Q&A By John T. Syrtash, Associate,
Garfin Zeidenberg LLP, a Toronto family law lawyer for the past 39 years
I wish to clear up public misconceptions about the grounds for divorce in Canada. One might assume that if your spouse commits adultery and mental and/or physical cruelty, then a divorce will be cheaper and faster. You might even believe that it will lead to a quicker divorce, right?
1 Neither is true. Adultery is one of a few reasons a Court can grant a divorce. Others include mental and/or physical cruelty or one year of separation. This one year of separation does not mean that the spouses began living in separate residences. If they continued to reside together but live “separate and apart but under one roof,” then they may still be legally “separated.” However, many mistakenly believe that you can get a divorce much quicker than one year if your spouse either tormented you or had sex with someone else. However, after one year of separation in Canada, a divorce can be granted by the Court almost automatically by filing Court papers “over the counter” at the Court Office without any costly oral court hearing. One then gets the Divorce Order in the mail from the Court, or it is sent to your lawyer.
2 There are exceptions to the simplicity of this process. For example, when you can’t find your spouse to serve him or her with your claim for divorce, it gets complicated. More importantly, if you are claiming something other than a divorce, such as parental rights, support, or a property split. Then your Divorce right way. It may not be granted until any such contested claims are resolved through negotiations or at trial. In such Contested cases, the Court’s rules make you jump through many expensive legal hoops before it grants you a divorce, even based on one year’s separation. However, if the other spouse can be easily served in Canada at a known address and neither you nor your spouse is making any claims from the Court except for the Divorce itself, then the Divorce is “Uncontested.” It will not cost much, and it takes only about four months, from start to finish, in most cases, depending on your city of residence. The cost may be as cheap as $2500 if completed by a competent lawyer. Beware cheaper rates by company’s offering such low rates because their advertised rates don’t usually involve disbursements, taxes, or “extra” fees if your estranged spouse lives outside Ontario or can’t be found.
3 No one ever bothers claiming for a Divorce because of cruelty or adultery anymore – its almost always based on one year’s separation. Until a Supreme Court of Canada decision in 1962, one could claim monetary damages for “criminal conversation” and “alienation of affection” against the fellow/lady who seduced your wife or husband. But the Supreme Court abolished the right to damages that year. As explained, if all you want is a divorce and your spouse resides in Canada, then getting it “over the counter” without an oral Court hearing is straightforward and inexpensive, i.e., if neither of you wants to sue the other for financial or parenting rights. However, if you sue based on cruelty or adultery, you have to prove your case at a trial or a motion if it is contested. Providing evidence of cruelty and adultery at a contested hearing when after one year of separation, one has a near-automatic right to Divorce is folly. After one year, there is no contest: and no one can typically argue that a year has come and gone. There is no need to call evidence at a trial. However, a contested divorce trial can easily cost $60,000 unless your claims are not challenged. But even then, one has to file evidence over-the-counter about the alleged adultery or cruelty, which will cost your Divorce more if you are using an agent or lawyer. If the divorce claim is challenged, then it can cost a great deal of money, depending on the number of witnesses, the cost of preparation, and disbursements plus HST. And before a trial takes place, a contested Divorce requires you to have your lawyer prepare for and attend three different court hearings, called Conferences. They were devised to help people try and resolve their family law disputes with a Judge’s assistance who acts as a Judicial advisor, not a decision-maker. These Conferences take place over several months and have nearly bankrupted many clients before a trial can even take place. And every lawyer requires a hefty retainer before a trial, at least $60,000 in most cases.
4 Why go through a much much more expensive and lengthy process when you can simply “wait out” the year and obtain the Divorce at a fraction of the cost since no one can typically contest the time since the parties were separated, that is the time you have been separated. Moreover, you will likely wait a year until those adultery and/or cruelty claims are heard at a trial in our very busy Courts. So why bother? It will take the same year to litigate a contested divorce, so why plead cruelty and/or adultery for your divorce when you could save yourself tens of thousands of dollars by merely relying on the passage of time. After the year, you can then use an inexpensive “over the counter” procedure rather than continuing to pay your lawyer.
5 However, there are situations where the issue of when the parties separated is fiercely litigated, i.e., when the division of property and property values are in dispute. Property values for each spouse are compared and divided 50:50 in most cases as of the date of separation in Ontario and many other provinces. If your stocks or other property increased in value after separation, then that increase in value is excluded from division with the other spouse. There are, therefore, numerous cases where Judges have to decide exactly when the date of separation took place to sort out if one’s property increased in value before or afterwar the time of separation.
6 There are some occasions when victims of spousal abuse and adultery plead adultery and/or cruelty for reasons other than to obtain a Divorce itself. That is not because doing so actually shortens the time it takes to get a Divorce or makes it any less costly. Even where no damages can be awarded for spousal misconduct under the Divorce Act, we sometimes plead the one-year separation plus cruelty and/or adultery. Why? Well, making such a claim by the spouse “left behind”’ can assist her/him to recover some dignity. This is especially true if he/she suffered from the spouse’s adulterous behaviour, a person once loved. Embarrassing his/her partner and paramour in a public Court can sometimes assist in one’s psychological recovery. Moreover, victimized spouses who have been mentally tormented, assaulted or even raped will plead cruelty by reciting facts that may help their financial claim for damages under the principles of Civil Law, not under the Divorce Act but which claims can be included in a Divorce Application.
Finally, if you do have contested financial and/or parenting claims and the Court had not yet determined them before trial, then you may still ask a Judge for a Divorce before the trial of these contested issues, so long as one year has passed since the parties separated. You won’t need a trial on this issue because the one year has come and gone: the request, brought on Motion, can’t normally be contested. In such cases, the Courts only refuses a request by a motion for a “divorce” pending trial if the payer of child or spousal support is in arrears. Another reason for refusal can take place when a dependent may lose his/her rights to a spouse’s extended health care once divorced. In such cases, the payer spouse applying for the Divorce may agree to replace such benefits with direct payments to the supplier of medical/dental services for the benefit of his dependent spouse and/or children or agree to pay monthly for a similar private extended health care plan, like Blue Cross. And remember: the Court can still consider you to be “separated” if you continued to live separately and apart but under one roof.
John Syrtash is an associate and family law lawyer with the Toronto firm of GARFIN ZEIDENBERG LLP.
John T. Syrtash B.A. (Hon.) LL. background:
Invited Speaker on Bill 78, Proposed Changes to Canada’s Divorce Act, House of Commons Standing Committee on Justice and Human Rights (November 26, 2018)
Editor of the Syrtash Family Law Newsletter, Lexis Nexis
President of the Syrtash Spousal Support Database
Author of Religion and Culture in Canadian Family Law, Butterworths
Author A Calendar of Northern Fables, Amazon
Neither GARFIN ZEIDENBERG LLP nor John Syrtash is liable for any consequences arising from anyone’s reliance on this material, presented as general information and not as a legal opinion.
John T. Syrtash,
GARFIN ZEIDENBERG LLP
5255 Yonge Street, Suite 800
Toronto, Ontario, Canada M2N 6P4
Cell: (416) 886-0359
Fax: (416) 512-9992