There are
three grounds for divorce in Canada: (1) separation for a year;
(2) adultery; or (3) physical or mental cruelty.
Separation - The Divorce Act requires that you
have been 'living separate and apart' for one year. 'Living separate and
apart' does not necessarily mean in separate
residences. If your relationship has ended but both spouses are
still living in the home for one reason or another (money, kids,
etc.), you may still be considered to be
living 'separate and apart' if you are no longer behaving as
though you were married.
Parties can
live apart under the same roof, and can still cohabit even if
they live in separate locations. The courts look at various
objective factors to determine if the parties are living apart
or not. Greaves v. Greaves 2004 CanLII 25489 (ON S.C.).
Some of the criteria that judges consider when determining when
a couple began 'living separate and apart' are:
(a) Physical separation;
(b) Withdrawal by one or both of the spouses from the
matrimonial obligation with the intent of destroying the
matrimonial consortium;
(c) Absence of sexual relations is not conclusive, but is a
factor to consider;
(d) Lack of communication between the spouses and discussion of
family problems;
(e) Absence of joint social activities;
(f) Meal pattern;
(g) Performance of household tasks;
(h) Making plans for his or her assets as a separated person
(i) The relationship and conduct of each of them toward members
of their respective families and how did such families behave
towards the parties
(h) The financial arrangements between the parties regarding the
provision of or contribution toward the necessaries of life
(food, clothing, shelter, recreation, etc.):
Oswell v. Oswell,
reflex, (1990), 28 R.F.L. (3d) 10 (Ont. H.C.J.), aff’d
reflex, (1992), 43 R.F.L. (3d) 180 (Ont. C.A.);
Proof of
Separation
In an
uncontested or joint divorce, the only 'proof' of separation
required by the court is your sworn affidavit stating when you
separated.
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