Who Can Grant the Divorce?
Divorce in Ontario can only be obtained from the Superior Court of Justice.
There are three preliminary issues with respect to any divorce:
- Does the court have jurisdiction over your divorce;
- What are the grounds for your divorce; and
- Is your divorce contested or uncontested.
In order for the court to have jurisdiction over your divorce, at least one of the spouses must have resided in the territorial jurisdiction of the court for at least one year immediately preceding the divorce application.
Grounds for Divorce
There are three grounds for divorce:
- Separation of spouses without the reasonable possibility of reconciliation for at least one year;
- Adultery; and
In case of separation, all that is required that the spouses no longer cohabit as spouses for 12 months. They may reside under the same roof, yet live separate and apart. While the application for divorce can be commenced before the expiration of the 12-month separation period, the divorce itself will not be granted until the said period is up.
In case of adultery, the spouse applying for divorce can do so based on the other spouse’s infidelity. In this case, you do not have to wait for one year prior to obtaining the divorce, however, you have to prove that the other spouse was unfaithful to you.
Similarly, in the case of cruelty, you do not have to wait for one year before the divorce is granted, but you have to show that your spouse treated you with physical or emotional cruelty.
In my practice, separation is the most frequent ground for divorce.
Contested vs Uncontested
Whether the divorce is contested or uncontested is a very important matter which dictates the anticipated length of the court proceeding and the amount of money to be spent on legal costs. Many people think that the other spouse must consent to the divorce, otherwise, it will necessarily be contested. The truth is that once one of the parties applies for divorce based on one of the valid grounds, it will be granted whether the other party wants it or not. What makes divorce proceedings contested or uncontested are other issues involved apart from the divorce itself including custody of and access to the children, child, and spousal support, equalization of property, etc.
If the parties are able to resolve all such issues arising out of their marriage amicably, by way of a separation agreement, then the divorce can proceed on an uncontested basis and even though it is granted by the Court, in most cases it can be obtained by your lawyer without the need of any court appearances. However, if the matrimonial matters accompanying divorce are disputed, then the divorce proceeding will be contested and can become very lengthy, stressful, and expensive.
If you intend to apply for divorce, it is highly recommended to consult an experienced family lawyer to determine what is the best way to proceed in your particular case, what you can expect from the court, and whether there is a way to amicably resolve your matrimonial issues without resorting to litigation and then obtain the divorce on an uncontested basis.
If an amicable resolution is not possible, it is even more desirable to have an experienced family lawyer representing you as the court process is quite convoluted and it is not a good idea to go through this often an emotionally challenging process by yourself, especially if the other side is represented by a lawyer.