The Canada Divorce Act outlines that a breakdown of the marriage is established when one of the following grounds occurs:
One year separation
More than 90% of legal separation cases in Alberta are filed based on the ground of “living separate and apart for a period of at one least year”.In some households, parties decide to continue to live together in spite of the separation. Their decision could be based on many factors, including their financial situation, caring for their children, and their work schedules. This is mostly true for shift workers who have young children. Even when the two parties have agreed to the separation and divorce, they decide to both stay living in the matrimonial home so one cares for the children while the other parent is at work.
In Alberta, parties to a divorce action are not required to provide physical evidence that they are living separate and apart. The separation date is simply documented in the applicant’s Affidavit, which is regarded as written evidence. A party to a divorce action can regard himself “separated” when he stops believing that he is living a “marital life” with his partner. This may materialize into the couple no longer having an intimate relationship, stopping to carry on traditional tasks, and simply feeling distant and independent from one another. Because the separation date in a case like this is not marked by a physical change in residence, some parties disagree on the date of separation. That in itself could turn a smooth divorce into a contested one.
Even though many feel that this one-year pause to file for divorce in Alberta is a long and futile time to wait, there is in fact value in it. This one year gives people the chance to think things through and to practice living independent of the other party. It can be regarded as a “sneak peek” into how financials and the parenting of the children may look like post-divorce. It also gives people a chance to research their divorce processing options and choosing the right professional to help them through the transition.
Quite honestly, adultery happens much more often than it is claimed in the divorce documents. There are many reasons why people don’t choose this ground for filing a divorce in Alberta. One obvious reason, of course, is privacy. In many Canadian jurisdictions, family and divorce files are public records. Anyone can request to view and copy documents from a file, including Claims and Affidavits. Another reason for Albertans specifically to not choose “adultery” as their ground for getting a divorce in Alberta is that there is a legal requirement for the defendant (the person alleged to have committed adultery) to swear an Affidavit admitting to it. It is a requirement that this Affidavit includes the time and place of the adultery. Not many people are willing to do that! So the person filing is often left with the option of waiting the one year and filing based on the ground of living separate and apart for one year as opposed to Adultery.
Physical or mental cruelty
If people find adultery to be best kept private, then being inflicted by physical and mental cruelty is ten folds that. There are so many women who choose to suffer in silence and not share the horrors of the mental and physical abuse they lived. Many of them are afraid of what their former partners would do if they find out that they are sharing the details of their abuse as a public record. The courts, on the other hand, require extensive evidence to allow a party to proceed on this ground for divorce in Alberta.
Ground #1 is not required to be established if Ground #2 or #3 occur and are proven. In other words, parties to a divorce action who are able to prove Adultery or Physical or Mental Cruelty do not need to wait for one year to file for divorce. They can file for it immediately.
One last note; many people believe that if they are successful at proving adultery, or mental and physical cruelty, they are automatically entitled to more money. This is simply untrue. The ground for divorce in Alberta has nothing to do with the payment of spousal support or the division of matrimonial assets.
To bring it all together, grounds for divorce in Alberta, and the rest of Canada are three; living separate and apart for at least one year, adultery, and mental or physical cruelty. The separation date is one of the first elements of the divorce that parties should determine, as it dictates when they can file for divorce.