In Canada, divorce, or more accurately, “grounds or conditions for divorce”, can be divided into two types:
- No-fault divorce
- Both parties need to be separated for one year or more
- Fault divorce. Here, “fault” can be of two types:
- One spouse has an affair
- One spouse abuses the other or is “too cruel”
In “no-fault divorce”, here are the criteria for the one-year separation. During the year of separation, the parties can do:
- At any time, one can file for divorce; there is no need to wait until the end of the one year to apply
- But the divorce certificate cannot be obtained until a one-year separation
- It can be either party applying, or both parties applying the divorce
- One can apply for temporary “child support” and “spousal support”, and the court will approve or disapprove as appropriate.
In “fault divorce”:
- There is no need for a one-year separation period
- Only the “victim” party can file for divorce
First, let’s talk about the “affair” situation in “fault divorce”, the legal requirements for this are quite clear:
- s.8(2)(b)(i) provides that the affair needs to be “adultery”. Although the law does not define “adultery”, case law gives a definition, which is simple: voluntarily having sexual relations with someone outside of marriage. And as to the “sexual relations”, the laws are very detailed:
- Mental relations do not count
- Same-sex affairs count SEP v DDP
- Masturbation and foreplay that fall short of penetration have been held to not constitute adultery, though may be used to infer adultery has taken place Sapsford v Sapsford
- Full and complete intercourse is not required to prove; partial penetration will suffice Thompson v Thompson
- The judiciary divided on whether artificial insemination counts Orford v Orford
- In terms of “evidence”, for example, if the husband has an affair, then it can be:
- The husband’s admission under oath, or
- Substantial evidence the wife has, or
- Wife’s evidence of husband’s out-of-court admission
But in the “cruelty” situation in “fault divorce”, the law is much more vague. The s.8(2)(b)(ii) Divorce Act provides: treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses, but how to count as “cruelty”, here are some explanations:
- First, case law says: it is impossible to categorize particular types of conduct as constituting mental/physical cruelty Re Tremaine
- Then, cruelty in question of fact and degree are to be determined on fact and case-by-case basis Stevens v Stevens
- The test of cruelty is largely subjective – is “this conduct by this man towards this woman cruel?” Launder v Lauder
- Divorce can be granted on mutual cruelty Krause v Krause
- Danger to life, limb, or health is not a prerequisite to finding cruelty, the conduct complained of in the divorce petition must be grave and weighty; it must go beyond the incompatibility of temperament between spouses Zalensky v Zalensk
- It is not necessary that the cruel spouse act with culpable intention; the impact of the alleged conduct on the victim is far more important Gollins v Gollins
- It is immaterial whether the conduct was deliberately aimed at the petitioner or due to unwarranted indifference Goldstein v Goldstein
- The court will regard the cumulative effect of the conduct on the petitioner; the cumulative effect may constitute cruelty, although each individual incident standing alone would not Knoll v Knoll
- it is for the court and not the petitioner to determine whether the conduct is sufficiently grave to warrant dissolution of marriage Lake v Lake
- The following behaviours can be considered abuse:
- Domineering or demeaning conduct if of sufficient gravity Ratcliffe v Ratcliff
- False accusations of infidelity Chorney v Chorney
- Habitual drinking, drug-taking or gambling is only cruel if has a detrimental impact on the spouse and makes cohabitation intolerable Kulyk v Kulyk
- Husband’s addiction to work that amounts to neglect of wife and child(ren) although the court may decline to find when the wife did not complain of conduct until the last stage of marriage and conduct has been present throughout Mark v Mark
- Refusal to work and support family could be cruelty Durant v Durant
- The following behaviours are not considered abuse:
- Differences of opinion or verbal squabbles, even if accompanied by gross or vulgar language R v R
- Continually being absent from home Turnbull v Turnbull
- Inattentiveness or insensitivity is simply a manifestation of a spouse’s personality faults Cavalier v Cavalier
- Mere estrangement of the spouses or a breakdown of marriage arising from incompatibility of temperament between spouses is not sufficient for cruelty Takenaka v Takenaka
At last, when one party thinks they are the victim and wants to divorce for this reason, if they cannot or find it difficult to prove the spouse’s “fault”, they can always at least separate for one year and achieve their goal with “no-fault divorce”.
