Written by: Naa Lansana
The Divorce Act articulates the ground for divorce as a breakdown of a marriage. This collapse of the marital relationship can occur in three ways:
- Firstly, if the spouses have lived separate and apart for at least one year immediately prior to the determination of the proceeding, and continue to do so at that time, then a divorce ruling can be rendered;
- As well, divorce can be granted on the basis of adultery; and
- Last but not least, as a result of one spouse treating the other with physical or mental cruelty of such a kind as to render the continued cohabitation of the spouses intolerable.
More often than not, divorce in Ontario is granted on the first basis, as ascertaining the existence of the latter two enumerated bases can prove challenging and/or time consuming. For instance, when it comes to the issue of cruelty, it is not only the presence of the act that has to be established, and if mental cruelty is at play, the subjectivity of the situation may present difficulties. Even where cruelty has been established, a determination has to be made as to whether it is unbearable for the spouses to continue to cohabitate. This is not to conclude that it is impossible to divorce on the basis of cruelty for example. The recent case of P.S.V. v A. B¹ illustrates that with the right evidence in place, a court may grant divorce on this basis. In this case, the husband had been significantly harassed and feared for his safety, and the totality of the evidence led the court to find that the husband’s state of mind as a result of his wife’s behaviour towards him was “subjectively one of acute distress.”² Generally though, even in the face of adultery and cruelty, couples often ply the one year separation route.
Despite initiation of separation, the law provides an opportunity for separated parties to reconcile for up to 90 days without endangering their initial separation date used to calculate their one year separation period. Spouses must however be aware that should an attempt at reconciliation persists beyond the 90 days, the initial separation date is voided. This “grace period” allows separating spouses to attempt to save their marriage, while also permitting the couple to “maintain their place in line” with the divorce process, should attempts at reconciliation fail. Particularly given the high cost of divorce in terms of finances, time, stress, impacts on the children of the marriage, etc., spouses who aim to salvage their union have an opportunity to engage in marital counselling or employ other pertinent strategies, despite divorce looming large.
Separating spouses often want to get divorced rapidly, and frequently inquire as to the feasibility of doing so via a claim of adultery or cruelty. Ultimately though, most realize that the more practical avenue for divorce is to separate for a year. It is worth remembering that an attempt at reconciliation may be feasible within the above stipulated parameter without compromising the divorce, should the latter prove to be inevitable.
¹ 2024 CarswellOnt 3522; 2024 ONSC 1260; 171 O.R. (3d) 797.
² Ibid at para 18.
