Divorce Act

From Clicklaw Wikibooks

The Divorce Act, RSC 1985, c 3 (2nd Supp) is a federal law that you can find, along with other federal laws, at the website of the federal Department of Justice, or on CanLII, a free website for searching Canadian court decisions and legislationAn act; a statute; a written law made by a government. See "regulations.". Because of a constitutional rule called the doctrine of paramountcy, the Divorce Act is considered to be superior to the provincial Family Law Act. As a result, if you are entitled to ask for an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." under the Divorce Act about child supportMoney paid by one parent or guardian to another parent or guardian as a contribution to the cost of a child's living expenses. or spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., you probably should.

The Divorce Act only applies to married spouses, people who are or were married to each other by a marriage commissioner or a religious official licensed to perform marriages. If you are not legally married, the Family Law Act is the only game in town. Although the court may allow someone who isn't a spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." to apply under the Divorce Act for an order relating to custodyIn family law, an antiquated term used by the ''Divorce Act'' to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. See "access." of or accessUnder the ''Divorce Act'', the schedule of a parent's time with his or her children under an order or agreement. Access usually refers to the schedule of the parent with the least time with the child. See "custody." to a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority.", that person must get the court's permission first, and the spouses must have already started a court proceedingA legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit" or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order. between each other.

You must also be ordinarily resident in your province for at least one year before you can ask for an order under the Divorce Act. This means that you might have to delay filing for a divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of." if you've moved to a new province within the last year.

The Divorce Act refers to children as children of the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.". A child of the marriage is defined in s. 2(1) as:

A child of two spouses or former spouses who, at the materialIn law, something that is relevant, important. A material fact is a fact relevant to a claim or a defence to a claim. See "claim," "evidence," and "fact." time,
(a) is under the age of majorityThe age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant." and who has not withdrawn from their charge, or
(b) is the age of majority or over and under their charge but unable, by reason of illness, disabilityIn law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority." or other cause, to withdraw from their charge or to obtain the necessaries of life.

In other words, a child of the marriage is someone who is less than 19 years old, the age of majority in British Columbia, or who is 19 and older if the child cannot support him- or herself. Since only people qualifying as spouses are obliged to pay child support, the definition of child of the marriage is expanded in s. 2(2) to include stepparents:

For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes
(a) any child for whom they both stand in the place of parents; and
(b) any child of whom one is the parentIn family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "natural parent" and "stepparent." and for whom the other stands in the place of a parent

The Divorce Act covers these basic subjects:

  • divorce,
  • custody of and access to children,
  • child support, and
  • spousal support.

JP Boyd on Family Law provides extensive coverage of the Divorce Act, including a chapter on Divorce Act Basics.

Personal tools
Namespaces

Variants
Actions
Site
Tools
Contributors
Print/export