What Are the Grounds for Divorce in Ontario?

We get this question at our Firm all the time:  What are the grounds for getting a divorce from my spouse? What do I have to prove, to be eligible? Is there a waiting period?

These are all simple questions, and they do have simple answers – but that still doesn’t mean that establishing you are eligible for a divorce is necessarily easy. 

 

Grounds for Divorce under the Divorce Act

Under the federal Divorce Act you can qualify for a divorce in Ontario by simply showing there has been a “breakdown of the marriage”.  In law, there are only three ways to do this: 

• Prove that your spouse has committed adultery, and also that you did not live together with him or her for more than 90 days after discovering it;
• Prove that your spouse has shown physical or mental cruelty toward you, to the point that continued cohabitation with him or her would be intolerable; or 
• Establish that you and your spouse have lived “separate and apart” for at least one year.

 It seems like a straightforward list.  But the fact is that each of these comes with its own set of embedded issues and challenges.

 

Proving Adultery

For example:  If you are relying on your spouse’s adultery to get a divorce, it’s not enough to simply say that it happened, or that you think it happened.  Rather – and unless your spouse admits to it – you have to provide the court with some credible proof. As we recently wrote in another Blog on how adultery affects divorce under Canadian law, getting this evidence can be a difficult, sensitive, and emotionally-painful task, and one that your cheating spouse is unlikely to cooperate with. 

Establishing Physical or Mental Cruelty

Likewise, establishing mental or physical cruelty comes with its own set of hurdles. Our previous Blog titled “The Canadian Law on “Family Violence” – It’s There to Help You” talks in depth about Family Violence.  It emphasizes how difficult, fraught, and unsafe the home atmosphere can be for those victims who have to live with this particular form of abuse. If you want to move forward by relying on physical or mental cruelty as a basis to get your divorce, then it will mean making certain accusations and getting the right evidence against your abusive spouse – which can be risky and terrifying. 

With this in mind, the most straightforward way to establish grounds for divorce – and the one most Ontario spouses use – is merely to show that there has been a breakdown of your marriage due to a full year of living “separate and apart”.  This avoids having to come forward with intimate and potentially embarrassing details about your relationship. It’s also typically the most cost-efficient way to meet the eligibility requirements, even if it means setting up separate households. 

Living Separate and Apart for One Year

But as we outlined in yet another of our recent Blogs, even this route can give rise to concerns if you and your spouse simply cannot afford to live in separate residences, for financial reasons.  This can leave you in the difficult position of being legally “separated” while still living under the same roof for all or part of that one-year eligibility period. This raises whole new legal issues, around how to meet the eligibility standard even though you are not living in different homes.

Practical Considerations

The bottom line is that there are several legislated grounds for getting a divorce in Canada, and they each come with their own unique issues. If you are intent on qualifying for a divorce, it’s always a good idea to talk to an experienced Family lawyer, to make sure you are properly meeting the eligibility requirement set by law.