What do you need to prove in order to get a divorce?

In order to get a divorce in Canada, a spouse has to prove that there has been a breakdown of the marriage. You can prove this in three ways:

  1. Living separate and apart for at least one year when the divorce case was started;
  2. Proving that your spouse has committed adultery; or
  3. Proving that your spouse has treated you with physical or mental cruelty of such kind that continuing to live together would be intolerable.

You only need to prove one of these to get a divorce. There generally isn’t a reason to try to prove more than one of these. The vast majority of divorces proceed on the basis that the spouses have been living separate and apart for at least one year.

Divorce in Canada is “no fault”. This means that adultery and cruelty are generally only relevant for proving that the marriage has broken down. Adultery and cruelty are generally not relevant for division of property, spousal support, child support and parenting arrangements. Sections 15.2(5) and 16(9) of the Divorce Act specifically tell the court not to consider a spouse’s misconduct when making an order for spousal support or custody. Part 5 of the Family Law Act, which deals with property division, does not allow the court to apportion family property differently based on a spouse’s misconduct. As a result, there is no penalty for committing adultery or cruelty. A person does not get a “bonus” for being able to prove that their spouse had an affair or was cruel.

What does it mean to be living “separate and apart” for at least one year?

According to section 8(3)(a) of the Divorce Act, spouses are living “separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other.” In other words, there needs to be some kind of physical separation, and at least one of the spouses must intend to end the relationship. The amount of physical separation required seems to be very little: spouses can be living separate and apart but in the same household as long as they are leading separate lives.

If there is a dispute about the date of separation, the court will look at the facts before and after the alleged date of separation, and consider the following questions (from Charan v. Charan, 2018 BCSC 1537 at para. 45):

  1. Did at least one spouse have the intention to separate?
  2. Was the intention to separate communicated to the other spouse?
  3. Was the intention to separate acted upon? In other words, using generally accepted characteristics or marriage, did one or both spouses take action that is consistent with the separation, such as:
    1. changing how they behaved with each other in public; and
    2. changing how they behaved with each other in private.

Once you are separated, the clock starts ticking toward the one year you need for a divorce. There is no need to “crystalize” the separation, or “make the separation legal”. There is no agreement, official document, declaration or court order that you need to become “legally separated”. If spouses have physically separated (even if living under the same roof), and at least one of them intends to end the relationship, then they are separated.

Can I start a divorce proceeding before the one-year period is up?

You can start a divorce proceeding before the one-year period is up. You do not need to wait. There is no penalty for starting early, and no bonus for waiting until the one-year period is up. Sometimes people ask me if it makes a “bad impression” with the judge to start your divorce case early. It does not. In my experience, it is very common for people to start a divorce proceeding before the one-year period of separation is completed.

Generally, you should consult a lawyer and start thinking about the legal issues arising from your separation very soon after separation. Waiting a year before addressing issues such as division of property, division of debt, spousal support and child support might make those issues more difficult to deal with. On the other hand, there may be strategic reasons why you want to wait before starting divorce proceedings. A lawyer can help you understand whether it is better for you to start your case early or wait until later.

What happens if spouses try to reconcile after separating?

Section 8(3)(b)(ii) of the Divorce Act allows spouses to resume cohabitation for up to 90 days for the primary purpose of reconciliation without interrupting their period of separation. The purpose of section 8(3)(b)(ii) is to try to encourage spouses to reconcile; but, if the reconciliation is unsuccessful, the divorce is not delayed.

The court also has the power to put the case on hold while spouses attempt to reconcile. Section 10 of the Divorce Act imposes a duty on judges to make sure that there is no possibility of reconciliation before granting a divorce. Section 10(2) says that if the judge finds “from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses” then the judge must adjourn the proceeding to give the spouses a chance to reconcile. With the consent of the spouses, the court can also nominate a person to provide them marriage counselling or guidance, or “some other suitable person” to help the spouses try to reconcile.

If a spouse asks the court to adjourn so that spouses can attempt to reconcile, then the judge will look at “the nature of the case, and the evidence or attitude or either or both spouses” to decide if there is a possibility of reconciliation: Pires v. Pires, 2006 BCCA 137

Adultery and Cruelty

Adultery and cruelty are so rarely claimed as the basis for divorce that I will not discuss them in detail.

Adultery must have been committed during the parties’ marriage. Adultery committed before the parties were married cannot be used to prove a breakdown of the marriage.

The kind of cruelty that is sufficient to grant a divorce is is discussed in the case of Zunti v. Zunti, 1970 CanLII 849 (BC CA) Asking for a divorce on the basis of cruelty is even rarer than asking for a divorce on the basis of adultery. I haven’t seen a divorce on the basis of cruelty in years, and I can’t remember any of my clients asking for a divorce on the basis of cruelty.

You should not claim a divorce on the basis of adultery or cruelty unless you have a very good reason to do so. Dealing with these issues can increase legal costs. Your spouse may want to defend themselves against each of the allegations that you make, which requires more time in court, more evidence being presented, and more argument from lawyers. Allegations of adultery or cruelty can also make a bad impression with the judge hearing the case. Since our divorce law is “no fault”, our courts are simply not in the business of punishing and stigmatizing spouses for sins committed during their marriage. A judge might see evidence of adultery or cruelty as an unpleasant waste of time and money.

In addition, allegations of adultery and cruelty are embarrassing and inflammatory. Making those allegations can make a case much more difficult to settle without a trial.

Do I need my spouse’s consent to divorce under the Divorce Act? What happens if they do not consent to a divorce?

You do not need your spouse’s consent to divorce. Living separate and apart only requires one spouse to intend to end the relationship. If spouses have been living separate and apart for at least one year, there is no way to stop the divorce.

There is no “bonus” if both spouses consent to the divorce, and there is no “penalty” if only one spouse wants a divorce. Whether both spouses want to divorce has no effect on how property is divided, the amount of spousal support awarded, or any other legal issue in the divorce. There is no need to offer a “signing bonus” to get a spouse to agree to a divorce.

Why do I sometimes read about terms like “irreconcilable differences” in newspapers?

Other countries have different divorce laws. You might have heard terms before such as “unreasonable behavior”, “abandonment”, “desertion”, or “irreconcilable differences” in newspapers about celebrities getting divorced in other countries. These terms do not mean anything in Canadian law. In Canada, divorces generally proceed on the basis that the parties have lived separate and apart for a year. Whether their behaviour is “unreasonable”, whether they “abandoned” or “deserted” their families, etc. has no bearing on whether a Canadian couple can get a divorce.