To get a divorce under Canadian law you do not have to prove that one spouse did something wrong. Most divorces are granted on the basis of "marriage breakdown". This is proven simply by showing that the spouses have lived "separate and apart" for one year prior to the granting of the divorce judgment. In other words, you do not have to wait for one year after separation before seeking a divorce. You can start divorce proceedings immediately after separation. The only limitation is that the court cannot grant a divorce judgment until the spouses have been separated for a year. Where divorce is sought on the grounds of physical or mental cruelty that makes the continuation of the marriage intolerable or if the divorce is sought upon the grounds of adultery, a divorce judgment can be granted without waiting for a year to pass. However, it is usually easier, less expensive, and less painful to wait for a year and divorce on the grounds of "marriage breakdown".
Before commencing a divorce petition the court requires either one of the parties to have been resident in Ontario for at least one year. Also, it is not necessary for both spouses to apply for a divorce. A divorce can be granted even where the divorce is only sought by one spouse.
Although you usually need to have been separated from your spouse for at least a year before the court will legally grant your divorce, you can apply for your divorce as soon as you and your spouse separate. This way, your divorce will be ready to be finalized once you and your spouse come to the end of your one year separation.
During the one year separation, the law encourages spouses to try getting back together by allowing a trial reconciliation period. The law also requires lawyers to advise their divorce clients that there are counselors available to "help"` fix a broken marriage. If you and your spouse decide to give your marriage another try at any point during the one year separation period, you can move back in together and not affect your application for divorce. If you move in for a uninterrupted period exceeding 90 days the one year countdown will have to start all over again. If the attempted reconciliation does not work and it was not greater than 90 days, you will still be eligible for a divorce one year after your original separation date.
Although the court will generally grant you and your spouse a divorce if you show that your marriage has broken down, the judge will also want to make sure that you have made suitable arrangements for your children.
I have had many situations where a spouse comes to my office and requests a divorce. The usual case is that the spouses have been separated for a number of years and either have a separation agreement or a court order. However, since May 1, 1997, the Child Support Guidelines have come into effect and if the previous court order or separation agreement is not consistent with the Child Support Guidelines, then the court will not sign a divorce judgment.
A divorce only terminates a legal marriage. It will permit the person to get married again (provided that a Certificate of Divorce is obtained). A divorce does nothing more. However, a person does not need to be divorced in order to live with another person. In fact, there are many people who have been separated for years (without a divorce) and live with another common law spouse.
Walter Drescher is a partner at the law firm of Cobb & Jones LLP. Should you have any questions for Ask A Lawyer, please direct them to the Simcoe Reformer or ask a lawyer of your choice.