Under the Federal Statute, the Divorce Act, divorce may be granted in Canada on only one ground: marriage breakdown. Marriage breakdown can be proved by one year of separation, adultery or cruelty. It is more difficult to get a divorce based on adultery or cruelty, as your spouse may oppose it, making the whole process much more time consuming and expensive.
“No fault divorce” is at play in Canada. This means that custody, access and support are not based on the reasons for the end of the marriage. The Divorce Act states: “A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage…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 and were living separate and apart at the commencement of the proceeding; or (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, (i) committed adultery, or (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses”.
Divorce can be granted by an Ontario court if either spouse has been “ordinarily resident” in the province for at least one year immediately preceding the start of the divorce proceedings. “Ordinarily resident” in the province means that your permanent home is in Ontario. The definition of “ordinarily resident” has been considered in many cases and has been interpreted to refer to a place where you have a settled routine in your normal life, rather than somewhere you visit or stay. There is a requirement that you intend to live in Ontario permanently or indefinitely. So, Ontario can still be your residence if you winter in Florida every year for three months, as long as you always return to your home here afterward.
Living separate and apart
The requirement that spouses live “separate and apart” has also been considered by the court. Living “separate and apart” does not necessarily mean that you have to live in different houses. If your relationship has ended but you remain in the same house as your spouse for any reason (i.e. children, money) you can still be deemed to be living “separate and apart”. The important aspect is that you are no longer behaving like a married couple. Some of the criteria the court will look at if asked to determine whether spouses are living separate and apart are as follows: (a) physical separation; (b) withdrawal by one or both of the spouses from the matrimonial obligation with the intention to destroy the matrimonial consortium; (c) absence of sexual relations is not conclusive but is a factor to consider; (d) lack of communication between the spouses and discussion of family problems; (e) absence of joint social activities; (f) meal pattern; (g) performance of household tasks; (h) making plans for his or her assets as a separate person; (i) the relationship and conduct of each of them toward members of their respective families and how such families behave toward the parties; (j) the financial arrangements between the parties regarding the provision of or contribution toward the necessities of life (food, clothing, shelter, recreation, etc.) [From Oswell v. Oswell (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.); aff’d (1992), 43 R.F.L. (3d) 180 (Ont. C.A.].
If you and your spouse are jointly applying for divorce, the only proof of your separation that you will need is a sworn affidavit stating when you separated.
In addition to proving that you have lived separate and apart for a year, it is required, in a divorce proceeding, that the court be satisfied that there is no possibility for reconciliation of the spouses. As long as you do not get back together for more than 90 days or for several periods that add up to more than 90 days, you do not have to wait another year to get a divorce. This time of attempted reconciliation will still count toward the time you are separated. This gives the incentive to try and repair your marriage without the threat of delaying your divorce. Marriage counseling may be helpful in a reconciliation attempt. In fact, lawyers are required to recommend reconciliation and counseling to their clients.
Who can file for divorce?
One or both of you and your spouse can file for divorce any time after separation. It is not necessary for both of you to want a divorce. If one spouse wants a divorce, the marriage can be said to have broken down. The only caveat is that you cannot apply for a divorce on the basis of your own adultery or cruelty. Under that ground for divorce, the “innocent” party must be the one to apply.
Procedure for getting a divorce
In order to start the divorce process, you must file an application with the court. This may be filed jointly with your spouse or alone as a general or simple application. If you are applying jointly, you will file the application (Form 8A), along with an affidavit for divorce (Form 36) and a divorce order (Form 25A). If your application also involves a claim for support, custody or access or a claim for property, you will require additional forms to support these claims.
For a general or simple application, you will require the forms listed above as well as an affidavit of service (Form 6B). Service is the form of delivery of a document required by pertinent legal rules. There are various ways you can serve the application. The respondent (the other spouse) has 30 days from the date the application was served on him or her to file a response. The general application may also be accompanied by claims for property or support, while the simple application is merely an application for divorce.
The forms may be printed from our website or from the Ministry of the Attorney General. Forms are also available at any family court office.
The Central Registry of Divorce Proceedings must be notified when you are seeking a divorce. The registration of divorce proceedings form can be obtained from the court. This form is completed at the court when you file your application. The Central Registry of Divorce Proceedings will check its database to ensure that these parties have not already begun a divorce proceeding and will issue a clearance certificate. The court cannot grant your divorce until the clearance certificate is obtained.
Your original marriage certificate must also be filed with the court. If you do not have your marriage certificate, you can obtain a new one from the Registrar General of Ontario. If you were married in another Province of Territory, you can obtain a copy of your marriage certificate from the government of that province or territory. If you were married outside of Canada, you will have to submit an English version of your marriage certificate. A certified translation will be required if it is not in English.
If the judge grants your divorce claim, he or she will grant you a divorce order. The divorce order will state that the divorce is effective on the 31st day after the date on which the order was made. The certificate of divorce is the proof of the date of your divorce.
Ontario law allows a spouse to elect to resume their former surname upon divorce. The surname that you can elect to resume is the surname you held immediately before marriage. Immediately following receipt of a divorce order, annulment or the death of a spouse, you can change your name back for $25.
The forms can be accessed from the Registrar General and can be requested by telephone at 1-800-461-2156 or in Toronto at 416-325-8305.
Time limits for support, custody or property division?
There are no time limits to ask for support or to determine custody. That being said, these things are not easy to vary. You should try and come to an agreement or ask the court to rule on these issues in a way that you will be satisfied with in the long-term.
You can always come back to a court after a divorce and ask for support. However, spousal support is decided based on need, so if you are divorced for a long time before asking for support, a judge may decide that support is not in fact needed.
Custody arrangements are similarly changeable but you may be fighting an uphill battle. Courts value stability in child-rearing. So, if a child has been living with one parent for a long time a court may be reluctant to change this. You will have to have convincing evidence to make a judge change the order for custody or access.
Property division is different. You cannot ask the court to divide property you and your spouse shared while you were married if two years has passed since your divorce. You are similarly barred if you have been separated for more than six years or if more than six months have elapsed since a spouse has died regardless of whether or not you are divorced.
Please make sure that you consult your Toronto divorce lawyer as soon as possible to ensure that you fully understand your rights and that they are protected.