Divorce
A divorce can only be obtained by court application. An order of divorce ends the marriage and leaves the spouses free to remarry. If both spouses agree to the divorce and all related matters, the procedure is fairly straightforward.
Usually, the more difficult issues do not relate to the divorce itself but rather things like:
If the spouses have reached an agreement on these matters, the terms of the agreement can be included in the divorce order. If no agreement has been reached, either spouse can apply for court orders to deal with these matters when they apply for a divorce. It is important to remember that an application to divide family property must be made before the divorce is finalized.
If you want to apply to the court for divorce and you are not represented by a lawyer, you should look at the information in Unrepresented Litigants. If you want to use the Form Wizard to apply for a divorce, create a free account to get started.
Grounds for Divorce
A court will grant a divorce if there has been a breakdown of the marriage. A marriage breakdown can only be established by proving one of the following:
- that the spouses have lived separately for one year or longer
- a spouse committed adultery during the marriage meaning they had sexual relations with someone other than their spouse
- a spouse treated the other spouse with physical or mental cruelty making it intolerable to continue living together
Separation of one year is the most common reason used. This period does not need to be a year of completely uninterrupted separation. Spouses can get back together for a total of 90 days during the one-year period without having to start over.
Divorce in Canada is considered to be no fault. This means that courts will not consider adultery or cruelty when deciding issues related to parenting, support or division of property. A spouse’s conduct is only relevant if it directly impacts the issue at hand. This could be the case, for example, if their behaviour was relevant to their ability to parent their child.
Using adultery or cruelty as grounds for divorce may allow the divorce to be finalized before a year of separation. This will usually only be the case if the other spouse is willing to admit the adultery or cruelty. If the other spouse will not admit the adultery or cruelty, a divorce application based on these grounds would need to go to trial. This could take much longer than a year to resolve. For this reason, many applications for divorce are based on a year's separation even if other grounds exist.
Bars to Divorce
Although they are rarely used, there are circumstances where a court could refuse to grant a divorce. Under the Divorce Act, collusion, condonation and connivance are bars to a divorce.
Collusion means that the spouses have agreed to commit a fraud against the court. The court has a duty to satisfy itself that the parties have not colluded to trick or deceive the court. An example could be lying about their date of separation to get a divorce before they have lived separate for one year. If the court finds that the parties have colluded, the application for divorce will be dismissed.
Condonation only applies when a spouse has made an application for divorce based on adultery or cruelty. If they voluntarily forgave their spouse or agreed to overlook the act complained of, they can be said to have condoned the act. Condonation requires the spouses to fully reconcile with one another. Continuing to live together can be evidence of condonation. However, living together for 90 days or less does not constitute condonation.
Connivance also only applies when a spouse has made an application for divorce based on adultery or cruelty. If the spouse agrees to an act that they would not normally agree to, they cannot use it as a reason for divorce later as the reason would be connived.
The court has a duty to satisfy itself that there has not been condonation or connivance. Unlike collusion, a court could still allow the divorce despite the condonation or connivance. They can do this if it was of the opinion that a divorce would be in the public’s interest.
A court will also refuse to grant a divorce if reconciliation seems possible. In this case, the court will adjourn the matter to give the spouses time to try to work things out and can also recommend counselling. Information that is disclosed in counselling cannot be used later as evidence in any legal proceeding.
Finally, if the court is not satisfied that reasonable arrangements have been made for the support of any children of the marriage, the divorce application will be stayed until the court can be satisfied that reasonable arrangements are in place. In deciding this, the court will consider factors such as the Child Support Guidelines, written agreements between the spouses and any other relevant circumstances.