Many details may need to be worked out before a divorce is granted

By Tony Poland, LegalMatters Staff • Divorce is the final step to ending a marriage and whether the process will be simple or complicated will depend on the circumstances, says Toronto family lawyer A. Julia P. Tremain.

“I have had many clients contact me saying they want to get a divorce. They are legally married and they want to sever the relationship,” says Tremain, a partner with Waddell Phillips Professional Corporation. “But generally, the divorce is the last thing that happens because there can be so many details to sort out first.”

She tells LegalMattersCanada.ca that Canada has no-fault divorce. Under the Divorce Act, the only ground for granting a divorce is marriage breakdown. 

According to the Act, there are three ways to demonstrate your marriage has broken down:

• You and your spouse have been living apart for at least one year.
• Your spouse has committed adultery.
• Your spouse has been physically or mentally cruel.

‘The ground almost everybody uses is separation for a year’

“The ground almost everybody uses is separation for a year,” says Tremain. “The reason for that is pretty straightforward. If you are seeking a divorce on the grounds of adultery or cruelty you actually have to prove it. That is not always a simple matter.  

“You need to have a trial. You must have proof and lead evidence. You would have to convince a judge that either one of those grounds applies,” she adds. “One of the biggest challenges is getting a court date, especially in today’s world where we have been dealing with delays caused by the pandemic. By the time you actually get into court, the year deadline would have passed so you would be eligible to file for divorce anyway.”

Trials are expensive and stressful so it makes more sense to wait out the one-year period, Tremain says. 

There are basically two types of divorces in Canada:

Simple or Uncontested: One person files an application for divorce against their spouse in court. If that spouse fails to respond within a specified time, the court will issue a divorce order. This type of divorce is used if no other claims such as support or equalization of property are being made or if a separation agreement is in place.

Contested divorce: In this scenario, one person submits an application for the divorce but the other spouse does not consent to the terms. There could be a disagreement about the division of property or child support. A trial would then be needed to settle the terms of the divorce.

Generally the last piece in the puzzle

Tremain says a divorce declaration is generally the last piece in the puzzle. The first would be working out a separation agreement. However, there are instances where an agreement is not necessary.

“This would apply where you have a young couple who has only been married a short time and have no children, no property, no pensions and no assets. There is nothing to negotiate,” she explains. “A judge could still reject their divorce application to get more information to confirm there are outstanding issues. But typically, they would be granted a divorce.”

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Negotiating the separation agreement “is the far more time-consuming aspect of ending a relationship and it can be quite complicated,” Tremain says.

“That’s the vehicle through which you can decide everything,” she says. “That can include child or spousal support, division of property, equalization payments, and parenting time along with decision making.”

Once a separation agreement is reached it may need court approval before the divorce will be granted. Tremain says.

Judges want to be assured children are cared for

“Judges, at the very least, want to be assured that any children of the marriage have been looked after,” she says.

Tremain says there are times when one spouse will deny the request for a divorce. There could be many reasons, such as wanting more discussion on spousal support or the division of assets.

“They may stall because they want to stay on their spouse’s benefits. If they were to actually get divorced, the person wouldn’t be eligible for those benefits,” she says. “They could also want to maintain access to the matrimonial home.”

For some, ending a relationship can be difficult, Tremain says, and it is not unusual for couples to be legally separated for years before filing for divorce, if ever.

“There is a lot of emotion involved and people sometimes are not quite 100 per cent sure that they want to let go. It is the last nail in the coffin of their relationship,” she says. “Sometimes taking that last step can just be a challenge. People really do have to be ready for it.

“Separation and divorce is a long process and people have to be emotionally prepared for every single step.”