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 relate to parenting arrangements, 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. It is important to remember that an application to divide family property must be made 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. 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.
Adultery is when a spouse has sex with someone other than their spouse.
Cruelty is when one spouse treats the other in such a way that it would be unreasonable for the spouse to continue to live with them. Cruelty can be something that causes physical or emotional harm. The spouse does not have to intend to hurt the other spouse for it to be cruelty. It is the effect that their actions have on their spouse that is considered.
Separation of one year is when the spouses do not live together as spouses for a year or more. Getting back together for no more than 90 days during that year to try to work things out will not affect the one year separation rule.
Because divorce in Canada is considered “no fault”, courts will not consider adultery or cruelty when determining issues related to parenting, support or division of property. A spouse’s conduct is only relevant if it directly impacts the issue at hand – 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 has passed provided that 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 – and that could take much longer than a year. 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, 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 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.
Connivance means that one spouse agrees to an act that they would not normally agree to, such as a spouse permitting the other spouse to commit adultery.
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. 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. 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 other relevant circumstances.