My spouse wants a divorce. I don’t. Can a lawyer help me fight it?

The right to have a divorce under the current Divorce Act promulgated in 1985 is an inalienable right.  

There are three grounds for divorce. They are stated in section 8 of the Divorce Act to be:

1. Breakdown in a marriage, in effect, the spouses having lived apart for at least one year immediately proceeding the hearings of the divorce and having been separated at the beginning of the proceedings; or
2. The spouse against whom the divorce action is brought has committed adultery; or
3. The spouse against whom the divorce action is brought has treated the other spouse with physical or mental cruelty of a kind to make intolerable the continued cohabitation of the spouses.

The first ground (1) means that either of the parties can commence a divorce action as soon as the day they separate, but it cannot be heard for one year. This period of separation will not be interrupted by the fact that the parties attempt reconciliation for a period or periods not totalling more than 90 days. In other words, spouses can attempt to reconcile, as there is a great inclination in the law to promoting reconciliation, and one or more attempts of reconciliation as long as the total number of days does not exceed 90 days and does not interrupt the year of separation.

The second ground (2) is based on the other side committing adultery and it has to be provable. It’s not enough just to suspect. There has to be either proof by way of hotel chits with two names, not just a hotel bill, or there has to be evidence that they actually spent the whole night together. It is a fairly heavy test. Again, it’s not based on conjecture or even presumption. It has to be clearly proven. The adultery can not be “old,” in effect, it happened long ago and was forgiven (condoned).

The third ground of cruelty (3) requires inappropriate behaviour of a kind as to render the continuation of the marriage to be intolerable — and “intolerable” is a fairly high test. It is more than one shoving match, as I understand the law, and given that the courts seem to favour utilization of one year separation as the grounds, the faster grounds of cruelty and adultery have fallen out of favour. 

The answer to the main question is that you cannot prevent your spouse from obtaining a divorce, even if you are opposed on religious and/or moral and/or financial grounds, but you are entitled to your relief of support, both spousal and child, equalization of assets, exclusive possession of the matrimonial home, a non-harassment order, if your spouse is stalking or bothering you, etcetera. You cannot prevent someone from obtaining a divorce.

There are also separate sections within the Divorce Act as regards to the obtaining of a religious divorce where it is granted between the spouses, such as in Muslim and Jewish divorces (s. 21.1) that can be forced by way of financial coercion by the courts (not religious coercion). This does not affect the operation of the Roman Catholic Marriage Tribunal.

I am sorry that you feel forced to accept a divorce. However, if you advise the court that you wish a reconciliation, the courts will attempt to facilitate a reconciliation. There are facilities available to assist through marriage counsellors, and it is an obligation of the courts to see, before the granting of a civil divorce, that all attempts at reconciliation are no longer viable. However, if one party wants a reconciliation, and one party wants a divorce, a divorce will occur.

Judith Holzman is a collaboratively trained family lawyer who has practiced for over 33 years in the Toronto and York Region area. She has participated in amendments to the Family Law Act (provincial) and the Divorce Act (federal) in the area of religious divorce.