Divorce Act Basics

From Clicklaw Wikibooks

The federal Divorce Act is the legislationAn act; a statute; a written law made by a government. See "regulations." on marriage breakdown in Canada. It only applies to spouses who are married to each other or who used to be married to each other. It talks about how married spouses get divorced and when 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." orders from another country are recognized here. It also deals with the care of children after separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.", 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., and 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..

This section provides an overview of the Divorce Act. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in JP Boyd on Family Law. Use the search tool at the top of the page to find more information.

Contents

Introduction

Who does the Divorce Act apply to?

The Divorce Act is the main law on marriage breakdown in Canada. It applies to people who are or were married to each other, regardless of where they were married. If people in other kinds of relationships want orders about the care of children, child support, or spousal support and can't make an agreement, they must apply under provincial legislation. In British Columbia, that law is the Family Law Act.

If married spouses have 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., other people ― like grandparents, other family members, and children's other caregivers ― can use the Divorce Act to ask for orders about the care of the spouses' children, but they must get the court's permission first.

What does the Divorce Act cover?

The Divorce Act talks about:

  • divorce and foreign divorce orders,
  • 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 children,
  • 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 children,
  • paying child support,
  • paying spousal support, and
  • changing orders about custody, access, child support, and spousal support.

What is "corollary reliefIn court proceeding for divorce, this term refers to all relief claimed apart from the divorce order itself. For example, in a court proceeding for divorce and custody, the claim for custody is corollary relief. See "action" and "relief.""?

The Divorce Act describes issues about the care of children and support as "corollary relief." Corollary means "related to"; a court that is hearingIn law, any proceeding before a judicial official to determine questions of law and questions of fact, including the hearing of an application and the hearing of a trial. See "decision" and "evidence." a divorce proceedingIn law, the whole of the conduct of a court proceeding, from beginning to end, and the steps in between; may also be used to refer to a specific hearing or trial. See "action." can make orders about the care of children and support because those issues are related to the court's ability to make a divorce 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.".

What about annulmentA declaration by a judge that a marriage is invalid. The effect of such a declaration is to make it as if the marriage never occurred. See "ab initio," "declaration" and "marriage, validity of."?

When a marriage is annulled, the marriage is cancelled as if the couple had never been married at all. A marriage can be annulled if there is a problem with the legal requirements of the marriage ceremony or the legal capacity of the parties to marry.

The Divorce Act doesn't deal with the annulment of marriages, only divorce. Annulment is governed by the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts. The system of justice used in non-criminal cases in all provinces and territories except Quebec. and is nowhere near as easy to get as a divorce. The section on Marriage & Married Spouses in the Family Relationships chapter talks about when and how marriages are annulled.

When can a court proceeding under the Divorce Act start?

A court proceeding for a divorce order can only start when either 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." has lived in the province or territory where the proceeding is started for at least one year. As long as this requirement is met, a court proceeding can be started as soon as the spouses have separated. If both spouses have moved to new provinces, the court proceeding must wait until the one-year requirement is satisfied.

Which court can hear a proceeding under the Divorce Act?

If you are married and want to get divorced, you must start your court proceeding in the Supreme CourtNormally referred to as the "Supreme Court of British Columbia," this court hears most court proceedings in this province. The Supreme Court is a court of inherent jurisdiction and is subject to no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada.". Both the Provincial CourtA court established and staffed by the provincial government, which includes Small Claims Court, Youth Court and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. Small Claims Court, for example, cannot deal with claims larger than $25,000, and Family Court cannot deal with the division of family property or matters under the ''Divorce Act''. See "judge" and "jurisdiction." and the Supreme Court can hear court proceedings under the provincial Family Law Act. However, only the Supreme Court has the jurisdictionWith respect to judges, the authority of the court to hear an action and make orders; the limits of the authority of a particular judicial official; the geographic location of a court; the territorial limits of a court's authority. With respect to governments, the authority of a government to make legislation as determined by the constitution; the limits of authority of a particular government agents. See “constitution." to hear proceedings under the Divorce Act.

What happens if each spouse starts a court proceeding?

If each spouse starts a divorce proceeding, the court in which a proceeding was started first can continue to deal with that proceeding and the proceeding that was started last is considered to be dropped. This can be very important where spouses live in different provinces.

If the spouses somehow manage to start separate divorce proceedings on the same day, the proceedings are to be transferred to the Federal Court. The Federal Court is a trialThe testing of the claims at issue in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a determination of the parties' claims against one another that is final and binding the parties unless appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction." court like the Supreme Court of British Columbia but is common to all of Canada.

What about claims under the Family Law Act?

Both the Divorce Act and the Family Law Act talk about the care of children, child support, and spousal support. As a long a person is married, he or she can start a court proceeding about these issues under either law or under both laws at the same time. However, if orders about the division of propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed., personal protection orders and financial protection orders, the parentage of a child or the use of the family homeIn family law, the dwelling occupied by a family as their primary residence. See "family property" and "real property." are required, a claimThe assertion of a legal right to an order or to a thing; the remedy or relief sought by a party to a court proceeding. must be under the Family Law Act; see the section Family Law Act Basics for more information.

Child support

The rules about child support are almost the same between the two laws, except that it can be easier to get child support from a stepparentThe spouse of a person who has children from a previous relationship. A stepparent may qualify as a "parent" for the purposes of issues relating to child support and the care and control of a child under both the ''Divorce Act'' and the ''Family Law Act''. See "parent" and "spouse." under the Family Law Act. The Child Support chapter talks about child support and when stepparents can be required to pay child support.

Spousal support

The rules about spousal support are very similar between the two laws, except that under the Family Law Act spousal support is also available to couples that aren't married to each other as long as they meet that actIntentionally doing a thing; a law passed by a government, also called "legislation" or a "statute." See "regulations."'s definition of "spouse."

There's no limit to when claims for spousal support can be brought under the Divorce Act. Under the Family Law Act, however, spouses who are entitled to ask for spousal support must begin a court proceeding for spousal support within two years of the divorce order, if the couple were married, or within two years of separation, if the couple wasn't married, or they will be out of time.

Children

The two laws are the most different in terms of how they talk about children. The Divorce Act talks about spouses who have custody and access. The Family Law Act talks about guardians who have parental responsibilitiesA term under the ''Family Law Act'' which describes the various responsibilities exercised by guardians in the care, upbringing and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "guardian." and parenting timeA term under the ''Family Law Act'' which describes the time a guardian has with a child and during which is responsible for the day to day care of the child. See "guardian.", and people who aren't guardians who have contactA term under the ''Family Law Act'' that describes the visitation rights of a person who is not a guardian with a child. Contact may be provided by court order or by the agreement among the child's guardians who have parental responsibility for determining contact. See "guardian" and "parental responsibilities.". I prefer how the Family Law Act deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents.

Because the two systems are so different, even though a married spouseA person who is legally married to another person as a result of a ceremony presided over by someone with the authority to conduct marriages. See "marriage" and "unmarried spouse." can make a claim under both laws, it's probably best to just pick one. It will be less confusing for the court and it will be less confusing for you.

The law about divorce

Why will the court make a divorce order?

Under s. 8(1) of the Divorce Act, the court can make a divorce order only if the spouses' marriage has broken down. Under s. 8(2), there are three reasons why a marriage may have broken down:

  • because the spouses have lived separate and apart for at least one year,
  • because one spouse has committed adulteryA married person's voluntary sexual intercourse with a person other than his or her spouse; playing the field; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of.", and the adultery hasn't been forgiven by the other spouse, or
  • because one spouse has treated the other with such crueltyIn family law, the physical, verbal, emotional or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the adulterous act. See "condonation" and "divorce, grounds of" that the spouses cannot continue to live together, and the cruelty hasn't been forgiven by the other spouse.

Separation

To get a divorce based on separation, the spouses must have lived separate and apart for one year.

The period of living separate and apart can pass while living under the same roof. However, the partnership quality of the relationship between the spouses — the "marriage-like" quality of the relationship — must have ended. In general, this means that the spouses have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under s. 8(3), the spouses can attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple lives together for a total period of more than 90 days, the clock resets, and a new one-year period doesn't start running until the last separation.

Adultery

To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that his or her spouse had sex with someone else, without his or her permission. The evidenceFacts or proof of facts presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay," and "testimony." the court will require isn't circumstantial evidenceEvidence that doesn't prove a fact but allows a court to logically infer a fact; indirect proof of a fact. For example, a fixed amount of money deposited every two weeks into someone's bank account may allow the court to infer that the person has a job even though there is no direct evidence of that person's employment., like a hotel receipt, but direct evidence, like a photograph or the spouse's admission.

You can't ask for a divorce because of your own adultery, only the adultery of your spouse.

Cruelty

To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that he or she was treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.

You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse.

The effect of forgiveness

The court will not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven, or condoned. If the bad behaviour has been condoned, the marital relationship hasn't broken down and the court can't make the divorce order.

When can the court make the divorce order?

If the claim for the divorce is based on separation, the spouse cannot apply for the divorce order until one year has passed from the date of separation. The one-year period doesn't run from the date the court proceeding is started; it runs from the date of separation.

The nice thing about claims based on adultery or cruelty is that the application for divorce can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order except because of the spouses' separation.

The process for getting a divorce order is talked about in detail in the Divorce section of the chapter Separation & Divorce.

What about child support?

The court may not make a divorce order unless it is satisfied that adequate arrangements have been made for child support. Section 11(1)(b) of the Divorce Act says that the court has the duty to:

to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made

What this means is that the court will usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreementA contract intended to resolve all or some of the issues outstanding following the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." in the amount that would normally be required by the Child Support Guidelines. However, the court may be prepared to consider other terms of an order or agreement that provide a direct or indirect benefit to the children in deciding whether the amount of support being paid is reasonable.

Information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

When is a divorce order effective?

Under s. 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because under s. 21(3) the deadline to make an appealAn application to a higher court for a review of the correctness of a decision of a lower court. A decision of a judge of the Provincial Court of British Columbia can be appealed to the Supreme Court of British Columbia. A decision of a judge of the Supreme Court can be appealed to the Court of Appeal for British Columbia. of a Divorce Act order is the 30th day after the order is made.

What's the legal effect of a divorce order?

A divorce order terminates a 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.". When a marriage is terminated, the parties stop being "spouses" and lose all of the obligations and benefits that come from being a spouse. A divorced person is free to marry again, but loses things like the right to claim a share of the other spouse's estateThe personal property and real property that a person owns or in which he or she has an interest, usually in connection with the prospect or event of the person's death., the right to coverage under the spouse's medical and dental benefits, the right to share in the spouse's future CPP and pension earnings, and the right to receive death benefits.

What if spouses wait to get a divorce order?

Getting a divorce is often a low priority for spouses and some spouses wait for many years before starting a court proceeding for divorce. This isn't unreasonable, and usually happens for one of three reasons:

  • the cost of getting a divorce can be too high,
  • other issues, like the care of children or the division of property and debt, take priority, or
  • a spouse's religion discourages or prohibits divorce.

However, there can be some complications.

No divorce without a divorce order

Firstly, no matter how long spouses wait to get divorced, they will always be married to each other until one of them dies or they finally get a divorce order. There's no such thing as an automatic divorce; the passage of time won't do it. You actually have to get that order.

New relationships

Secondly, separated spouses often move on with their lives, meet new people and get into new romantic relationships without having been divorced. There's nothing wrong with this and the new relationship won't stop the married person from getting a divorce when the time is finally ripe.

However, if it takes too long and a separated spouse moves in to live with someone new, it's entirely possible that the spouse can find him- or herself in a new spousal relationship without being divorced. Remember that under the Family Law Act people can become spouses without getting married.

Foreign divorce orders

Under s. 22 of the Divorce Act, a divorce order made outside of Canada will be recognized here, and be effective to determine a person's marital status here, as long as at least one of the spouses lived in the country that made the divorce order for at least one year before the divorce proceeding was started.

The law about children

Who is a childA person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."?

The Divorce Act talks about "children of the marriage." A child is a child of one or both spouses who is under the provincial 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.", or older but "unable to withdraw" from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.

Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders about children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions.

How are decisions about children made?

Section 16(8) of the Divorce Act says that the court should take "only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child" into account when making decisions about children.

The Divorce Act doesn't go into any further detail than this except to say, at s. 16(10), that:

the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This doesn't mean that it is always best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse as is consistent with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all.

Orders for custody and access

Under s. 16(1) of the Divorce Act, a spouse or "any other person" can apply to court for an order that he or she has custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission.

Access usually refers to the parenting schedule of someone who isn't a spouse or the parenting schedule of the spouse who sees the child for the least amount of time.

Sole custody and joint custodyA term used by the ''Divorce Act'' when both spouses have custody of a child, giving both the right to make parenting decisions concerning the child's health, welfare and upbringing but not necessarily requiring or implying that the spouses have equal or near-equal amounts of time with the child. See “access" and "custody."

Under s. 16(4), the court can order that one or more persons have custody of or access to a child.

  • When only one person has custody, that person has sole custody of the child.
  • When more than one person has custody, they together have joint custody of the child.

Joint custody does not mean that the spouses share the child's time equally or near-equally. Joint custody usually just means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing.

What rights does custody give?

A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis.

An order for joint custody gives each spouse custody of the children. In such cases the spouses need to and are expected to work together and cooperate in the raising of their children. The children may still spend more time, sometimes a lot more time, at one spouse's home than the other, but both spouses have the right to participate in making decisions about the children's care, welfare, and upbringing.

What rights does access give?

Access usually just refers to the schedule of a spouse's time with a child. More than this, however, under s. 16(5) of the Divorce Act, a spouse who has access also has:

the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

This provision doesn't apply to people who are not spouses and have access to the child under a Divorce Act order.

How are orders for custody and access enforced?

Orders for custody and access have effect throughout Canada, and are enforced under the laws of each province. In British Columbia, Divorce Act orders can be enforced by a spouse under the rules of courtThe guidelines governing the court process and the conduct of litigation generally. The rules of court are particular to each level of court. and the provincial Court Order Enforcement Act, and by a spouse and the Family Maintenance Enforcement Program under the provincial Family Maintenance Enforcement Act.

How are orders for custody and access changed?

Under s. 17(1), a spouse or another person can apply to change an order for custody or access, but someone who isn't a spouse has to first get permission from the court.

The legal test that must be met before the court changes an order for custody or access is at s. 17(5):

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

In other words, someone who wants to change an order must first show that there has been a change in circumstances. Then, when the court is deciding on a new order, it must consider the best interests of the child in light of that change.

The law about child support

Who is a child?

The Divorce Act talks about "children of the marriage." A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but "unable to withdraw" from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled or who are going to school full-time and are unable to support themselves.

Who is a spouse?

In the context of child support, "spouse" includes a spouse who is a 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." of a child and a spouse who "stands in the place of a parent" for a child. In other words, spouse includes spouses who are stepparents.

Who is required to pay child support?

Section 15.1(1) of the Divorce Act says that a court may "make an order requiring a spouse to pay for the support of any or all children of the marriage." The act doesn't say that it's parents who have to pay; it's spouses who have to pay, and "spouse" includes stepparents.

Who can ask for child support?

Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person will need to apply for the child support under the provincial Family Law Act.

How is the amount of child support calculated?

Child support is determined by the Child Support Guidelines. Most of the time, child support is simple to figure out by looking up the amount payable in the GuidelinesShort for the Child Support Guidelines, a regulation to the federal ''Divorce Act'', adopted by each province and territory except Quebec, that sets the amount of child support a parent or guardian must pay based on the person's income and the number of children involved. tables based on the payor’s income and the number of children support is being paid for. Child support can get more complicated when:

  • a child is 19 or older,
  • the payor has an income of more than $150,000 per year,
  • one or more children live mostly with each spouse, called split custodyA term used by the Child Support Guidelines to describe circumstances when one or more children live most of the time with each parent or guardian, resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount.",
  • the spouses share the children’s time equally or almost equally, called shared custodyA term used by the Child Support Guidelines to describe circumstances when a child's time is shared equally or almost-equally between his or her parents or guardians, often resulting in an amount of support that is different than the table amount. See "child support," "Child Support Guidelines" and "table amount.", or
  • the payment of the tables amount would cause "undue hardshipA term used by the Child Support Guidelines to describe circumstances when payment of the table amount of child support would cause financial difficulty for the payor or the recipient, potentially justifying an award of support in an amount different than the table amount. See "child support," "Child Support Guidelines" and "table amount."" to either the recipient of child support or the payor of child support.

More information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

How is child support paid?

Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques.

How are orders for child support changed?

Under s. 17(4) of the Divorce Act, the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid, such as an increase or a decrease in the payor's income, or a change in how the children's time is divided between the spouses.

When both spouses live in British Columbia

To change a British Columbia Divorce Act child support order when both spouses live here, the applicantA party who brings an application to the court for a specific remedy or relief. Usually refers to the party making an interim application, but in the Provincial Court can mean the person who starts a court proceeding. See also "court proceeding," "application respondent" and "interim application." must file a Notice of ApplicationA legal document required by the Supreme Court Family Rules to bring an interim application, setting out the relief claimed by the applicant, the grounds on which that relief is claimed, and the date on which the application will be heard. See "applicant," "grounds," "interim application" and "relief." in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

When a spouse lives outside of British Columbia

To change a British Columbia Divorce Act child support order when the respondentThe person against whom a claim has been brought by Notice of Family Claim. See “application” and “Notice of Family Claim." lives in another province, the applicant first applies here, in British Columbia, for a provisional order under s. 18.

If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to confirm the provisional order under s. 19.

The court at the confirmation hearing may:

  • confirm the provisional order,
  • confirm the provisional order with some changes,
  • refuse to confirm the provisional order, or
  • send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

The law about spousal support

Who is entitled to ask for spousal support?

Only spouses can ask for spousal support. Under s. 15 of the Divorce Act, "spouse" includes former spouses, spouses who have been divorced. There is no time limit on when a spouse or former spousal can ask for child support.

A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4):

In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including
(a) the length of time the spouses cohabited;
(b) the functions performed by each spouse during cohabitationLiving with another person, shacking up. Cohabitation in a "marriage-like relationship" is necessary to qualify as "spouse" under the ''Family Law Act''. See "marriage-like relationship" and "spouse."; and
(c) any order, agreement or arrangement relating to support of either spouse.

Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ask for spousal support, but being able to ask doesn’t mean they’ll get it. They must also show that they are entitled to spousal support.

How are the amount and duration of spousal support calculated?

When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called duration, is determined based on factors set out at s. 15.2(6):

An order [for spousal support] should
(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
(b) apportionIn family law, to divide equally, usually referring to the division of family property between spouses. See also "reapportion." between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligationA duty, whether contractual, moral or legal in origin, to do or not do something. See "duty." for the support of any child of the marriage;
(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and
(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The amount of spousal support to be paid and the duration that it should be paid for is often determined using the Spousal Support Advisory Guidelines. The Advisory GuidelinesShort for the Spousal Support Advisory Guidelines, an academic paper released by the Department of Justice that describes a variety of mathematical formulas that can be applied to determine how much spousal support should be paid and how long spousal support should be paid for, once a spouse is found to be entitled to receive support. The Advisory Guidelines is not a law. is not a law like the Child Support Guidelines and is not mandatory. The Divorce Act does not mention the Advisory Guidelines.

Is a spouse’s conduct taken into accountIn law, a lawyer's bill to his or her client or a statement; one person's recollection of events.?

Under the Divorce Act, the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.

How is spousal support paid?

Most of the time, spousal support is paid every month, usually on the first day of the month. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular basis. Spousal support is tax neutral when it is paid as a single lump sum.

The recipient of regular payments of spousal support must declare the support received in his or her income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from his or her taxable income, like how RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund.

Remember that taxes should be taken into account when figuring out spousal support. At a minimum, recipients should be reminded to put some money aside to pay their taxes.

How are orders for spousal support changed?

Under s. 17(4.1) of the Divorce Act, the court can change an order for spousal support if there has been a:

change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order

When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under s. 17(7), the same factors about amount and duration as it considered in making the original order.

When both spouses live in British Columbia

To change a British Columbia Divorce Act spousal support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

When a spouse lives outside of British Columbia

To change a British Columbia Divorce Act spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a provisional order under s. 18.

If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to confirm the provisional order under s. 19.

The court at the confirmation hearing may:

  • confirm the provisional order,
  • confirm the provisional order with some changes,
  • refuse to confirm the provisional order, or
  • send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

Resources and links

Legislation

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