Exploring Grounds for Divorce in Canada is essential when considering a complex and emotional process. Lenehan Musgrave's family lawyers are here to assist you through this journey, offering guidance on the various grounds for divorce, and helping you decide if it's the right time to initiate the process.
Establishing a Marriage Breakdown
It is important to understand that all grounds prove one issue, marriage breakdown. There is no finding of fault in granting a divorce.
In Canada, the Court can grant a divorce if they are satisfied that there has been a breakdown of the marriage. Under section 8(2) of the Divorce Act, a breakdown of a marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding; or
(b) one spouse has committed adultery or treated the other spouse with physical or mental cruelty so that the other spouse has left the marriage.
Ground 1: Separation
Separation is the most commonly cited reason for divorce; it requires the spouses to establish that they have been living separately and apart for one year before finalizing the divorce. Spouses do not need to be living physically in different homes to be considered living “separate and apart;” however, they must demonstrate to the Court that even though they continue to live under the same roof, they remain separated.
There are several factors the Court may take into consideration to determine whether spouses residing together have separated. This can include whether the spouses sleep in the same bed, file their taxes together, attend social events together, have communicated to others their separated status, or participate in family events together.
The ground of separation is the most commonly pled in divorce proceedings.
Ground 2: Adultery
Adultery includes voluntary sexual conduct between a married person and someone other than their spouse. The spouse who has committed adultery cannot file for a divorce based on their actions – only the spouse can. This ground can be complex and is very fact-specific.
Ground 3: Physical or Mental Cruelty
For cruelty to be used as a ground for divorce, the cruelty must be “physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses.” This means that the spouse who is relying on this must provide sufficient evidence to establish for the Court that the level of cruelty is so serious that they are unable to continue living with their spouse and often requires evidence from a professional.
If you are seeking to move forward with a divorce, we encourage you to contact one of our family law lawyers to discuss which ground is most appropriate to your circumstances.
