Separation for More Than One Year
Other Grounds for Divorce
Cruelty
Adultery
Condontation and Connivance
How Long Does it Take to Be Divorced?
In 2000, the most recent year for which statistics are available, 153,659 people were married in Canada and 71,114 couples were divorced. Generally, divorces in this country are obtained on the basis that the parties have been separated for one year. This means that Canada has a no-fault system in that it does not matter who left the marriage or the reason why they left. All the court cares about is whether or not the parties have been separated for one year.
SEPARATION FOR ONE MORE THAN ONE YEAR
This is by far the most common ground for divorce. The one-year period begins to run as soon as one party or the other believes the marriage is over and there is no reasonable chance it can be saved. It does not have to be a mutual decision, so long as one party or the other believes the marriage is over, that is enough to start the one year period running.
The husband and wife do not have to physically separate. They can continue living in the same house so long as they are not acting as a husband and wife would normally act. No single fact will determine whether or not two people are still acting as a married couple. For example, they can share a bedroom or even a bed and still be considered separated.
Ironically, it is the more mundane activities that a court will often rely upon to establish a marriage relationship, for example, a declaration on an income tax return of a wife as a dependent; whether one party does the other party’s laundry; whether the parties make a point of eating meals together; whether one party cooks for the other or does the dishes for the other party, whether the parties have intimate relations. A court may find the parties still reside together as husband and wife for some of these reasons.
In an effort to encourage reconciliation, the Divorce Act allows couples who are in a period of separation to live together as husband and wife for a total of ninety days during the one year, without that ninety days being subtracted from the one year calculation. If the parties live as husband and wife for more than ninety days during any one year, however, the separation period has to start again.
It is therefore important to clearly communicate your desire to separate from your spouse. The best evidence of this is to do so by written communication, either personally or through counsel.
You are entitled to obtain a divorce if you have been separated for one year, provided that adequate provision has been made for the support of any children of the marriage. A court will not grant a divorce for any reason unless a child support agreement is in place. A Separation Agreement or court order is generally required to prove that the non-custodial parent is paying child support.
OTHER GROUNDS FOR DIVORCE
There are other grounds for divorce including adultery and mental or physical cruelty of a nature as "to make the continued cohabitation of the husband and the wife intolerable." If you are able to prove either adultery or mental or physical cruelty, you may apply for a divorce immediately and are not required to wait one year from the date of separation.
CRUELTY
The definition of cruelty is subjective and the courts will consider each case on its merits and not according to an objective standard, although the court will require objective and corroborated evidence that the cruelty took place. Some general rules have been established:
• If the husband and wife are still living together by the time the case gets to court on a motion or conference, the petitioner will have a difficult time establishing cruelty because obviously continued cohabitation is tolerable.
• The conduct complained of has to be "insufferable" and must be the conduct of the respondent.
• Examples of mental cruelty most often include excessive public criticism, degrading or sarcastic comments toward the spouse, public tantrums, alcoholism or drug addiction and repeated unwarranted accusations of infidelity. A declaration of a spouse’s homosexuality has been considered mental cruelty if it is combined with continued homosexual relations.
• Physical cruelty is far more obvious to recognize, but is not limited to actual physical contact. It can include damage to property, as well as constant threatening behaviour that would terrorize a reasonable person. A single violent incident will be enough to establish the degree of physical cruelty necessary to dissolve a marriage if that incident is sufficiently violent.
ADULTERY
Adultery is generally defined as an act of sexual intercourse between a husband or wife and another woman or man as the case may be. Homosexual acts have traditionally held not to constitute the basis for adultery, but artificial insemination (without the husband’s knowledge) has been considered adultery. Older cases suggest that oral sex is not enough to constitute adultery.
Contested adultery proceedings are expensive and often take more than a year to come to trial so it’s cheaper and faster in most cases to request a divorce on the basis of a one-year separation. Furthermore, since the 1985 Divorce Act removed "fault" as a consideration with respect to support, there is no tactical advantage to painting your spouse in a bad light.
CONDONTATION AND CONNIVANCE
If a person is seeking a divorce on the grounds of cruelty or adultery, they must not have forgiven the offence (condonation) or plotted with the spouse to create the offence in order to obtain a quick divorce (connivance). In other words, you can’t encourage your spouse to have sex with someone in order to be able to sue for adultery.
If the spouses resume cohabitation with a view to reconcile and the "injured" spouse has forgiven the "offending" spouse, and the activity (either the cruelty or adultery) has ceased, then the "injured" party cannot rely on adultery or cruelty that occurred prior to the resumption of the relationship as grounds for divorce.
In addition, there are a number of peculiar evidentiary and procedural rules in an adultery action that make suing for divorce on the basis of adultery even more complicated. As a result, most Canadian divorces are based on separation for one year and even most people who seek a divorce on the basis of adultery or cruelty often end up being divorced on the basis of the one year’s separation, rather than incur the cost of a contested trial.
HOW LONG DOES IT TAKE TO BE DIVORCED?
Assuming the following set of facts:
(a) This is the first marriage for each of you and your spouse;
(b) You were married in Ontario and you both currently live in Ontario
(c ) There are no children or other issues that your spouse might contest;
(d) Your spouse is expecting the petition and will cooperate with being served.
In those circumstances, you can expect to be divorced at a minimum of between three and four months.
After the petition is prepared it is sent to court where it is given a file number. That same day, the court sends a form to Ottawa requesting clearance from Ottawa to grant the divorce. That clearance will be given provided there are no other divorce cases involving those two parties. If there are no other cases, the Central Registry will issue a Clearance Certificate and send it back to the court where the divorce was issued. It takes a minimum of six weeks and an average of eight weeks for the Registry to send the clearance certificate to the court. A court will not grant a divorce unless the clearance certificate has been received.
Twenty-one days after the day the other spouse was served with the petition, the petitioner may move for a divorce judgment, by swearing an affidavit. The affidavit and other material is then sent to court, where it is processed and (if the clearance certificate has arrived) placed in a box to be sent up to a judge for review. It generally takes a minimum of two to three weeks before a judge reviews and signs the divorce judgment. If the affidavit arrives before the clearance certificate, it may be rejected or the court will wait to process it until the clearance certificate arrives.
Once a judge signs the divorce judgement it takes a further month before the divorce takes effect. The entire time line from petition to judgment takes an average of three and a half months.
In urgent circumstances, a lawyer can arrange to see a judge and ask the judge to sign the divorce that day and make it effective the day it was signed. Technically, the circumstances have to be not of the client’s making and an impending wedding is not considered a sufficient reason to make a divorce effective immediately. Lawyers can sometimes convince judges otherwise, but judges are becoming increasingly reluctant to grant "quickie divorces."
In addition, there are several unforeseen circumstances that can further delay the divorce. Some of those include: a civil servant’s strike or slowdown, if the parties were married outside the province and one or the other was divorced at the time of marriage or if there are difficulties serving the other spouse.
Therefore, we strongly advise that you not book a chapel or banquet facility until you are divorced.
