Our current Divorce Act is a federal law which has been in effect since February 1986, and is applicable throughout Canada. It is the Constitution of Canada that requires that Parliament set the conditions for marriage and divorce, to be administered equally in every province and territory of our country. In each province, there is a designated court that has the jurisdiction to deal with divorce and all its ramifications.
In Quebec, it is the Superior Court that deals with divorce and all related issues, including custody, child support, alimony, access rights, division of assets and so on. The province of Quebec is divided into districts (such as Montreal, Longueuil, Laval, Joliette, St-Jérôme, and so on), and each district has its own central Superior Court.
You may start a divorce action before the Superior Court in the judicial district in which you or your spouse are habitually resident (there are specific rules to determine the “habitual residence” of a spouse or a child).
The Divorce Act provides that marriage breakdown is the grounds for divorce, and there are three particular kinds of marriage breakdown:
- Separation of over one year, without hope of reconciliation (and without any resumption of cohabitation of over 90 days). This is the most common ground for divorce, because it is “no fault”. Neither you nor your spouse have to explain why you are living apart, as long as both of you do live apart for the 12 month period, and there is no hope of resumption of a life together.You may try to reconcile during this period: if you live together for more than 90 days, and separate again, the 12 month period must be counted from the date of the “new” separation. However, if your attempt at reconciliation lasted for 90 days or less, there is no interruption in the counting of the 12 month period.
Some couples separate, but live under the same roof, for example, when financial limitations prevents one of them from renting a new apartment. It is harder to prove that you have been “living separate and apart under the same roof,” but judges are willing to listen, as long as the “separation” is serious: no more sexual relations, no socializing together, no more meals eaten together, and so on. It must be clear that the two of you are no longer sharing a common life, but are living as two independent adults, with no more contact than roommates would have.
- One of the spouses has committed adultery. Despite popular belief, you do not have to bring your spouse’s lover to court to prove the adultery. In most instances, the unfaithful spouse ends up admitting the adultery, and this is sufficient proof in court. At first, the unfaithful spouse may deny the adultery out of fear it will affect his or her claims in the divorce, but since the Divorce Act attaches no negative consequences to an admission of adultery, there is no particular reason to deny it. Also, the divorce judgment itself does not mention the ground for the divorce, so there is no long-term shame or stigma to admitting the adultery.Otherwise, you have to make sufficient proof to convince the judge that your spouse likely committed the adultery: motel receipts, telephone bills showing repeated calls from a partner, long unexplained absences from home. These are painful matters about which to testify, but hearings in divorce cases are closed to the public, and a judge only will require enough evidence to be convinced that the marriage is over so the process is not more unpleasant than it need be.
There must not be collusion or condonation about the grounds for divorce: this means that you cannot pretend to an adultery that has not taken place in order to speed up a divorce (that would be collusion); also, this means that you cannot claim adultery as grounds for divorce if you have forgiven your spouse before taking proceedings (that would be condonation).
- Your spouse has treated you with mental or physical cruelty that makes continued cohabitation intolerable. Physical cruelty is a simple ground for divorce: any judge understands that a spouse, husband or wife, should not be expected to tolerate or accept to continue a marriage in which there has been domestic violence.As for mental cruelty, this is much more subjective. The judge needs to understand two important elements: first, that your spouse has engaged in the conduct you find cruel (yelling at you, insulting you, belitting you in front of the children, or similar misconduct which falls short of physical cruelty), and second, that this conduct has made it intolerable for you to continue your marriage (you have become depressed, you have entered therapy, you are unable to work or to sleep). Simple testimony about “irreconcilable differences” or about “having grown apart” does not satisfy the standard for mental cruelty.
As in the other grounds for divorce, when your spouse admits to the conduct, it is far easier to proceed to the divorce.
As a practical reality, by the time the divorce is finally heard by the court, whether after you and your spouse have come to an agreement or the two of you have fought it out in a protracted court battle, the last thing the two spouses want is a lengthy debate about the grounds for divorce, and there is usually reasonable cooperation to ease the process.
Courts rarely spend more than 10 or 15 minutes on hearing about the grounds for divorce; judges are far more concerned about the protection of the children (custody, access, parental authority, child support), the division of property (family patrimony, matrimonial regime, compensatory allowance) and the financial support of the disadvantaged spouse (alimony and lump sums).