Abandonment: Can my Spouse be Charged with Abandonment?
The short answer? No.
It doesn’t matter if you are married or common-law, if your spouse “abandons” you, they really are not doing anything legally wrong. While it may feel morally wrong, your spouse isn’t breaking the law and they aren’t going to be punished for it.
A Little Legislative History
“No-fault” divorce (meaning neither spouse has to prove the other did something “wrong”) became law in Canada in 1968 when the Divorce Act was amended to allow for a divorce if the spouses had been separated for at least three years. Prior to 1968, the only grounds for divorce in Canada were adultery or cruelty.
Fast forward to 1986, and the Divorce Act was further amended by reducing the separation period to one year (instead of three), thus making it easier (quicker) to get a divorce.
Change Your Narrative
Rather than framing it as “abandonment” if your spouse walks out on you, it is a “breakdown of the marriage”. The Divorce Act permits a court to grant a divorce on the ground that there has been a breakdown of the marriage. In order to show there has been a breakdown of the marriage, you need to establish one of the following three grounds:
The spouses have lived separate and apart for at least one year; or
One of the spouses committed adultery, or
One of the spouses treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
By far the most common ground for divorce is “the spouses have lived separate and apart for at least one year”. This doesn’t mean you need to wait one full year before you can start your divorce, it simply means that it must be one full year from the date of separation to the date your divorce is granted by the court. So if your spouse leaves you on October 1, 2018, you can start the divorce process (ie. paperwork) any time after that date, but your divorce will not be “final” until October 1, 2019 at the earliest.
So how is the court involved if you separate?
If you’re married, you can file for a divorce as well as other relief (e.g. property division, spousal support). If you’re not married, you may still have to go to court to resolve issues related to your separation.
But court is not required, other than for the divorce order itself.
The divorce order legally ends your marriage and allows you to remarry. You can resolve all other issues outside of court through negotiation or other alternative dispute resolution options (e.g. mediation). If you’ve recently separated and your spouse is willing to negotiate an amicable resolution, a separation agreement can help keep you both out of court. If you would like to learn more about negotiating a separation agreement, please get in touch.