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 straight forward.
Usually the more difficult issues relate to custody and access, child and spousal support and the division of property, not the divorce itself. If the spouses have reached an agreement on these matters, the terms of the agreement can be incorporated into the divorce order. If no agreement has been reached on these matters, either spouse can apply for court orders to settle these matters at the same time as they apply for a divorce.
Grounds for Divorce
A court will grant a divorce if there has been a breakdown of the marriage. Marriage breakdown can be established by showing adultery, cruelty, or separation of one year or more. Separation of one year or more is the most common ground.
Because divorce in Canada is considered “no fault”, using the grounds of adultery or cruelty in an application for divorce doesn’t mean that the court will consider this behavior when determining issues related to custody, access, support or division of property. One spouse’s conduct towards the other spouse is only relevant if it directly impacts the issue at hand – for example if their behavior 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 has passed provided that the other spouse is willing to admit the adultery or cruelty.
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. Upon an application for divorce the court has a duty to satisfy itself that the parties have not colluded to trick or deceive the court, for example by lying about their date of separation in order to get a divorce before they have lived separate and apart for one year. If the court finds that the parties have colluded the application for divorce will be dismissed. Condonation and connivance means that a spouse who has made an application for divorce based on adultery or cruelty voluntarily forgave their spouse or agreed to overlook the act complained of. Again, 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 if it was of the opinion that a divorce would be in the public’s interest, despite the condonation and connivance. Continuing to live with the other party, or moving back in, in an attempt to reconcile is not considered condonation, provided that the period of attempted reconciliation does not total more than 90 days.
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. Nothing that comes out in counselling can be used later as evidence in any legal proceedings.
Finally, if the court is not satisfied that reasonable arrangements have been made for the support of any children of the marriage the matter will be stayed until the court can be satisfied that reasonable arrangements are in place. When a court is deciding whether or not child support arrangements are reasonable they will consider factors such as the Child Support Guidelines, written agreements between the spouses and any relevant circumstances concerning the matter.