E. Marriage Breakdown as Sole Ground for Divorce

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 191-204

Contenidos

• 1) Spousal Separation as Proof of Marriage Breakdown.
• 2) Adultery and Cruelty as Proof of Marriage Breakdown: No Waiting Period.
• 3) Marriage Breakdown: Adultery.
• 4) Marriage Breakdown: Cruelty.

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Section 8 of the Divorce Act¹⁰¹ defines the ground for divorce. In light of its importance, it is appropriate to reproduce it in its entirety:

Divorce

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) 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

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Calculation of period of separation

(3) For the purposes of paragraph (2)(a),

(a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

(i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

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Pursuant to section 8 of the Divorce Act, there is only one ground for divorce in Canada, namely, a "breakdown of [the] marriage."¹⁰²It is not sufficient for one or both spouses to simply assert that their marriage has irretrievably broken down. In order to obtain a divorce under the Divorce Act, breakdown of a marriage is established "only if" the spouses have lived separate and apart for at least one year immediately preceding the divorce judgment, or the spouse against whom the divorce is sought has since the celebration of the marriage committed adultery or treated the other spouse with physical or mental cruelty of such a kind as to render continued marital cohabitation intolerable.¹⁰³Same-sex couples who are legally married may invoke the primary and corollary relief provisions of the Divorce Act.¹⁰⁴It is important to bear in mind, however, that not all same-sex couples choose to marry. Only those who marry can avail themselves of the corollary relief provisions of the Divorce Act that relate to spousal support, child support, custody, and access. If same-sex couples, who cohabited but did not marry, wish to obtain any of the aforementioned types of relief, they must, like unmarried cohabitants of the opposite sex, have recourse to applicable provincial legislation. While this may be of little practical significance because applications for spousal support, child support, custody, and access usually generate the same result whether such relief is sought pursuant to provincial legislation or the Divorce Act, fundamental differences between same-sex married couples and same-sex unmarried couples may arise in the context of provincial statutory property rights on the breakdown of their relationships. For example, in Ontario, a same-sex married partner may obtain an equalization of the net spousal properties pursuant to Part I of the Family Law Act¹⁰⁵as amended by the Spousal Relationships Statute Law Amendment Act.¹⁰⁶However, in light of the judgment of the Supreme Court of Canada in Nova Scotia (Attorney General) v Walsh,¹⁰⁷a same-sex former unmarried cohabitant cannot avail himself or herself of similar relief and must rest content with such relief as might be available at common law or by way of resulting or constructive trusts.

Section 8(1) of the Divorce Act provides that "either or both spouses" may apply for divorce. A joint petition for divorce may be based on marriage breakdown as manifested by the separation of the spouses within the meaning of

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section 8(2)(a), but a joint petition cannot be brought where the facts relied upon, in whole or in part, involve the adultery or cruelty of the respondent as defined in section 8(2)(b).¹⁰⁸

1) Spousal Separation as Proof of Marriage Breakdown

Spouses who rely on the one-year separation period in order to obtain their divorce are not required to wait until that period has expired before filing for divorce. A divorce petition can be filed on the day following the spousal separation but a divorce judgment cannot be obtained until the one-year period has elapsed. Once a divorce petition has been filed, either spouse may obtain interim corollary relief, such as support, custody, or access, to tide him or her over until the issues can be permanently resolved by a trial in open court or settled by the parties, with or without the aid of lawyers or mediators.

Subject to the provisions of section 8(3)(b) of the Divorce Act, the designated period of separation under 8(2)(a) must be continuous and uninterrupted up to the time when the divorce judgment is granted.

The words "living separate and apart" in section 8(2)(a) of the Divorce Act require proof of an intention to bring the marriage to an end in addition to the fact of separation. A spouse, who has the mental competence to manage her own affairs and instruct counsel, also has the mental capacity to form an intention to permanently live separate and apart from her husband, notwithstanding any delusions from which she may be suffering.¹⁰⁹Subject to section 8(3)(b)(i) of the Divorce Act, the physical separation and the intention to end the marriage must co-exist for the requisite one-year period. Neither factor standing alone can satisfy the statutory requirements of section 8(2)(a).¹¹⁰No account will be taken of any period of physical separation that occurred prior to the formation of an intention to terminate the marriage.¹¹¹Section 8(2)(a) of the Divorce Act draws no distinction between deserted and deserting spouses. It is immaterial whether the separation occurred by consent of the spouses or by reason of an unjustifiable withdrawal from cohabitation by one of the spouses. In either event, it is open to one or both spouses to commence proceedings for divorce. Unilateral abandonment of

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the matrimonial relationship is sufficient to satisfy the requirements of section 8 of the Divorce Act.¹¹²Section 8(3)(b)(i) of the Divorce Act provides that the designated period of separation will not be interrupted or terminated by reason that either spouse has become incapable of forming or having an intention to live separate and apart, if it appears to the court that the separation would probably have continued in any event. Thus, supervening physical or mental illness that precludes a spouse from retaining a prior intention to treat the marriage as ended will not bar relief under section 8(2)(a). An enforced physical separation will satisfy the requirements of section 8(2)(a) of the Divorce Act but only if it is accompanied by a co-existing intention to end the marriage.¹¹³Spouses may have been living "separate and apart" within the meaning of section 8(2)(a) of the Divorce Act, notwithstanding their continued residence under the same roof, provided that they have been living independent lives while sharing common accommodation.¹¹⁴In Cooper v Cooper,¹¹⁵Holland J of the Ontario Supreme Court pointed out that a finding that the spouses have been living separate and apart, albeit under the same roof, may be made where the following circumstances are present:

· occupation of separate bedrooms;

· absence of sexual relations;

· little, if any, communication between the spouses;

· the wife is providing no domestic services for her husband;

· meals eaten separately; and

· no social activities together.

It is not necessary, however, to establish all six elements and each case must stand or fall on its own merits.¹¹⁶In determining whether the spouses are living separate and apart within the meaning of section 8(2)(a) of the Divorce Act, the court must give greater weight to those matters that should

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be peculiar to a husband and wife relationship, such as sexual relations, joint social ventures, communication, and discussion of family problems, rather than to the performance or non-performance of domestic chores.¹¹⁷Similarly, the payment of household expenses does not negate a finding that the spouses have been living separate and apart under the same roof where there were no activities of any kind as a family.¹¹⁸The cessation of sexual intercourse is relevant but not conclusive on the issue whether the spouses have been living separate and apart within the meaning of section 8(2)(a) of the Divorce Act.¹¹⁹Where the spouses remain under the same roof and continue to discharge their marital responsibilities, the cessation of sexual intercourse will not suffice to justify a finding that the spouses are living separate and apart within the meaning of section 8(2)(a) of the Divorce Act.¹²⁰Isolated or casual acts of post-separation sexual intercourse between the spouses do not preclude a finding that they have continued to live separate and apart within the meaning of section 8(2)(a) of the Divorce Act, nor justify a finding that they have resumed cohabitation within the meaning of section 8(3)(b)(ii). In the absence of a mutual intention to become reconciled, the continuance or resumption...