ANATOMY OF DIVORCE: THE GROUNDS

Divorce in Canada can be defined as the legal termination of a marriage, which allows for either one of the former spouses to remarry if they so wish. Thus, in order to file for a divorce in Canada the spouses must be legally married and must establish the grounds for divorce. As straightforward as it sounds it can in fact be a painful, costly, time consuming and complex endeavour. Although divorce proceedings can be initiated and carried out without a counsel, it is recommended that due to its complexity that the services of a divorce lawyer are obtained. The governing legislation regarding divorce is the Divorce Act 1985. In Canada there is only one grounds for divorce which may be relied upon by either one of the spouses in order to file for a divorce. This sole ground for divorce is the ‘breakdown of the marriage’. Therefore, in order for a divorce application to be filed and successful the ‘breakdown of the marriage’ must be relied upon and proven on the preponderance of probabilities (Shaw v Shaw).

Breakdown Of Marriage:

Section 8(2) of the Divorce Act 1985 stipulates the conditions which would legally qualify as a ‘breakdown of the marriage’. There are essentially three ways in which a breakdown may be established:

• Separation: Where 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;
• Adultery: Where the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, committed adultery; or
• Cruelty: where the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Separation:

This is a no-fault ground to obtain divorce that means divorce may be obtained without any fault of the other spouse. Separation is a one-year period used prior to the initiation of divorce proceeding in Divorce Court which establishes the ‘breakdown of the marriage’. Separation can be of two types:

• Where the Spouses have chosen to live ‘separate and apart’
• And where the Spouses have chosen to separate but continue ‘living under the same roof’

The latter situation however is one which upon the preponderance of facts can make it more complex to establish a legal separation. A Family lawyer may be helpful in advising the appropriate measures to be taken in this regard.

Separate And Apart:

Separate and apart requires a physical separation coupled with a recognition by only one of the parties that the marriage was at an end. A joint intention is not required.

The courts may look at the following objective factors in order to determine whether the spouses are living apart:

• There must be a physical separation
• There must be a withdrawal by one or both spouses from the matrimonial obligation
• The absence of sexual relations; (not conclusive, but very persuasive in establishing a separation)
• Absence of joint social activities, discussion of family problems, communication between spouses, joint or separate meal pattern.
• Courts give more regard to the true intent rather than the stated intent of the spouses. Matters such as filing tax returns as separated or married are considered.

Living Under The Same Roof:

Just because the spouse remains under the same roof for reasons of economic necessity does not mean that a separation has not occurred. However, such an arrangement fogs the date of separation and may further complicate the divorce.

The indicators that a couple has in fact separated though remain under the same roof are:

• Spouses occupy separate bedrooms
• Absence of sexual relations
• Little to no communication between them
• Wife does not perform any domestic services for the Husband; the Husband does not participate in household maintenance for Wife.
• Eating meals separately
• No social activities together

At any given time since the commencement of a separation period between the spouses if evidence is brought forward that the couple has reconciled for more than 90 days, the separation will be disqualified.

Adultery:

Adultery can generally be defined as the establishment of voluntary un-condoned sexual relation of at least one spouse with someone outside of the marital relationship. However there have also been instances where the Divorce Court has found adultery to be established where the wife artificially inseminated herself without the Husbands consent or knowledge (Orford v Orford).

Adultery once established is a qualifying factor which establishes conclusively the break down of a marriage and may waive the one-year separation requirement in order to initiate divorce proceedings. However, the spouse who has committed adultery cannot rely on this in order to initiate the proceedings as the wording of the applicable statute prohibits it. (S.8(2)(b) Divorce Act 1985)

Also, Adultery may be inferred from circumstantial evidence where the circumstances are incapable of any other reasonable explanation (George v George).

Cruelty (Lacey v Lacey, Winney v Winney, Weis v Weiss):

Cruelty should not be confused with conduct which is merely displeasing to one or both of the spouses, the Courts in fact place a very high threshold upon Cruelty. Factors which the courts consider in order to establish whether the threshold for cruelty have been breached are:

• Each case must be determined on its own merits;
• the cruelty must be either physical or mental that renders cohabitation impossible;
• in almost every case the parties must be living apart in order for the Court to find cohabitation intolerable;
• the acts complained of must be “grave and weighty” and not such that merely illustrate the breakdown of the marriage and incompatibility of the parties;
• cruelty must not become a way of securing a quick divorce where the evidence of some other ground for divorce such as adultery is imperfect;
• the cruelty must be exercised by the respondent actively against the petitioner and not arise from the nature of things, the human condition or the acts of third parties;
• in general, the cruelty must be established by proven and corroborated facts;
• in most cases there should be the element of fear; and
• acts that give rise to injury to health or a reasonable apprehension of the same are not a necessary element of cruelty.

Additionally, the conduct which qualifies cruelty need not be aimed at the spouse but may also qualify as such if subjected towards any children of the marriage.

Conclusion:

This article highlights the basic provisions of statute applicable to divorce with guidance from caselaw, with special focus given to the grounds of divorce. It must be said however it is generally not recommended that parties rely upon the grounds of adultery and cruelty in order to initiate proceedings as these can exacerbate the costs of divorce drastically. For best advise please contact an experienced family lawyer. “Ayaz Mehdi Professional Corporation” is a full-service firm that can assist you with your Family Law matter.

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