It Takes Two To Tango, But How Many To Divorce?

Written on behalf of Arbesman Hamilton LLP

When two people get married, they both have to consent. But does the same standard apply when it comes to ending a marriage? The Ontario Superior Court of Justice answered that question in a 2015 case.

The purpose of the trial was to determine the level of spousal support available to the husband upon the dissolution of the couple’s marriage. However, in order to do so, the court had to first determine when the marriage ended; a date the husband and wife did not agree on. The husband said the marriage ended in April, 2010, while the wife claims it ended two years prior to that in May, 2008.

A Consensual Marriage

The couple was married in 2000 after knowing each other for close to two years. The couple maintained a long-distance relationship with the husband living in New York while the wife finished her nursing school courses in London, Ontario. The husband moved to Canada shortly after their wedding.

Throughout their marriage the wife worked full-time as a nurse, while the husband was largely unemployed, working sporadically. This, coupled with the husband’s drinking, was a source of stress on the relationship. By 2005, the wife had begun to sleep on the couch, and the couple no longer had sexual relations. It was not until 2008 that the husband cleared out a second bedroom and moved into it, allowing the wife to resume sleeping in the master bedroom.

The couple fought often, and the husband called the police on several occasions because he said he was worried he would become violent towards the wife. The wife testified that she felt trapped in the marriage, saying the husband would not leave but that she was not in a financial position to move out and support two households.

The husband first approached a lawyer regarding separation in 2008. The wife had a letter pertaining to divorce drafted two years later in 2010.

How To Determine a Date of Separation

The court’s challenge was in pinpointing when the marriage had come to an end.

The court addressed this question, stating that there is no checklist or test that can be used to determine when a marriage ends, writing

The goal under the Family Law Act‘s property provision is to fix a date on which the economic partnership should as a matter of fairness be terminated. The global question is when it was that the parties knew, or reasonably ought to have known, their spousal relationship was over and would not resume.”

The court also addressed whether one person could unilaterally end a marriage, writing:

“Continuation of a marital relationship requires two people. Either spouse can unilaterally end that relationship without the consent of the other. There are many cases where one spouse knows there will be no reconciliation, but the other may not know. At the same time, the court must be careful to look for some objective evidence upon which to find a date of separation, rather than simply accepting the after-the-fact statements of the party who has decided the relationship is over.”

In this case, the court determined the couple had separated in 2005, stating:

 “By 2005, they ceased to have a sexual or otherwise intimate relationship. Communication between them was largely by notes to one another. They had no social life to speak of. [The husband] had no friends and as a couple they had no mutual friends. Moreover, he objected to and interfered with [the wife’s] association with her own friends and even with her two sons. They had a joint bank account but only [the wife] was putting money into this account after 2006. [The wife’s] description of their relationship is corroborated in some respects by [her doctor’s] notes and the records of the police interventions.”

The lawyers at Arbesman Hamilton LLP are experienced in making decisions around separation and divorce, including dealing with issues of property division and spousal support. We can be reached online, or by phone at 416-481-5604.