Marriage breakdown can be one reason a divorce may be granted in Canada and specifically in Ontario. Section 8 of the Divorce Act, provides that on application, by either or both parties, a court may grant a divorce on the ground that there has been a breakdown of their marriage. The section further states the following with respect to the establishment of a breakdown of the marriage as:
Section 8(2)(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.
Separate and apart can still entail parties living under the same roof, provided that they have commenced living independently from one another while sharing accommodations. As per the case Cooper v Cooper, the Judge found that a couple living under the same roof could be living separate and apart establishing 6 possible scenarios that must stand or fall on its own merits:
- Separate Bedrooms
- Meals eaten separately
- No sexual relations
- Not providing domestic services
- Lack of communication
- No social activities together
Adultery or Cruelty as Other Grounds for Divorce
The section goes further as additional means of establishing a breakdown of a marriage as the committal of adultery or the treatment of the other party with physical or mental cruelty to the extent that the continued cohabitation of the parties are rendered intolerable. For parties to be deemed to have lived separate, they must have done so for a period of at least a year, and both physical separation and intention to end the marriage must co-exist for this period of time.
In the event that adultery and or cruelty serve as a proof of a breakdown of the marriage, the party that was the subject of adultery or cruelty could apply to court to reduce the 12 month period of separation required for the issuanc of a divorce Order in Ontario. Adultery or cruelty as a ground for divorce is only available to the innocent party. There is no statutory definition for adultery, but the traditional definition of a party having voluntary sex with another individual other than their spouse I acknowledged through caselaw. For cruelty, once again there is no exact definition, however there is much case law which has generally defined it as inflicting suffering to delight in, or exhibit indifference to the pain of others, merciless, or hard heartedness as manifested by conduct as per the case Knoll v. Knoll.
To learn more about your rights upon the marriage breakdown, call us to speak to one of our Toronto Divorce Lawyers today.
Written by: Christopher Rio Mortel , Associate Lawyer at Separy Law PC.