In Ontario, the Ontario Superior Court can grant divorce on one of three grounds:
1. On the basis of separation for a year with no reasonable chance of resuming cohabitation;
2. On the basis of cruelty and
3. On the basis of adultery.
In order to get a divorce on any of these grounds, your spouse has to either admit the grounds (in the case of adultery, the party with whom your spouse committed adultery has to admit it as well) or you have to prove the fact after a trial. Spouses will not admit cruelty because doing so could be admitting facts that give rise to criminal charges or that give rise to tort (personal injury) liability. Spouses usually will not admit adultery because doing so can likewise have legal consequences. In addition, to prove adultery, the other party to adultery has to admit it to, which can have negative repercussions for them. So, to get a divorce on the grounds of cruelty or adultery, a spouse has to prove the cruelty or adultery at a trial. To make it through all the family court steps that lead up to a trial (to find out about them watch this video or listen to this podcast) takes at least a year. And, for the reasons below, you will NOT get priority in a crowded court calendar to have you trial for a divorce on the grounds of adultery or cruelty. So, by the time you get to your trial, you may have already been able to get your divorce on the grounds of separation for a year.
Ontario has a “no fault divorce” system. That means that the reason why you are getting divorced does not affect property division, or child support, or spousal support, or even custody and access unless a spouse’s actions relate to parenting. Having an unnecessary fight over the grounds for a divorce may likely have the unintended consequence of showing a judge that you are a bad parent because you are willing to expose your children to unnecessary conflict. Seeking a divorce on the grounds of adultery or cruelty may actually hurt your custody case. Of course, if your spouse was very, very bad and did something awful like commit adultery or be abusive in front of the kids, that would be an important factor that would affect the custody case, whether you sought the divorce on the basis of adultery or cruelty or not.
All getting a divorce means is that you are free to remarry. Things like custody, access, child support, spousal support and property division are called “corollary issues.” You do not have to wait a year to ask a court to deal with the corollary issues. A court can deal with parenting issues, or support issues, and even some property issues, right after you separate. If you are particularly good resolving matters, then all the corollary issues may be finished in less than a year and you just have to wait the year to get the divorce.
However, for a court to have the jurisdiction to deal with custody, access or support under the Divorce Act, one of the parties must have lived in the same municipality as the court for at least a year. You cannot even start divorce proceedings in Ontario if one of the spouses has not lived in the province for a year. Fortunately, you can ask the court to deal with custody and access under Ontario’s Children’s Law Reform Act, and support under the Family Law Act, right after separation and then wait a year to get the court to make the same orders under the Divorce Act.
If you do not need a court to decide parenting, support or property issues, you can just ask the court to give you an uncontested divorce after you have been separated for a year.
To understand better what getting a divorce means and how you can get one, listen to this podcast. If you are contemplating separating and getting a divorce, you should watch this video to avoid some common mistakes that can really hurt you down the road. Once you have decided to separate, the first steps you should take are discussed in this video, this podcast and on this page.
For even more information about separation and divorce, all the corollary issues surrounding them, and your options for dealing with child custody, access, child support, spousal support, property division and many more family law issues, pick up a copy of this $20, easy-to-understand book on Ontario Family Law. It also includes a number of tips to help you succeed and get what you want in your divorce.
It is always best to get advice that is specific to your situation, particularly from a good Ontario Divorce Lawyer who will give you direct advice immediately. Little facts can make big differences in family law, so booking a consultation with a lawyer is almost always well worth the cost. For more help on this topic or any other Family Law related question please contact John Schuman who is a Certified Specialist in Family Law.