Court Procedure: Grounds for Divorce

I want to get a divorce, what do I need to prove?

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Regardless of what Province or Territory you live in, the law relating to obtaining a legal divorce in Canada is the same, as it is governed by the federal Divorce Act. In Canada, a divorce can be obtained by proving to the court that there has been a breakdown of the marriage.

According to the Divorce Act, the breakdown of a marriage can happen in one of three ways. If any one of them occurs, you are entitled to apply for a divorce. In this post we will discuss the various grounds for divorce in Canada, and how each one is applied by the courts.

The reason for the breakdown of the marriage does not impact whether or how much support is paid or how your property is divided. 

Living Separate and Apart For One Year

The most common choice is wait until you and your spouse have lived separate and apart for at least one year.  This is known as the “no-fault” divorce, as it does not require any wrongdoing on either party in order to meet the criteria.  If you can meet this criteria, it is not necessary to show adultery, cruelty, or any other reason for the breakdown of the relationship. 

Living “separate and apart” can mean a number of things, and does not necessarily mean that you lived in separate residences. As long as you can establish that you have been living lives that are separate and apart from each other, albeit in the same house, the court will accept this as grounds for divorce.

In determining whether you were living separate and apart, the court may look at factors such as whether you and your spouse held yourself out to the public as a couple. For example, you may not meet the criteria if you went on dates, out to dinner, the movies, or to family events and it appears for all intents and purposes that you are still a couple.

Adultery

A breakdown of a marriage can also be established by proving that your spouse has committed adultery. It does not matter how frequently it happened, whether it was a one-time event, or what, exactly went on during the adultery.  It is not necessary to name the person with whom your spouse committed adultery; however, if you do want them named, you must include them as a party in your Application, and they will have the opportunity to respond.

There are some important things to consider if you want to claim adultery:-

  • You must be able to prove with evidence that adultery occurred.
  • It cannot be grounds for divorce if you find out about the affair and continue in the relationship.
  • You cannot use adultery as grounds for a divorce if you are the one who committed adultery or you both committed adultery.

Physical or Mental Cruelty

You can also establish that your marriage has broken down by showing that your spouse has committed acts of either physical or mental cruelty against you of such a kind as to make continued cohabitation intolerable. The “cruelty” or abuse can be either physical or verbal/emotional. As with adultery, you are required to prove through evidence that the cruelty/abuse occurred.

Once you have established the grounds for divorce, the process is fairly straightforward. You can see the process in our infographic. If you need help with applying for divorce, contact us.