Understanding the Grounds for Divorce in Canada
The only way you will be granted a Divorce in Canada is if you can prove to the courts that your marriage has broken down and cannot be repaired. Currently, there are two ways you can legally prove a marriage breakdown. That is by completion of a one year separation from your spouse, or by providing valid proof that adultery or abuse occurred. Most divorces in Canada are granted based on the completion of a one year separation – this is called a “No Fault Divorce”.
One Year Separation – No Fault Divorce
First, let us clarify that you do not have to wait until you have been separated for a full year, in order to apply for a divorce in Canada. In fact, you can begin the application process as soon as you and your spouse are separated. However, the courts will not grant you a divorce, until the full one year separation has been completed.
That said, separating for one year does not always mean that you and your spouse must be living at separate addresses. What it means, is that you must be living separate lives. Separate houses are the most clear and uncomplicated way to complete a one year separation period. However, in the event that separate homes are not possible (due to finances, children etc) you can indeed continue to live in the same house. In this type of situation, the court will require that the couple prove that while they were abiding in the same dwelling, they no longer continued to live as a couple. This can be complicated and it is always best to obtain legal assistance in this situation.
Lastly, if you and your spouse separate and then get back together, you are not always required to begin the one year separation period again. You will only have to restart your one year separation period if you were back together for a period of more than 90 days, or for several periods which added up amount to more than 90 days. This law allows couples a chance to try and work on repairing their marriage, without delaying a Divorce in the event that their attempts are unsuccessful.
Generally speaking, a “No Fault, Uncontested Divorce” is the least complicated and inexpensive way for couples to obtain their Divorce. However, we understand that every situation is unique and getting advice from a lawyer who fully understands your personal circumstances is always the best approach.
Adultery or Cruelty – For Fault Divorce
Couples who chose to file a divorce on the grounds of adultery or cruelty are filing what is referred to as a “For Fault Divorce”. This simply means that one spouse is trying to prove that the other is solely at fault for the breakdown of their marriage.
It is very important to be prepared when filing a “For Fault Divorce”, as the courts will require proof of exactly what has occurred in order to substantiate the claim. For this type of divorce legal representation is almost always necessary. “For Fault Divorces” as usually not recommended, as they tend to be costly, lengthy and difficult. Also, due to the backlog in our court system, it is not uncommon for a “For Fault Divorce” to take a year or more to be processed. This means, a couple could have successfully completed a one year separation (a no fault divorce) in less time, without the added expenses and stress.
Lastly, it is important to point out that regardless of how you prove your marriage has broken down, or under what grounds you file a divorce, this has no impact on the courts decisions regarding custody, access and support of children.
Since every individual situation is unique, we recommend that you have a family lawyer review the specifics of your personal situation. This will allow an expert to give you the advice you need to make the best decisions for your future.
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