The 1985 Divorce Act is a federal mandate that changes the rules by which a court assumes jurisdiction for divorce petitions. This Act not only establishes jurisdiction, it also sets a new standard for grounds of divorce, creates the option to file a joint petition for divorce, and establishes set procedures for when a divorce decree becomes effective.
A court in the province of Ontario has jurisdiction over divorce proceedings if one or both spouses have resided in Ontario for at least twelve months preceding the filing of the divorce petition. Following the divorce, requests for variation of the divorce decree may be made to any court in the province in which either spouse resides, even if it is not the same court where the original divorce was granted.
Under the Divorce Act, the only ground for divorce is marriage breakdown. Marriage breakdown can be demonstrated in cases where:
- The spouses lived separately for at least one year prior to the divorce judgment
- The spouse against whom the divorce is sought (i) committed adultery or (ii) treated the other spouse with physical or mental cruelty of a kind to make it intolerable to live together
Where the grounds for divorce is marriage breakdown based on one year of separation, the time of separation begins on the date the spouses began living apart. During the time of separation, either spouse may make an application for divorce at any time, even before the spouses have been living apart for one year, but the divorce is not granted until one year has passed. During the one year period of separation, if the spouses resume cohabitation for a period of more than ninety days, the calculation of the one-year period will begin anew, following the last date of separation.
Under Section 11 of the Divorce Act, certain activities will bar the grant of a divorce. Such activities include:
- Collusion between the spouses
- The parties fail to make support arrangements for the marital children
- A divorce has been sought on cruelty grounds but there has been no condonation or connivance
The Divorce Act introduced the option to file for divorce jointly. Using a joint petition, the spouses can claim divorce based upon the breakdown of the marriage when the spouses have been living apart for at least one year. Such petitions may include claims for spousal support, child support, child custody and child visitation. If the spouses wish to simplify the process even further, one spouse may file for divorce and the other spouse can agree not to respond to the divorce petition, thereby creating an uncontested divorce and eliminating the need for the spouses to appear in court.
Spouses who reconcile prior to filing a divorce petition, or who reconcile prior to fulfilling the one year requirement for living separate, are still married and must do nothing to maintain their marital status. If the spouses attempt to reconcile and begin to cohabit during the one year requirement for living separate, the waiting period for divorce starts over if the spouses cohabit for more than ninety days. The purpose of this ninety-day reconciliation period is to permit the spouses to repair the marriage without penalizing them if the reconciliation is unsuccessful.
Negotiation is the process through which the spouses negotiate a favorable settlement agreement. During the negotiation process, the two parties essentially compromise, with each side offering certain allowances in exchange for other provisions that they wish to include in the property settlement agreement.
Mediation is another alternative to litigation that allows spouses to quickly resolve their differences and come to a settlement agreement regarding their property, children, and support issues. During mediation, a professional, non-partisan mediator facilitates conversations between the spouses to assist them in coming to a reasonable agreement.
Once a settlement has been reached, whether through mediation or through negotiation, the parties will express their agreement in a written separation agreement. This agreement will then be presented to the court and incorporated into a divorce judgment that makes the agreement more easily enforceable.
Under the Divorce Act, a divorce judgment becomes effective thirty-one days after it is granted. In certain circumstances, the court may shorten the thirty-one day requirement if the parties agree to the shortened period and agree not to appeal the judgment. However, a certificate of divorce certifying that the judgment has taken place is not made available under thirty-one days after the judgment was entered. Such certificates are required to remarry.
The Divorce Act also covers corollary issues such as spousal support, child custody, child access and child support. Corollary relief is any relief sought that is separate from the actual divorce. Such relief may be sought by the petitioning spouse in the petition for divorce, or by the responding spouse in a counter-petition. The divorce itself may be severed from the corollary relief sought, so that a summary judgment for the divorce may be obtained even though the parties are unable to agree on issues such as child custody and support. Additionally, while the divorce is being finalized, either spouse may petition for interim corollary relief, such as interim orders that grant custody of the children to one parent while the corollary issues are being resolved.
Robert Berman B.C.L, LL.B
Founder & Family Law Lawyer