Amity Xu* and Jeff Li
Disclaimer: The information contained in this article is general in nature and does not constitute legal advice. Please contact the Law Office of Jeff Jiehui Li or another experienced family lawyer if you are concerned about your family law issues.
Getting a divorce can be a tedious and draining process, which is only further complicated by the initiation itself. Though spouses may live apart from each other, legally ending a marriage will necessitate going through various legal formalities. Under the Divorce Act, applying for a divorce requires breakdown of a marriage, which is the only ground for divorce in Canada. This can be shown in three different ways.
Separation
If you and your spouse have been living separately for at least a year, you can use separation as a reason for divorce. Either spouse can file for divorce before the full duration has elapsed, but the divorce will only be granted after the entire year of separation has passed. Though this typically entails you and your spouse living in separate places, you may also live separate and apart under the same roof. In the latter situation, you may need to prove to the court that your relationship has ended by showing separate finances or social lives, among other things.
At any time during the separation, the spouses may live together for up to 90 days to try to reconcile. If this fails, they may resume separation and keep counting the one-year period from the original separation date. If they live together for more than 90 days, however, they will have to begin counting the year again, starting from the next time they separate.
Adultery
Adultery requires you to prove that your spouse has willingly had sexual intercourse with someone else. Proving this typically entails the adulterous spouse admitting the fact, often by way of an affidavit. The spouse who committed the act may not use this as a ground for divorce, to prevent them from benefiting from their actions. It is possible that they do not admit to the act; the spouse claiming adultery would then have to prove it through other means, such as having a witness testify.
Cruelty
Cruelty requires you to prove that your spouse has harmed you, physically or mentally, to the point that cohabitation is unbearable. Similar to the ground of adultery, only the spouse who has suffered cruelty may use this as a reason for divorce.
Do note that while the process may seem faster when the reason for divorce is adultery or cruelty, they are often more complicated than separation, and certain conditions apply. If you forgive the offence, it may not be used as a valid reason for divorce. If the accused spouse contests the claim, the process will be prolonged and further complicated.
No matter which reason you use for divorce, a Canadian divorce is a no-fault regime, meaning neither party is assigned blame for the breakdown of marriage. If you suffer losses because of the other spouse’s conduct, you may seek redress by other claims, such as damages, spousal support, unequal division of property, or even criminal responsibility.
Jurisdiction and Procedure
At least one spouse, whether an Applicant or a Respondent, must be habitually resident in Canada for one year before the divorce application, or a Canadian court will not have jurisdiction over the divorce claim. There are some limited exceptions to this requirement. If you want to apply for a divorce in Canada but do not meet the residency requirement, you should consult with a Canadian lawyer to see if it will be possible.
As a final word, a divorce claim alone does not deal with other issues like property, spousal support, and parenting and child support issues if the couple has children. Oftentimes, these other issues are more complicated. If not already resolved, they should be claimed at the same time as the divorce application.
Going through a divorce can be challenging, and speaking with a family law lawyer is advised. If you need assistance with any family law issues, please feel free to contact us at (416) 800-7196 or jlpc@lawyer.com.
* Amity Xu is a co-op student of the Law Office of Jeff Jiehui Li