The Plaintiff in a Divorce Proceeding

The topics in the Dial-A-Law series provide general information on legal issues within the Province of Alberta. The purpose of this topic is to inform you of your legal rights and responsibilities. This is not legal advice. If you require legal advice, you should contact a lawyer.

This topic will discuss the plaintiff’s role in a divorce proceeding.

The Plaintiff

The plaintiff in a divorce proceeding is the spouse who begins the divorce proceeding.  The defendant is the spouse you are divorcing – they may defend against the divorce action, or they may not.

The Divorce Act is a Federal Act, which applies across Canada. The requirements and procedures for divorce are the same for every province.

 

Requirements for Divorce

To start a divorce action, the plaintiff must satisfy two basic requirements for a divorce action; (1) they must be within the jurisdiction and (2) they must have the necessary grounds for divorce.

Jurisdiction for Divorce

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

Grounds for Divorce

You must have grounds to show the breakdown of the marriage. You can prove that a breakdown of your marriage has occurred by proving any of the following situations;

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

(a) Separation

To get a divorce on grounds of separation, the divorce action may be started after you and your spouse separate for 1 year. 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.  A Divorce Judgment can only be issued after the 1 year of separation.

Generally, separation means that you, or your spouse, have moved out of the shared home. However, it is possible to be separated for 1 year even though you both live under the same roof. If you and your spouse have remained under the same roof, to show the Court that you and your spouse are separated, you can provide evidence that you;

  • Occupied separate bedrooms;
  • Had no sexual relations;
  • There was little, if any, communication between the two of you;
  • There were no domestic services done for the other (such as washing each other’s clothes);
  • No meals eaten together; and
  • No social activities were attended together.

During the 1 year separation period, you and your spouse may decide to get back together. This means that the 1 year separation period will restart when you separate again.

If you and your spouse attempted a compromise for less than 90 days, you can continue counting the time from the date on which you first separated. If you settled 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 90 days and finally separate, then you must count the number of days. If less than 90 days, you begin counting from the date of the first separation.

(b) Adultery

The ground for adultery occurs when one spouse has sexual intercourse with another consenting person. This is sometimes known as ‘cheating’.  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 that adultery occurred, evidence to support adultery occurred must be provided. This evidence can be that you, or someone else, saw your spouse and another person having intercourse. You should consult a lawyer about what is acceptable as evidence of adultery.

If you are the spouse who committed an act of adultery, you cannot use adultery as proof of marriage breakdown. The plaintiff must be the one to complain of the offense.

(c) Mental or Physical Cruelty

Mental or physical cruelty is proof of the marriage breakdown. You must prove both that (1) the conduct of your spouse was cruel and (2) living together was made unbearable.

The Court uses certain guidelines to determine whether there is sufficient evidence of mental cruelty. For example, if your spouse continually insults you or refuses to talk to you and you suffer a nervous breakdown or worsening 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 dispute (deny) 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 constitutes mental or physical cruelty.

Court’s Refusal of Divorce

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

  • (a) Collusion. This occurs where a spouse or spouses make up a story to obtain a divorce. For example, you cannot admit to adultery when adultery was never committed.
  • (b) Connivance. This occurs in the absence of any force (physical or mental cruelty). Connivance is the false intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse. (*page 130 of the James MacDonald and Ann Wilton 2016 Annotated Divorce Act)
  • (c) Condonation. Condonation is when you forgive your spouse for his or her behavior 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.  An act of adultery would need to occur again (after you forgave your spouse) to be a ground of divorce.

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.

Dial-A-Law is a Calgary Legal Guidance public service project funded in part by the Alberta Law Foundation.