evidenced primarily through separation.

I clarified, "Are there any important situations that are not a ground for divorce? Because we have a no-fault divorce system, you don't actually need a specific reason to ask for a divorce other than the fact that you just wish to separate and want a divorce. The only requirement in that case is that you have been separated for a year prior to the divorce being satisfied."

Conclusion

Understanding the grounds for divorce filing in Canada is crucial for couples considering this significant step. The no-fault divorce system simplifies the process, focusing on the breakdown of the marriage rather than assigning blame. By clearly outlining the primary grounds for divorce—separation for one year, adultery, and mental or physical cruelty—this guide aims to provide clarity and support. Couples can navigate their separation with legal services and divorce mediation with confidence, knowing that the divorce law is designed to facilitate a fair and reasonable resolution.