To even be able to apply for divorce in Ontario, you have to be resident in the Province for at least one year.
There is only one ground for getting a Divorce in Canada – the breakdown of the marriage. How you go about proving that breakdown is a different story. There are three reasons recognized by common law and the Divorce Act that can be used as evidence of marriage breakdown (and no, we do not just use that vague “irreconcilable differences: phrase):
1) The spouses have separated and have lived separate and apart for at least one year. The separation is usually physical but under some circumstances (economic or financial hardship are most notable), the parties can still live under the same roof and claim to be separated. The evidence of a true separation needs to be presented to the judge in accordance with applicable case law. As long as the “marriage-like” quality of their relationship has ended and the parties have stopped sleeping together, doing chores for each other, going to family events together and so on, separation will likely be established.
In this situation, getting a lawyer is probably a wise move.
2) One or both spouses have committed adultery which the other spouse hasn’t forgiven. In this case, you do not need to name the person with whom a spouse has committed adultery, but if you chose to do so, you will need to serve that person as well, which is only additional and often unnecessary headache.
3) One spouse has been mentally or physically abusive to the other spouse, and that spouse can no longer continue to live in a matrimonial union. The definition of abuse is wide, but it should not be watered down to the point of irrelevance. Also, do not throw around the accusations of abuse if none exist. There are serious matters that should not be taken lightly. You may also get into trouble if you lie to the Court.
The bottom line is that most people ask for a divorce based on separation. To claim a divorce based on adultery or cruelty, you must be able to prove that the adultery or cruelty occurred, and that can be difficult.
Temporary Reconciliation is OK: Spouses who have separated can get back together and move back in to try to reconcile and make the marriage work. But within the one-year separation period, they can only live together for a total of 90 days or less. If they live together for more than 90 days, the one-year period of separation starts all over again from the date of the last separation.
Judges will not grant a divorce when there is
- insufficient arrangements for child support – before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. This is why I recommend that the parties enter into a Separation Agreement before proceeding with the Divorce.
Collusion is when you work with your spouse to lie to the court, either in an affidavit or through your testimony. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce.
Connivance is when one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
Condonation is when you have forgiven your spouse for his or her adultery or cruelty.
To avoid costly mistakes and delays in the process, it is highly recommended to retain a divorce lawyer to assist you with a dissolution of your marriage.