Are you eligible to file for divorce in Ontario?

The decision to end a marriage can be one of the most emotionally and legally challenging. It is important to understand the eligibility criteria and the grounds to file for divorce before you proceed.

Are You Eligible To File For Divorce In Ontario?

Before you can file for a Divorce in Ontario, you must be

1. Legally married.
2. There is no possibility of reconciliation.
3. You or your spouse has been a resident of Ontario for at least one year prior to filing for Divorce.

The Divorce Act is the federal law that deals with divorce matters in Canada. If you are not legally married, divorce law does not apply to you.

There may be an exception to the residency requirement mentioned above. If both you and your spouse live outside Canada and you live in a country that does not recognize your Canadian marriage, you may be able to end your marriage under the Civil Marriage Act and can apply for divorce in Ontario with existing forms from the Ministry of the Attorney General.

It is important to note that you are not legally divorced merely by seeking a religious divorce. For a marriage to be recognised as over in Ontario, you must be legally divorced as per the laws in force in Ontario.

Of course, for some religions, divorce in accordance with their religious laws is a requirement before the parties wish to remarry.

 

Grounds to file for divorce in Ontario

In Ontario, you can file for divorce if one of three grounds are satisfied.

1. At the time of hearing the Divorce Application, the parties have been separated for at least one year.
2. Adultery.
3. Cruelty.

The most common and recommended ground for filing for divorce is separation for one year.

Many people do use adultery or cruelty grounds for divorce but the time to prove adultery and cruelty would equally take approximately a year, therefore it is always advisable to file for divorce on the grounds of separation.

Separation as grounds for divorce

To use separation as grounds for divorce in Ontario, you need to prove that you have lived separately and apart for at least one year. To clarify, 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, separation 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 clearest and most 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 although they were abiding in the same dwelling, they no longer continued to live as a couple.

Once separated, you’re able to try to reconcile at any time within the one-year separation period. However, you will only be able to live together for a total of 90 days or less. If you live together for more than 90 days, your one-year period of separation must start all over again.

Adultery as grounds for divorce

To use adultery as grounds for divorce, you will need to prove that your spouse has had sexual relations with someone else. You also need to prove that you cannot tolerate living with your spouse as a result of his or her actions. You and your spouse may live under the same roof, but your acts should not amount to condoning your partner’s adulterous relations.

Evidence will be necessary for the Court to grant a divorce based upon adultery. It is not sufficient for a party to merely suspect that their spouse was having an affair. Proof of the adultery could include pictures, restaurant bills, text messages, but it is not always possible to obtain such concrete evidence. The evidence of adultery could be set out in a sworn statement, or the Court may require a hearing with oral evidence presented by the Applicant and their witness(es). The evidence must be convincing for a Court to grant a divorce based upon adultery. For example, sufficient evidence could include evidence of the adulterous spouse admitting to the adultery or evidence from the third party having the affair with the adulterous spouse, attesting that the adultery occurred.

It is not necessary to name the third-party with whom your spouse was in an adulterous relationship, in your divorce Application. Should you choose to do so, your application needs to be served on the person and they would have an opportunity to respond in the same way as the other Respondent (your spouse).

Mental or physical abuse as grounds for divorce

To use abuse as grounds for divorce in Ontario, you will need to prove that your spouse has physical. Or prove they mentally abused you and that their behaviour has made it impossible for you to continue living together. In your petition, you will need to set out a number of allegations against your spouse.

If you wish to seek a divorce on the grounds of mental cruelty, it may be difficult to provide evidence in support of your allegations unless you have an extreme case. This would involve numerous allegations and several witnesses.

There are various forms of violence, and unfortunately, many forms of family violence are crimes.  This could include:

• Physical abuse such as hitting, punching, kicking, burning, cutting, stabbing, forcibly confining, or shooting;
• Some forms of psychological abuse such as threatening violence, destroying property, stalking; and
• Financial abuse such as withholding a paycheck or failing to provide life necessities.

Other forms of family violence may not be considered crimes such as humiliation, yelling or controlling behaviour, but they are often signs that violence.

In one interesting case, the question arose as to whether a spouse’s text messages can amount to “violence” against the other.  A father and mother separated after 15 years of marriage and they had one child together, who was 12 years old.  The mother claimed that the father’s abusive texts to her had amounted to “violence”. The court began by observing that, for the purpose of Family Law Act considerations, violence does not need to be physical.

Violence through non-physical actions such as words or deeds is a concept well established in both criminal and civil law. Words may be delivered in many different forms and the facelessness and ubiquitous nature of electronic messaging impose no variation on the analysis. Violence as constructed within Section 24(3)(f) of the Family Law Act does not require direct physical injury.

The father’s texts had been sent to the mother over the course of a full week, were threatening and intimidating, and were not proportional to the situation. Any reasonable person would have found them to be injurious.  Moreover, they were potentially harmful to the child, and it was of critical importance to the court that their daughter not be exposed to adult conflict.  The court found that the father’s vitriolic text clearly met the threshold for violence for the purposes of the Family Law Act section and allowed for a grant of exclusive possession to be authorized in the mother’s favor.

Difference between grounds for divorce- timeline

The most significant difference is that if you claim divorce based on the ground of living separate and apart for one year then you must wait the requisite one year before you can apply for a divorce order, and then an additional 31 days for the divorce order to take effect once granted. If you apply for a divorce based on the ground of adultery or cruelty then you can apply for a divorce immediately after your separation date, and then you only have to wait the additional 31 days for the divorce order to take effect once granted.

In Canada, most people choose to file an Application for Divorce under the ground of living separate and apart for one year. It is usually difficult to prove adultery and cruelty without sufficient evidence. It may take a party nearly a year or more to prove adultery or cruelty, therefore it is advisable in the absence of circumstances indicating otherwise to proceed under the one-year separation ground.