When a marriage ends, spouses need to know about the divorce process and how to file divorce papers. Canada’s Divorce Act applies to spouses who want to get divorced in BC and sets out the conditions for obtaining a divorce order. Here is what you need to know about the grounds for divorce in BC.
Breakdown of a marriage must be established
To get divorced in BC, an application must be brought in the Supreme Court. The court can only grant a divorce if one or both spouses lived in BC for at least one year and the court is satisfied that the marriage has broken down. Sections 8(1) and (2) of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp) set out the ways that “breakdown of a marriage” can be established:
8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Living separate and apart for at least one year, adultery, and cruelty are often referred to as the three recognized grounds for divorce, but that is not strictly correct. There is really only one ground for divorce in Canada—marriage breakdown. The law gives no preference to any recognized grounds of divorce over any other, and if any of the indicators of marriage breakdown set out in the Divorce Act exist, the divorce ought to be granted provided the Judge is satisfied with the evidence produced.
What is “no-fault” divorce in Canada?
Technically speaking, the only ground for a divorce under Canada’s Divorce Act is marriage breakdown. The references in section 8(2) of the Divorce Act to one-year separation, adultery, and cruelty are only alternate factual circumstances by which a marriage breakdown can be proved. The distinction is a subtle but important one. The clear trend of the law in divorce proceedings is to remove considerations of fault wherever possible. Canada has “no-fault” divorce, which can be granted after one year of separation. Where there is no dispute on the pleadings that the spouses have lived separate and apart for more than one year, any evidence of adultery or cruelty (“fault-based” divorce) will be unnecessary.
Divorce in Canada: How long does it take?
Most spouses in BC apply for a no fault divorce on the basis of living separate and apart for one year. This is usually the quickest and least expensive way to obtain a divorce and it is also the least contentious way to establish marriage breakdown. Allegations that a spouse committed adultery or treated the other spouse with cruelty are likely to increase hostility and make other issues more difficult to resolve. It typically takes a year to bring a contested divorce to trial (i.e. a fault based divorce), and by that point the divorce could be granted on the ground of one-year separation.
Spouses who apply for divorce on the basis of a one year separation can live together for up to 90 days (either before or after the divorce application is filed) to try to reconcile. If things do not work out, the spouses can continue their action for divorce as if they had not spent the time together. For many spouses it is straightforward to determine the date of separation and eligibility for divorce. Spouses can also separate but still live in the same house. There are certain factors the courts consider when are deciding if spouses are separated while living under the same roof. It is recommended that spouses talk to an experienced divorce lawyer to find out more if this situation applies to them.
Why is it so hard to get divorced on the basis of cruelty or adultery?
The recent trend in family law is that allegations of cruelty and adultery should be avoided whenever the divorce can be based on living separate and apart for one year. Applying for a divorce on the basis of adultery or mental or physical cruelty that has made living together impossible or intolerable (i.e. “fault-based” divorce) can make the divorce process lengthier and more adversarial. It often takes more time to resolve than the one year of living separate and apart to satisfy the “no-fault” basis of establishing marriage breakdown.
Findings of adultery or cruelty bear stigma and are highly emotional issues for the parties. The spouse who alleges cruelty or adultery must provide evidence to prove the allegations on a balance of probabilities. Costs can be awarded against a spouse who unnecessarily advances a claim for adultery or cruelty on weak evidence or who persists in alleging adultery or cruelty if a no fault divorce could have been obtained.
Talk to an experienced divorce lawyer for help with the divorce filing process
If you need advice from a BC divorce lawyer with respect to the divorce filing process, contact Valerie M. Little Family Law Corporation. Ms. Little's practice is exclusively devoted to issues of family law in the Metro Vancouver areas.
No matter what family law questions or issues you might be facing, Valerie is experienced and approachable and able to provide you with solid legal advice to help you move forward with your life. If you would like to find out how to solve your family law issues, contact Valerie’s office by phone at 604-526-3333 or complete the contact us form to schedule your personalized family law consultation. Call today.