Divorce

As of 2005, the Civil Marriage Act marriage is defined as a lawful union between “two persons”. In addition, the Civil Marriage Act amended the language of the Divorce Act to reflect the gender-neutral term. Thus, extending the civil protection of marriage and divorce to same-sex couples, who were not previously protected.

An important note is that on March 1, 2021, the terms custody and access were amended in all legislation related to children and are now replaced with decision-making responsibility and parenting time. 

Under the Divorce Act, there are three types of proceeding, which can be brought by one or both spouses: 

• Divorce proceedings;
• Corollary relief proceedings; and 
• Variation proceedings.

Under divorce proceedings, the party(s) can seek a divorce alone or together with support orders and custody arrangements (decision-making responsibility). Another change that came with the amendments on March 2021 is the creation of a new order, called a “parenting order,” and includes both decision-making responsibility (custody) and/or parenting time (access). 

With corollary relief proceedings, the party(s) seek an order other than divorce, such as parenting orders or support orders, which allows the parties to then divorce at an earlier stage and deal with the corollary issue at a later date. 

Variation proceedings are when the party(s) seek to vary an original agreement through a variation order. Variation orders can alter, suspend, or rescind parenting orders or any provision thereof.

To qualify for a divorce proceeding in Canada, one or both spouses need to be ordinary resident(s) in a Canadian province for a period of one year. If this is not the case, the court will be unable to entertain the proceedings. The definition of “ordinary resident” is whether that person is a habitual residence in the province the proceeding is commenced. The test to ensure that you qualify as an ordinary resident is to consider “where is your real home?” If the answer is Ontario, then you will qualify as an ordinary resident of Ontario!

The only grounds for divorce in Canada is the breakdown of the marriage, which can be established in one of three ways:

1. The first way is where the spouses must be living separate and apart for a continuous period of one year. If the couple reconciles for a period of more than 90 days and then separates for a second time, the couple will have to wait a year from the second separation date to file. If the reconciliation is for less than 90 days, then the original separation date is not interpreted.
2. The second is where adultery is pleaded. In this instance, the person with whom the spouse committed adultery does not need to be named. However, there are some instances where it could be appropriate to serve that person. 
3. Finally, the third way is if one spouse has treated the other in a way that makes it impossible for that spouse to continue cohabiting with their abusive party. Such domestic violence can include mental abuse, physical abuse or cruelty. 

To obtain a divorce, parties must ensure that there are no bars or obstacles to the divorce.

The Divorce Act sets out the following bars:

1. Collusion or conspiracy – this can take the form of an agreement where the applicants attempt to undermine the administration of justice by fabricating or hiding evidence with the intention to deceive the courts. A typical example of this is the dissolution of marriage from an immigration scheme. 
2. If there is no reasonable arrangement for support of children, the granting of divorce will be stayed.  Ideally, the court prefers some form of writing arrangement made. However, the absence of a written arrangement will not preclude parties from being granted a divorce. 
3. Where adultery is pleaded on the breakdown of marriage, and there is evidence that the wronged spouse condoned or colluded in the circumstances, the application must be dismissed.  The Divorce Act does not explicitly define colluded or connived, but case law has provided the following definition; “corrupt intention by a spouse of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.”

Why Choose Us?

At Bickhram Litigation, we understand that divorce is challenging and emotionally draining. Our lawyers have a great deal of experience helping clients bring divorce applications and proceedings. We provide sound legal advice and the support you need to make this challenging time a little less strenuous for all our clients. For more information on Divorce proceedings and litigation, please get in touch with us for a complimentary consultation.