Court Procedure made simple
The “grounds for divorce” are the reasons you can use for seeking a divorce. Divorces are governed by the Divorce Act of Canada. You can get a divorce for one of the following reasons:
- You and your spouse have lived separately and apart for at least 12 months; or
- Your spouse, since the wedding, has committed adultery; or
- Your spouse has treated you with physical or mental cruelty to the extent that it has rendered the continuation of marriage intolerable.
While you can claim adultery or cruelty, it generally makes the divorce more difficult and more expensive, because you have to prove the adultery or maltreatment. Most people apply for a divorce after living separately and apart for one year.
You do not have to live in separate homes to live separately and apart. Since the economic downturn, a growing number of divorcing couples have been unable to physically separate. Most often they have moved into different bedrooms and have stopped viewing themselves as a couple. This is referred to as “living separate and apart in the same home”.
Living separately and apart in the same home can be hard to prove. This is very much a subjective test, and both spouses have to agree to the separation. It is often worth having some documentation of this agreement.
Once you have decided to divorce, it is a good idea to negotiate a Separation Agreement. This can record your agreement in relation to any issue around the separation- from kids to cars, the sale of the home, and/or how much support will be paid.
You do not have to include everything in the Separation Agreement, but the more you can settle the smoother the divorce will be for everyone involved. It is not uncommon for separating couples to write up their agreements and take them to lawyers to “make them legal”.
If you are not able to reach an agreement on everything relating to the separation, then you can use a mediator or collaborative lawyer to help you reach an agreement. The more that you can agree on beforehand the cheaper this process will be.
Common areas of agreement are:
1. Child Support,
2. Sale of Property,
3. Property and Debt division, and
4. Division of Pensions.
These areas are clearly dealt with by the law. Child support is calculated based on the Federal Child Support tables, and property issues are presumed to be shared equally.
Common areas of disagreement are:
1. Guardianship and Parental Responsibility,All Posts
2. Parenting time,
3. Extra-ordinary expenses,
4. Spousal Support, and
5. Income calculations.
These areas often need the help of a professional to define the relevant rights and interpret the law.
Divorce is never easy. If you work together and do your best to reach a solution, you will come out of the process stronger and healthier than if you fight for the sake of fighting.
Unfortunately, in some cases, you will have to fight. In those cases, you will need the help of an experienced family law lawyer to protect you and those you care about.
Collaborative Lawyer, Mediator, and Arbitrator
November 22, 2013
Lawyers & Mediators
402-2020 Richmond Road
Victoria, BC. V8R 6R5