On What Grounds May I Obtain a Divorce in Canada?
Under Canada’s Divorce Act, there are three legal grounds upon which a divorce may be granted. All three fall under the umbrella of “breakdown of the marriage”:
- Living separate and apart for at least one year immediately prior to the divorce hearing;
- Adultery by the other spouse; or
- Physical or mental cruelty by the other spouse that makes continued cohabitation intolerable.
1. Living Separate and Apart
The most common ground for divorce in Canada is living separate and apart for one year. This ground does not require proof of fault by either spouse.
Although a divorce proceeding may be commenced at any time after separation, even after just one day, the court will not grant the divorce order until at least one year of separation has passed.
Importantly, physical separation of households is not legally required. Spouses may be considered “separate and apart” even if they continue living under the same roof. This is typically demonstrated by factors such as:
- Using separate bedrooms or sleeping arrangements;
- No longer performing household services for one another (e.g., cooking or laundry);
- Ceasing to socialize together as a couple; and
- Presenting themselves publicly as separated.
In some cases, particularly where children are involved, continuing to live in the same home may be practical or necessary. A clear statement of intent to separate, such as a written notice or email—can help establish the separation date.
2. Adultery
Adultery is another ground for divorce, but it carries a higher evidentiary burden. Allegations alone are not sufficient; there must be credible proof of actual sexual intercourse with a person other than one’s spouse.
In some cases, the alleged adulterer admits to the affair. However, under the Canada Evidence Act, they must waive their protection against self-incrimination in order to testify about their own adultery.
Given the difficulty of proving adultery, many spouses choose to proceed under the one-year separation ground, even if adultery has occurred.
3. Physical or Mental Cruelty
Cruelty refers to behaviour that makes continued cohabitation intolerable. It must go beyond ordinary marital discord. Examples may include:
- Serious physical assaults;
- A persistent regime of fear or intimidation;
- Severe emotional or psychological abuse, often supported by expert evidence from mental health professionals or abuse support agencies;
- Substance abuse (alcohol or drugs) that creates a harmful and dangerous environment.
As with adultery, proving cruelty often requires significant evidence, which is why many individuals also rely on the one-year separation ground. However, cruelty may be pleaded strategically in cases involving issues such as exclusive possession of the matrimonial home or custody and parenting arrangements.
Additional Considerations: Property Division and Separation Date
Selecting an accurate separation date is critical. This date is used to:
- Value assets and liabilities for property division;
- Calculate Net Family Property (the difference between a spouse’s assets at date of separation and date of marriage); and
- Determine any equalization payment between spouses to fairly divide the matrimonial property.
The legal and financial consequences of this date can be significant, particularly where real estate, businesses, or other substantial assets are involved.
Legal Guidance and Support
Understanding the legal grounds for divorce and the implications of your separation date is essential for protecting your rights and ensuring a fair resolution. Speaking with an experienced family law lawyer can help you navigate the process, gather the necessary evidence, and make informed decisions about property, support, and parenting arrangements.
