Difference between revisions of "Divorce (3:IV)"

{{REVIEWED LSLAP | date= August 10, 2022}}

[http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5387766&Language=E&Mode=1 ''An Act to Amend the Civil Marriage Act''] received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce where they live.   

There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days (divorce, corollary relief or variation), the court in which a divorce proceeding was commenced first has exclusive jurisdiction unless the first proceeding is discontinued (DA s 3(2)). As of March 1, 2021 there is no requirement that the first proceeding be discontinued within a certain amount of time in order to instead move forward with the second proceeding.

The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What has to be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (''Burr v Burr'', [1983] BCJ No 743).  

If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (''Cridge v Cridge'' (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and difficulty with the English language may qualify as reasons for continuing cohabitation.  

It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''.  

Under s 15 of the current ''DA'', for the purposes of child support, “spouse” means either of two persons a male or female who are married to each other (s 2(1)) and also includes “former spouse”. This means that a former spouse may be able to get a support order after the divorce has been granted.  

 

The amended ''DA'' has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change came into effect March 1, 2021.

 

A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation and  Family Court Services. The service is confidential and free. Family Justice Counsellors cannot deal with property and debt division.   

There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering practical training to new mediators (along with an experienced mentor mediator). See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]].  

Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation.  

Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]] for more information.

* Family Law Arbitration. See http://family.legalaid.bc.ca/visit/arbitrators for more information

All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. The cost of a simple, uncontested divorce begins at approximately $1,000 and up. Advise clients to use the [http://www.cbabc.org/for-the-public/lawyer-referral-service Lawyer Referral Service] (604) 687-3221 or 1-800-663-1919. The first half-hour will only cost $25, with the lawyer charging their standard rate thereafter.