When a relationship ends and the spouses go their separate ways, usually the more difficult issues to resolve are parenting arrangements, support entitlements, and the division of family property. While the divorce itself may be fairly routine, certain conditions still need to be met before the court will grant a divorce. One way spouses can divorce is if they have lived separate and apart for at least one year, but there may be questions about the proper date of separation. Furthermore, courts will not grant a divorce if child support claims have been left unresolved.

This blog post will provide an overview of divorce in Ontario, including the grounds upon which a divorce may be granted, the importance of the date of separation, and how courts ensure that children of the marriage are adequately supported after a divorce.

Divorce Act Sets Out the Grounds for a Divorce

The federal Divorce Act authorizes courts to grant a divorce to a spouse when there has been a breakdown of the marriage. Section 8(2) states that a breakdown of the marriage is established if:

  1. 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; or
  2. the spouse against whom the divorce proceeding is brought has, since celebration of the marriage, committed adultery, or treated the other spouse with physical or mental cruelty.

Section 8(2) is concerned with the time the spouses live separate and apart. In the case of Strobele v. Strobele, the court remarked on the concept of separation that two people need to be committed to the continuation of a relationship. Yet, separation “requires more than living under separate roofs to encompass a cessation of the multi-levelled intricate relationship between couples”. Although either spouse can end the relationship without the other’s consent, it is not always evident to the parties that the relationship is over and what the date of separation should be. In Chang v. Sze, Justice Charney explained that for some spouses, “separation is a process rather than an event”. Yet, a specific date still needs to be identified.

Objective Factors Determine the Parties’ Separation Date

In Al-Sajee v. Tawfic, Justice Chappel indicated that factors that are relevant to deciding the valuation date under the provincial Family Law Act for property division are also relevant for determining when parties began to live separate and apart to meet the test for granting a divorce. This can require looking at the parties’ relationship, living arrangements, and habits. Determining the parties’ intention is also important. Courts have found there must be a withdrawal by one of the spouses “from the matrimonial obligation with the intent of destroying the matrimonial consortium” or of repudiating the matrimonial relationship. While a clear statement by one spouse expressing a desire to terminate the relationship will be relevant, Justice Chappel also indicated that a relationship ends when “either party regards it as being at an end, and that party by their conduct has demonstrated in a convincing manner that their state of mind on this issue is a settled one”. Importantly, each marriage is assessed on its own facts, objectively considering the different factors.

Courts Have a Duty to Ensure Children are Supported Financially

Section 11(b) of the Divorce Act provides that in a divorce proceeding, the court has a duty “to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made”.

The case of Iafolla v. Lasota demonstrates the importance of ensuring that reasonable arrangements have been made for children following a divorce. It also offers insight into how the courts can intervene to ensure support is made available. This case involved a dispute over the proceeds of the sale of a matrimonial home. A creditor of the ex-husband registered a writ of execution on title to the home in relation to a judgement against the ex-husband, and consequently, he argued that he was entitled to the balance of the proceeds. However, under the divorce judgement, the funds were to be held as security for the ex-husband’s support obligations.

The Court explained that the Divorce Act adopts a child-centered approach to divorce orders by prioritizing children’s needs. As children are not parties to the divorce, their presence “engages special duties for the court to ensure that arrangements are made for support”. In line with the obligation in section 11of the Divorce Act, the trial judge secured the sale proceeds of the home for future support, including for the children. It was clear the judge intended to secure the husband’s share of the house proceeds for the benefit of the children. Although the appellant argued that the trial judge’s order only secured the proceeds that were left over after debts were paid, the Court did not accept that argument.

Instead, the Court concluded the trial judge was not aware of the appellant’s writ. The consequence of the appellant’s argument was that the security for support that the trial judge put in place would be eliminated. The Court of Appeal determined that, had the judge been aware of the writ, the security she put in place to comply with the Divorce Act would likely have been different. The proper procedure was to refer the case back to the trial judge to revisit the order in light of the discovery of the writ.

Divorce Can be Granted Upon a Breakdown of the Marriage

There is no formal process that a party needs to follow to separate from their spouse. However, if a party wants to obtain a divorce, the most common ground upon which a divorce may be granted is when the parties have lived separate and apart for at least one year. The Divorce Act sets out the grounds for a divorce, and also sets out rules about ensuring support for children when parents divorce. A divorce will legally dissolve a marriage, but courts may refuse to make an order until reasonable support for children has been secured.

The Toronto Divorce Lawyers Provide Comprehensive Legal Advice on Support Claims and Parenting Arrangements

The breakdown of a marriage can be an incredibly difficult and emotional time. However, the experienced and compassionate family law lawyers at NULaw can help make things easier by guiding you through the divorce process and ensuring your interests and rights are protected. We will provide you with trusted legal advice on your responsibilities and entitlements to ensure that you can focus on moving forward after your divorce. To schedule a confidential consultation with one of our family law team members, call us at 416-481-5604 or reach out to us online.

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