Ontario Divorce Law: Getting Clarity
The Divorce Act, R.S.C. 1985, c. 3 sets out the procedure for terminating a legal marriage.
A divorce is not necessary for couples who want to terminate their relationship since they may simply choose to split and enter into a separation agreement. It’s only necessary if one of the individuals wishes to re-marry, at which point he or she must obtain a formal divorce judgment—and a final certificate attesting to it—from the court.
Our Ontario divorce attorneys at DivorceLawyers.ca Professional Corporation can assist you with this procedure. We service the entire province of Ontario, including Markham, Mississauga, Oakville, and Vaughan.
Divorce in Canada: An applicant’s guide
When a marriage “breaks down,” either of the spouses or both, may submit an application for divorce under s. 8(1) of the Act. The application may be filed in one of four ways:
- The Superior Court of Justice, or
- The unified Family Court.
In such circumstances, the courts with concurrent jurisdiction to hear and resolve a divorce case are:
One-Year Separation
The most frequent and simplest method to get divorced is to go through a one-year separation. This part covers the situation in which the couples have been living separate and apart for at least 12 months with no indication of future cohabitation or reunification. Although this does not necessitate that they wait a year before bringing an application, it does imply
Spouses who live under the same roof but are separated for a year or more are entitled to divorce on the ground of a one-year separation. The following things might be taken into account:
- A physical barrier must be maintained. A solid barrier does not negate the necessity for a physical gap, especially if the spouse is remaining in order to satisfy financial need.
- To be successful, a divorce must take place when one or both spouses intend to terminate the marital relationship or disavow their marital obligations.
- It’s not clear whether the lack of sexual contact is definitive, but it should be considered.
- The focus on family difficulties and communication between spouses.
- The presence or absence of joint social activities.
- The meal pattern.
- Another element to consider is the performance of household chores, and when it comes to matters that are specific to marriage, weight should be given.
- In interpreting the doctrine of mutual mistake, the court must take into account a spouse’s actual goal rather than the spouse’s stated objective. Whether or not a spouse has filed income tax returns as “separated” or “married” is also considered when determining a spouse’s real intent vs. that person’s declared intentions.
Divorce & Adultery
Adultery is the next ground for divorce, which is when a married person has consensual sexual intercourse with someone other than his or her spouse. This definition now covers intimate homosexual relationships. The only way to apply s. 8(2)(b)(i) is if you are the victim of adultery. A person cannot divorce his or her spouse on the basis of their own infidelity. If you can show the court that your spouse has committed adultery against you, the court may grant a fast divorce and waive the one-year separation period.
Adultery is difficult to prove, as demonstrated by the fact that all evidence submitted to the court is circumstantial.
When making a claim of adultery, the law states that the claimant must do so on the balance of probability.:
- The commission of adultery (slight evidence of opportunity standing alone is insufficient); and
- A signed confession of adultery. This must be more than simply a close friendship with someone of the opposite sex, and evidence of overall reputation is not permitted.
Divorce & Cruelty
Cruelty is the third ground demonstrating “the breakdown of a marriage.” If you can show the court that your spouse has been cruel to you during your marriage, the court may be able to grant you an immediate divorce and waive the one-year separation period.
When determining whether or not a spouse has been cruelly treated, the factors established in a 1970 Ontario Court of Appeal decision should be considered. A spouse who, by his or her act, causes wanton, malicious, or unnecessary pain or suffering to the body, feelings, or emotions of the other can be convicted of cruelty. A subjective test is one in which the most significant factor is the influence of the conduct on the spouse’s mind. Essentially, it appears that the deterioration of either the mental or physical health of the afflicted spouse is a necessary element in establishing cruelty.
The court went on to state that the conduct alleged must be of a ‘serious and significant nature, as opposed to trivial. It is impossible to maintain a marital relationship when one or both spouses have irreconcilable differences in temperament. The entire marital relationship must be evaluated, especially if the abuse consists of taunts, complaints, accusations, or continual carping criticism. Furthermore, a 1971 ruling by the Saskatchewan Court of Appeal held that isolated incidents that are not themselves cruel may constitute cruelty when they are part of an ongoing pattern of conduct with a cumulative effect of making cohabitation impossible.
The following are some examples of conduct that the court has interpreted as cruel for the purposes of s. 8(2)(b)(ii):
- An attack may have been a single assault that was both violent and severe, or it might have been a string of attacks.
- Name-calling, for example, if it were persistent and abusive.
How Can An Attorney Help You With Your Divorce?
We realize how difficult and distressing a divorce can be. Having an experienced lawyer on your side at this time is critical in providing you with the legal assistance and guidance you require during this trying period.
Your attorney can assist you with the following, and more:
- Marital assets
- Property division
- Debt repayments
- Child custody
- Spousal support and other benefits
A divorce lawyer may assist you by:
- Legal advice will be given to you: Your attorney will be able to give you with the legal information you require about your divorce and assist and advise you throughout each stage of the procedure. Knowing the reasons for divorce is critical for making sure you know your alternatives and rights. Your lawyer will be able to answer any questions you have and give you objective legal counsel on the most effective next actions for your scenario.
- Taking care of paperwork: Filing for divorce entails a significant amount of paperwork. Mistakes while filling out your paperwork may end up costing you both time and money. Your lawyer will be able to take care of all the complicated paperwork for you, ensure that you have all you need, and make sure everything arrives at its proper destination on time.
- Collecting necessary records: It’s critical to keep track of your assets and liabilities so that your divorce can properly account for them.
- Supporting you: Your attorney is your most powerful advocate. Having an experienced lawyer at your side during this trying time can truly assist you in simplifying the process and giving you emotional support and encouragement that you require.
- Effectively negotiating a settlement: A divorce attorney will be able to effectively negotiate a divorce settlement in regard to the marital estate.
- Fiercely representing you in court: Your lawyer will be able to effectively represent you and advocate for you in the courtroom, in the case that your divorce case gets taken to court. Going to court may be required if you have a dispute regarding spousal support or child custody. Your lawyer is your most powerful ally and will make sure that all legal measures are taken to assist you safeguard your rights and future.
Don’t go through a divorce on your own; let our Ontario divorce lawyers assist you in making the process as easy and stress-free as possible. Divorce is a difficult time for anybody, and having a lawyer by your side to help you maintain legal separation while protecting and advising you throughout the procedure is quite essential. Contact our team of attorneys today for a free consultation, and to learn more about how we can help you.
Do You Require the Assistance of a Divorce Lawyer in Ontario? Meet Our Team!
Our team of divorce lawyers has years of combined experience assisting families and individuals going through a divorce. Lawyer can help you figure out what your options are and aid you in making important decisions, including the choice to relocate.
