The Plaintiff in a Divorce Proceeding

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The topics in the Dial-A-Law series provide general information on a wide variety of legal issues in the Province of Alberta. This service is provided by Calgary Legal Guidance funded in part by the Alberta Law Foundation.

This topic discusses the plaintiff in a divorce proceeding. The plaintiff in a divorce proceeding is the spouse who commences the divorce proceeding. The defendant is the spouse you are divorcing who may defend against the divorce action or not.

The Divorce Act is a Federal Act, which applies across Canada. The requirements and procedure for divorce are the same for every province. To commence a divorce action, the plaintiff must satisfy two basic requirements for a divorce action:

  1. Jurisdiction
  2. Grounds.

First, jurisdiction means you or your spouse must have lived or been ordinarily a resident in Alberta at least 1 year before divorce proceedings can be commenced. If you have not, you may want to begin your divorce action in the province where you are within the residency requirement.

Second, you must have grounds to show the breakdown of the marriage. You can prove that a breakdown of your marriage has occurred by proving 1 of the following situations:

  • You have lived separate and apart from your spouse for at least 1 year; or
  • Your spouse has committed adultery; or
  • Your spouse treated you with mental or physical cruelty.

To get a divorce on grounds of separation, the divorce action may be started after you and your spouse separate. The Divorce Judgment will be issue after the 1-year separation requirement. You or your spouse must show the Court that you have lived separate and apart for 1 year with the intention to withdraw from the marriage and not continue it. Separation usually means that you or your spouse has moved out of the home. However, it is possible to live physically apart for 1 year even though you live under the same roof. In this case, you would need to show the Court that you and your spouse occupied separate bedrooms; had no sexual relations; little, if any, communication; no domestic services duties for the other such as washing each other’s clothes; no meals eaten together; and no social activities together.

You and your spouse may decide to get back together after you separated. However, if you separated once again and decide to get a divorce, the time you spent together will effect the time you must wait to get a divorce on the 1-year separation ground. If you attempted reconciliation for less than 90 days, you can continue counting the time from the date on which you first separated. If you reconciled for more than 90 days, then you must begin counting from the date of the second separation. If you tried to get back together several times during a 90-day period and finally separate, you count the number of days and if less than 90 days you begin counting from date of the first separation.

The ground for adultery occurs when your spouse has sexual intercourse with another consenting person. You must prove adultery as the cause of marriage breakdown. Your spouse may admit to adultery although he or she cannot be forced to do so. The person with whom it was committed may also admit to it. If your spouse denies the grounds of adultery, evidence to support adultery must be that you or someone else actually saw your spouse and another person having intercourse. You should consult a lawyer with regard to what is acceptable as evidence of adultery. If you are the one who committed adultery, you cannot use adultery as proof of marriage breakdown. The plaintiff must be the one to complain of the offence.

Mental or physical cruelty is also proof of the marriage breakdown. You must prove both that the conduct of your spouse was cruel and living together was made unbearable. The Court uses certain guidelines to determine whether there is sufficient evidence of mental cruelty. If, for example, your spouse continually insults you or refuses to talk to you and you suffer a nervous breakdown or deterioration in your health, this may be sufficient to prove mental cruelty. If your spouse has physically assaulted you, you may need medical evidence of the abuse. Such evidence, however, is rarely required if your spouse does not contest the action. You cannot use cruelty as proof of marriage breakdown if you are the one who caused the suffering. This area of the law is complex, and you are advised to get legal advice as to whether your spouse’s conduct towards you actually constitutes mental or physical cruelty.

In some situations you may not be granted a divorce. The Court may find that the circumstances surrounding your divorce proceedings do not entitle you to a Divorce Judgment. Circumstances or bars to divorce include the following:

  • Collusion: Collusion is where you make up a story to obtain a divorce. You cannot, for example, admit to adultery when adultery was never committed.
  • Connivance: Connivance is to encourage your spouse’s behaviour or to stand idly by and allow it to happen. For example, you cannot encourage or knowingly allow your spouse to commit adultery.
  • Condonation: Condonation is when you forgive your spouse for his or her behaviour and continue the marriage. If you forgive your spouse for an act of adultery and allow the marriage to continue you have no grounds for divorce based on that particular act. The act of adultery would need to occur again after you forgave your spouse, but will not forgive them again.

In certain circumstances, the Court may grant a divorce even though there was an act of condonation or collusion. The Court would need to believe that it is in the public interest to grant your divorce.