Hello, my name is Daphna Schwartz of the Feldstein Family Law Group. Today, I would like to speak about the "Grounds to Obtain a Divorce Order".
In order to bring a court application for divorce, you must identify the "ground" on which you are seeking the divorce. Essentially, the term “ground” for divorce is the reason why the courts will grant a divorce.
In Canada, there are three grounds for divorce:
- cruelty,
- adultery, and
- separation.
Cruelty is defined when one spouse treats the other with physical or mental cruelty of such kind that the spouses are no longer able to live together. This means that mere incompatibility does not amount to cruelty. For example, if your spouse were to call you names on occasion, this would likely not be considered cruelty. However, if your spouse constantly calls you names or abuses you in other ways, this may be considered cruelty.
The ground of Adultery is when one spouse has an affair. The spouse that has the affair cannot apply under this ground, nor can a joint application for adultery be made. Further, suspicion is not enough to prove adultery. A judge must infer from the evidence that adultery in fact occurred. Proving adultery can be difficult because section 10 of the Ontario Evidence Act states that no witness should be asked or bound to answer any question that may show that he or she is guilty of adultery.
The ground of Separation is defined as the parties living separate and apart for a period of at least one year. Separate and apart does not necessarily mean living in separated houses. It can mean living separate and apart, under the same roof, in other ways, such as not having meals together, not attending social events together, or sleeping in separate bedrooms.
Separation is the most commonly used ground for divorce. This is due to the fact that the grounds of Cruelty and Adultery may be difficult to prove.
Remember, even if you have grounds for divorce, the courts may refuse to grant the divorce if they are not satisfied with the child support arrangements which are in place.
If you would like to speak with one of our lawyers regarding your family law matter, please feel free to contact us at 905-581-7222 to schedule your initial consultation.
Thank you for watching.
