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
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- (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.
AP Commentary: The recognizable grounds for divorce in Canada are:
- The parties living separate and apart for at least one year
- Adultery
- Cruelty
Calculation of period of separation
(3) For the purposes of paragraph (2)(a),
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- (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.
AP Commentary: In determining the date of separation, both parties do not need to jointly agree to the separation. All that is required is for either of them to have had the intention to live separate and apart from the other.
If the parties reconciled for more than 90 during the one year separation period, the count of the one year separation period must start afresh.
Parties may still live separate and apart while living together in the same home. The court will consider the following factors in deciding if the parties are in fact separated:
- Is there a withdrawal from matrimonial obligations
- Presence or absence of sexual relations
- How the spouses present to the public at social or family events
- If they eat meals together
- How household tasks are performed
How the parties filed their taxes