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Divorce in Canada - Legal Basis for Divorce

Legal Basis for Divorce - There are three grounds for divorce in Canada: (1) separation for a year; (2) adultery; or (3) physical or mental cruelty. ezDivorce does not assist with the latter category.

To use ezDivorce your divorce must be based on separation (read more below) or adultery, but only where the spouse who committed the adultery will admit the adultery in an affidavit.

Separation - The Divorce Act requires that you have been 'living separate and apart' for one year. You can file for divorce any time after you separate, however the court will not finalize the divorce until you have been separated for a 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. Click here to read more about this subject.

Note: Most courts in Ontario allow you to start the divorce process once you are 'separated', however you cannot finalize the divorce until you have been separated for a year*. However, despite the fact that there is no legal justification for this, some courts, including Chatham and St. Catharines, will not allow you to file the divorce until you have been separated for a year*. *Unless your divorce is based on adultery or abuse. 

Filing for Legal Separation? - This is a myth - there is no such thing as 'filing for separation' in Ontario. You are legally separated when the marriage breaks down and you are 'living separate and apart' (see above).

Proof of Separation- I an uncontested or joint divorce, the only 'proof' of separation required by the court is your sworn affidavit stating when you separated.

Separation Agreement - The courts do not require that you have a separation agreement - however any lawyer would recommend that you have one - particularly where you have minor children and/or you own property that must be divided.  Click here to read more.

Adultery:  You cannot file a sole/uncontested divorce based on your own adultery, nor can you file a joint divorce based on adultery. The non-adulterous spouse must be the one to file for divorce. Note: some judges will not grant a divorce based on adultery unless the other spouse admits to the adultery in writing. If your divorce is rejected on this basis, you will have to wait until you have been separated for a year to have the divorce finalized.

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Updated on August 26, 2014