In Ontario, married couples seeking a divorce are subject to both federal and provincial law. Under the federal Divorce Act, a court may grant a divorce to a couple where there has been a “breakdown of the marriage”.
In Canadian law, a breakdown is deemed to occur in one of three circumstances:
One-year separation: you and your spouse have lived separate and apart for at least one year with the intention of not living together again;
Adultery: Your spouse has committed adultery and you have not forgiven him or her; or
Cruelty: Your spouse has been cruel to you (this may mean physical violence or causing severe mental anguish), making it unbearable to continue living together.
If you are asking for a divorce because of adultery or cruelty committed by your spouse, you will need to have proof of what happened, and the burden will be on you to prove that happened. As the burden of proving cruelty or adultery can be quite high, most couples rely on the one-year separation period as the grounds for divorce. Only a court can grant a divorce and it is up to the parties in their application for divorce to satisfy the court that there has been a breakdown of the marriage.
The difference between separation and divorce is important to keep in mind. Separation occurs when spouses decide to live apart with the idea that the marriage is over. The parties do not intend to live together again. In the case of separation, you and your spouse can come to an informal agreement as to custody, access, spousal support and property. An informal agreement will not be legally binding.
You and your spouse can also negotiate a separation agreement, which is a legal document detailing the arrangements on which you have agreed. It is always recommended that you obtain legal advice when putting together a separation agreement.
A divorce is a document signed by a judge under the Divorce Act which legally ends a marriage.
In Ontario, legislation provides for a “no-fault” approach to divorce. This means that the reason for the divorce, or whether one party is at fault, does not affect the parties’ entitlement to property division, custody or support.
Divorce applications can take several months to finalize in cases where there are no complex issues. Cases involving complex issues to be resolved, such as custody or support, can take much longer. It is always advisable to speak to a knowledgeable family lawyer when starting a divorce application. Jason P. Howie has many years of experience practicing exclusively in family law, and he can help guide you through this complex process. For more information, contact Jason P. Howie online or at 1-800-335-7511 today.