Can my spouse be charged with abandonment in Ontario?
The short answer is “No”.
A question that continues to come up from clients in the context of separation and divorce, “Can my spouse be charged with abandonment?”. In this post, Jillian C. Allen, a lawyer at Fresh Legal, sheds light on the age-old question that continues to plague clients and divorce lawyers.
It doesn’t matter if you are married or common-law, if your spouse abandons you, they really are not doing anything legally wrong. While it may feel morally wrong, your spouse isn’t breaking the law and they aren’t going to be punished for it. In a similar post, Fresh Legal intern and University of Ottawa law student, Xinya Wang, answers a similar inquiry from clients: "Can I sue my spouse for emotional distress and mental suffering?". The short answer is "No".
A Little Legislative History...
The “no-fault” divorce became law in Canada in 1968 when the Divorce Act was amended to allow for a divorce if the spouses had been separated for at least three years. Prior to 1968, the only grounds for divorce in Canada were adultery or cruelty.
Fast forward to 1986, and the Divorce Act was further amended by reducing the separation period to one year (instead of three), thus making it easier (quicker) to get a divorce.
Change Your Narrative
Rather than framing it as “abandonment” if your spouse walks out on you, it may be better to think about it as a “breakdown of the marriage”. The Divorce Act permits a court to grant a divorce on the ground that there has been a breakdown of the marriage, and in order to show there has been a breakdown of the marriage, you need to establish one of the following three grounds:
1. The spouses have lived separate and apart for at least one year; or
2. One of the spouses committed adultery, or
3. One of the spouses treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
So what do you do if your spouse walks out on you? If you’re married, you can file for a divorce. If you’re not married but you have children, you can file a court application seeking child support and depending on the length of your relationship – spousal support.
By far the most common ground for divorce is “the spouses have lived separate and apart for at least one year”. This doesn’t mean you need to wait one full year before you can start your divorce, it simply means that it must be one full year from the date of separation to the date your divorce is granted by the court. So let’s say your spouse leaves you on October 1, 2018, you can start the divorce process (ie. paperwork) any time after that date, but your divorce will not be “final” until October 1, 2019 at the earliest.
If you’ve recently separated and your spouse is willing to negotiate an amicable resolution, a separation agreement can help keep you both out of court. If you would like to learn more about negotiating a separation agreement, please contact us.