Since Canada has no-fault divorce, the only ground for a divorce in the Divorce Act is marriage breakdown. The Act says you can show your marriage has broken down if any one of the following criteria applies to you and your spouse.
- You have been living apart for one year or more.
- Your spouse has been physically or mentally cruel to you.
- Your spouse has committed adultery.
That second condition could apply if your spouse is suffering from an addiction. While alcoholism is the most common, there has been a rise in cannabis addiction across Canada since it was legalized. According to Statistics Canada, nearly five per cent of cannabis users (299,500 people in 2023) “were considered to have impaired control over their use of cannabis. This type of impairment puts an individual at risk of developing a cannabis use disorder (sometimes called addiction).”
Other common addictions include prescription drugs such as painkillers or sedatives, or an addiction to street drugs such as fentanyl, cocaine or meth.
Having a spouse who is an addict can create a myriad of problems including financial instability, emotional distress and even physical harm. Overcoming an addiction is difficult and they may be unwilling to take part in a treatment program. If children are involved, their welfare could be endangered by your spouse’s erratic behaviour.
If you are experiencing cruelty from your spouse or they are impaired by addiction, you may want to seek a divorce. But proving abuse or addiction is not a simple process, which is why it is recommended you seek legal advice as soon as possible.
The definition of cruelty
According to the Department of Justice (DoJ), family violence is any action that is violent or threatening. It can also be a pattern of coercive and controlling behaviour that causes a family member to fear for their safety or the safety of another person.
Generally speaking, cruel behaviour has to be ongoing to be considered grounds for divorce, meaning that the occasional episodes of unkindness will not suffice. And if you have condoned the cruelty by continuing to live with your spouse, the court may refuse to grant you a divorce.
According to the DoJ, the Divorce Act lists factors that judges need to consider when assessing the impact of family violence. They include:
- the nature, seriousness and frequency of the abuse;
- the risk of harm to the child; and
- whether the person engaging in the violence has taken any steps to remedy their behaviour, such as completing a parenting course.
Types of abuse
Abuse can take many under the Divorce Act. According to the DoJ, those include:
- Physical abuse, such as punching, slapping, kicking, shoving, choking, hair-pulling or locking someone in a confined space.
- Sexual abuse, such as touching someone sexually without their consent, making someone watch pornography or encouraging a child to touch themselves sexually.
- Threats to kill or injure another person.
- Harassment and stalking, in person or online.
- Failing to provide the necessities of life, especially to children or those who are suffering physical or mental impairments.
- Psychological abuse, such as constantly criticizing someone or controlling their time or who they are allowed to interact with.
- Financial abuse, which could take the form of not allowing someone to access a shared bank account or incurring debts in their name without their knowledge.
- Threats to kill or harm an animal or damage property, or actually harming an animal or damaging property.
Proving abuse within a marriage
For a judge to take family violence into account when deciding on whether to grant a divorce, there must be proof. That is often difficult since more family interactions are in private.
However, here are some examples of what evidence you can obtain:
- If a call to 911 was made after an abusive episode, a family lawyer may be able to get a transcript.
- Written statements or testimony from friends or family members who have witnessed the abuse or whom you confided in.
- Any photos of injuries such as bruises or torn clothing
- Recordings of abusive incidents, which can sometimes be made surreptitiously on a cellphone.
- Hospital or medical records, in cases where you had to seek treatment after an abusive episode.
- A journal that documents when the abuse occurred and the form it took.
Proving addiction within a marriage
Proving your spouse is an addict can be difficult, especially if they are in denial or not willing to seek treatment. Since addiction issues often lead to abuse, the evidence to prove both issues is similar.
Types of proof include:
- A police report if your spouse has been arrested for impaired driving or another charge related to their addiction.
- Written statements or testimony from friends or family members who have witnessed your spouse in an impaired condition on several occasions.
- A journal that documents when your spouse was impaired by addiction and how that affected your family.
According to the article “Drug use prevalent, but hard to prove in family law,” the Drug & Alcohol Testing Association of Canada (DATAC) states that proving drug abuse with testing can be difficult in divorce cases. One reason for that is that there are “concerns over the accuracy of drug tests in Alberta.”
In the case of cannabis, the article explains products can be purchased online to mask the amount of THC in the person’s blood before they undergo a drug test.“In contrast to cases related to alcohol abuse, where it is possible to install a breathalyzer test in the accused person’s vehicle, the same cannot be done for cannabis use,” the DATAC notes.
Call us for assistance
It can be frightening to live in a home where your spouse is abusive or suffering from an addiction. If your safety or the safety of your children is threatened, the best move may be to move away and file for divorce, but speak to a lawyer at Demas Schaefer first. If we can prove your spouse is abusive and/or an addict, that may be grounds for a divorce. But such serious allegations cannot be made lightly so we need to confirm there is evidence to support these claims.
We have represented clients in Edmonton, Leduc, Wetaskiwin, Sherwood Park, Spruce Grove, St. Albert, Red Deer, Provost, Grande Prairie, Peace River, Edson, Hinton and Cold Lake. Contact us for a free 15-minute telephone or video consultation to see how we can assist you.