What are grounds for a divorce?
A spouse can ask for a divorce in Ontario if there has been a “breakdown of marriage.” To establish that there has been a “breakdown in the marriage” a spouse must satisfy a court that any one of the following three things has happened:
- The married couple has been living separate and apart for at least one year immediately prior to a judge awarding a divorce judgment and are living separate and apart at the commencement of divorce proceedings
- The other spouse has committed adultery
- The other spouse has treated the spouse with physical or mental cruelty so as to make it intolerable for the spouses to cohabit
The most commonly cited ground for divorce is that spouses have been living separate and apart for at least one year prior to the hearing of an application for divorce.
Do both spouses have to agree to a divorce?
No. The intention to divorce does not need to be a mutual decision between spouses. One spouse can decide to divorce the other spouse without their consent. All the deciding spouse has to do is “desert” (i.e. leave) the other spouse for at least one year.
In order to “desert” the other spouse, the other spouse must demonstrate that they do not want to be married to the other spouse. The spouse who decides they want a divorce can prove to the Court they have deserted the other spouse through the following means:
- Breaking off communication with the other spouse
- Continuously eating meals without the other spouse
- Continuously refusing to participate in social activities with the other spouse
- Continuously sleeping in a separate bedroom without the other spouse
- Breaking off sexual relations with the other spouse
Who can file for divorce in Ontario?
Either spouse can file an application for divorce naming the other spouse as the responding party. Keep in mind that the application must cite one of the three aforementioned grounds for divorce to be successful.
If both spouses agree to a divorce the spouses can file a joint application for divorce, commonly referred to as an uncontested divorce.
What is an uncontested divorce?
An uncontested divorce is a situation where both spouses mutually agree to file an application for divorce. The application for divorce must state the grounds for the divorce and must set out how the spouses have decided to divide the marital property. It must also include who if either spouse is entitled to spousal support, and if there were any children born during the marriage, which parent will have custody and who will have access to the child or children and when.
When can I file for a divorce?
Either spouse can file for a divorce at any point in time after the parties have separated. However a court will not grant a divorce order until the parties have been living separate and apart for at least one calendar year.
Can I apply for a divorce in Ontario if I have not been regularly living in Ontario for at least one year?
No. In order to be eligible to apply for a divorce in the Province of Ontario, either of the spouses must have lived in the Province of Ontario for at least one year prior to making an application for divorce.
The same rules apply to people who immigrate to Canada and choose to live in Ontario. Until you have lived in Ontario for at least one year, you can not apply for a divorce in Ontario.
When does a divorce order take effect?
Spouses are legally considered to be divorced 31 days after the date on which the divorce order was issued.
When am I free to remarry again?
Either spouse is free to remarry 31 days from the date the divorce order is issued.
For more information, please contact:
Shawyer Family Law
504-2300 Dufferin Street
Toronto, ON M6A 3B2
416-398-4044 ext 25