Although nearly one-third of Canadian divorces are filed jointly by both spouses, fault divorce remains a valid but less common legal option. In cases involving adultery or cruelty, a spouse may bypass the standard one-year separation, though doing so requires clear evidence and a more complex legal process.
This guide outlines what a fault divorce is under Canadian law, how it differs from no-fault divorce, and whether pursuing fault is the right choice. We also explain how Bhardwaj+Co can help you navigate this process with clarity!
What Does a Fault Divorce Mean in Canada?
In Canada, a fault divorce is a legal process where one spouse alleges that the other caused the breakdown of the marriage through marital misconduct. While Canada’s divorce laws primarily follow a no-fault model (neither spouse needs to prove wrongdoing), fault-based grounds such as adultery are still legally recognized and used to obtain a divorce.
At Bhardwaj+Co., we guide clients through both no-fault and fault divorce proceedings with clarity and discretion. Whether you're facing complex evidence requirements or need to respond to contested allegations, we’re here to help you navigate the process effectively and protect your legal interests from the outset.
What Are the Legal Grounds for a Fault Divorce in Canada?
Fault-based grounds for divorce are specific forms of marital misconduct recognized under the Divorce Act.
Adultery
Voluntary sexual relations with someone other than a spouse during the marriage.
Legal Requirements
- Must be proven with convincing court documents, witness evidence, or admissions.
- Only the non-adulterous spouse can initiate divorce on this basis.
Procedural Notes
- Does not require a separation period.
- Allegations must meet legal thresholds to satisfy court procedures and avoid unnecessary court fees.
Cruelty
Includes both physical cruelty (e.g., domestic violence) and mental cruelty (e.g., emotional manipulation or degradation). For example:
- Repeated verbal abuse
- Threats or intimidation
- Psychological neglect impacting health and safety
Legal Threshold
- The conduct must make continued cohabitation intolerable.
- Requires thorough legal help and submission of evidence acceptable to judges within the relevant jurisdiction.
Other Rare or Exceptional Claims
While not primary grounds for filing, some spouses raise issues like:
- Abandonment (desertion without justification)
- Substance abuse (affecting the marital contract or family safety)
These are not explicitly recognized in statute but may support claims of irretrievable breakdown when linked to physical or mental cruelty.
What Is Not Considered a Legal Ground for Fault Divorce in Canada
While some behaviours may feel like a betrayal or cause deep emotional distress, not all of them qualify as grounds for divorce under Canadian divorce laws. Here are several situations that do not meet the legal threshold for a fault divorce:
- Falling out of love or general irreconcilable differences
- Lack of communication, affection, or intimacy (unless tied to proven mental cruelty)
- Workaholism or long working hours without abuse or neglect
- Unilateral decision-making or disagreements over parenting decisions
- Growing apart over time
- Religious or cultural differences, unless connected to actionable misconduct
- Mismatched values or goals
- Poor financial management, unless it rises to the level of financial abuse or domestic violence
- Lifestyle disagreements, such as social habits or hobbies
- Incompatibility in the bedroom, unless it results in cruelty or emotional harm
These may reflect real strain in a marital partnership, but Canadian family courts do not recognize them as standalone legal grounds for at-fault divorce. Instead, they fall under the umbrella of a no-fault divorce, where the spouses can file after living apart for at least one year.
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Fault vs. No-Fault Divorce in Canada
In Canada, couples can seek divorce under two distinct legal approaches: fault divorce and no-fault divorce. Each carries different procedural requirements, timelines, and evidentiary burdens. Here's how they compare:
| Aspect | Fault Divorce | No-Fault Divorce |
| Grounds for Divorce | Adultery, physical or mental cruelty | Living separate and apart for at least one year |
| Burden of Proof | High – spouse must provide admissible evidence of wrongdoing | None – no need to prove marital misconduct |
| Legal Process | Involves contested court proceedings, possibly with witness testimony | Generally uncontested; simpler divorce process |
| Timeframe | May proceed faster if proven (no separation period) but often delayed by disputes | Must wait for the separation period to elapse |
| Complexity & Cost | More complex; higher legal fees and court fees | Less costly; fewer legal complications |
| Impact on Custody/Support | No direct impact on child custody, spousal support, or division of marital assets | Same – courts focus on best interests, not fault |
| Court Involvement | Greater judicial oversight, often in family court | Minimal if uncontested; may use online tools or simple filings |
| Prevalence in Canada | Less common; used in limited jurisdictions with sufficient grounds for filing | Most divorces in Canada are no-fault |
Legal Process and Challenges of Fault Divorce
Filing for a fault divorce in Canada involves significantly more complexity than a no-fault divorce. While it may eliminate the mandatory separation period, it introduces serious procedural, evidentiary, and financial challenges within the Canadian legal system.
Burden of Proof
- The spouse initiating the divorce petition must prove that their partner’s conduct, such as adultery or cruelty, directly led to the marriage breakdown.
- Proof must meet the legal standard set by the Divorce Act and be accepted by judges in courts.
Types of Evidence Typically Required
- Text messages, emails, or court documents
- Testimony from third-party witnesses or private investigators
- Medical or psychological reports (especially in cases involving mental cruelty)
- Documentation related to support issues, parenting orders, or past court orders
Complexity and Cost
- Fault divorces often involve highly contentious issues requiring significant family law services
- Greater involvement from a divorce lawyer, including strategy around defenses and legal remedies
- Additional expenses from court fees, expert reports, and potential delays due to disputed facts
- Rare cases may involve private judges or even international divorces where one party resides in a foreign country
At Bhardwaj+Co., we help clients navigate the high-stakes terrain of fault divorce, preparing strong legal arguments, managing procedural obligations, and protecting your interests at every stage, from initiating your claim to obtaining your certificate of divorce.
Does Fault Affect the Outcome of a Divorce in Canada?
Proving fault has limited legal effect on the final outcomes of a divorce. Despite common misconceptions, a spouse’s misconduct generally does not impact the following:
Areas Unaffected by Fault
- Child Custody: Decisions are based on the child’s best interests, not parental behaviour during the marriage breakdown.
- Spousal Support and Child Support: Awards are calculated based on financial need, contribution, and ability to pay, not fault.
- Division of Property: Governed by provincial marriage law, including any existing separation agreement or pre- and postnuptial agreements.
Important Considerations
- Proving fault rarely changes financial or parenting outcomes, but often increases legal proceedings and use of court system resources.
- Pursuing fault may appear emotionally satisfying, but it rarely affects legal rights or legal obligations.
- The process can delay resolution, increase legal fees, and ultimately affect taxpayer dollars through prolonged use of the divorce court.
5-Step Guide on How to Get Full Custody of Your Child in Alberta
Is Pursuing a Fault Divorce in Canada Worth It?
Choosing to pursue a fault divorce in Canada is a serious legal decision, one that involves weighing both emotional motivations and practical outcomes. While the law allows for fault-based grounds like adultery and cruelty, pursuing this route is often more complex, time-consuming, and costly than a no-fault divorce.
When It May Be Worth Pursuing Fault
- You need to divorce immediately, and cannot wait for the one-year separation period required for no-fault divorce.
- Clear, admissible evidence of marital misconduct exists (e.g., texts, witness testimony, medical records).
- The opposing spouse is uncooperative, or you anticipate they may delay or contest the divorce unfairly.
- Strategic legal considerations may arise, such as influencing parenting orders or enforcing a separation agreement tied to misconduct.
When It May Not Be Worth It
- You lack sufficient evidence to meet the court’s burden of proof.
- You’re primarily motivated by emotion or a desire to assign blame.
- You seek changes to child custody, spousal support, or property division, which the court generally does not base on fault.
- You wish to minimize legal fees, emotional stress, or court system delays.
How Bhardwaj+Co. Can Help
At Bhardwaj+Co., we provide honest, strategic guidance during your initial family law consultation. We help you evaluate whether a fault-based divorce aligns with your legal goals and available evidence, or whether a no-fault approach may lead to a faster, more cost-effective resolution. Our experienced family lawyers will protect your rights at every stage, whether in court or through negotiated settlements.
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Bhardwaj+Co.: Trusted Legal Representation Across Alberta
At Bhardwaj+Co., we are a multilingual, full-service family and litigation firm committed to delivering practical legal solutions across Alberta. With decades of experience in family law, divorce, custody, support, and immigration matters, we offer accessible, flat-fee consultations and strategic representation tailored to your unique situation.
Whether you're pursuing a no-fault separation or navigating the complexities of a fault-based divorce, we’re here to protect your rights, guide you through the legal process, and help you move forward with confidence!