Divorce (3:IV) - Revision history

LSLAP: /* 1. Adultery: s 8(2)(b)(i) */

2025-11-10T19:19:42Z

1. Adultery: s 8(2)(b)(i)

← Older revision		Revision as of 19:19, 10 November 2025
Line 85:		Line 85:
	=== 1. Adultery: s 8(2)(b)(i) ===		=== 1. Adultery: s 8(2)(b)(i) ===

	Adultery is voluntary sexual intercourse between a married person and someone other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (''[https://canlii.ca/t/1llw5 P. (S.E.) v. P. (D.D.)]'', 2005 BCSC 1290 (CanLII)) ). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see ''[https://canlii.ca/t/gd8mn Adolph v. Adolph]'', 1964 CanLII 843 (BC CA)). Proof can come in the form of an affidavit from one or both of the adulterers.		Adultery is voluntary sexual intercourse between a married person and someone other than their spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (''[https://canlii.ca/t/1llw5 P. (S.E.) v. P. (D.D.)]'', 2005 BCSC 1290 (CanLII)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see ''[https://canlii.ca/t/gd8mn Adolph v. Adolph]'', 1964 CanLII 843 (BC CA)). Proof can come in the form of an affidavit from one or both of the adulterers.

	The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below).		The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance, see below).

	=== 2. Physical or Mental Cruelty: s 8(2)(b)(ii) ===		=== 2. Physical or Mental Cruelty: s 8(2)(b)(ii) ===

LSLAP at 16:48, 10 November 2025

2025-11-10T16:48:27Z

← Older revision		Revision as of 16:48, 10 November 2025
Line 1:		Line 1:
	{{REVIEWED LSLAP \| date= November 8, 2025}}}		{{REVIEWED LSLAP \| date= November 8, 2025}}
	{{LSLAP Manual TOC\|expanded = family}}		{{LSLAP Manual TOC\|expanded = family}}

LSLAP at 16:48, 10 November 2025

2025-11-10T16:48:03Z

← Older revision		Revision as of 16:48, 10 November 2025
Line 1:		Line 1:
	{{REVIEWED LSLAP \| date= ~~June 23~~, ~~2024~~}}		{{REVIEWED LSLAP \| date= November 8, 2025}}}
	{{LSLAP Manual TOC\|expanded = family}}		{{LSLAP Manual TOC\|expanded = family}}

LSLAP at 16:27, 10 November 2025

2025-11-10T16:27:29Z

← Older revision		Revision as of 16:27, 10 November 2025
Line 253:		Line 253:
	=== 4. Other Resources ===		=== 4. Other Resources ===
	See '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet \| Section II Part B: Resources on the Internet]]''' above for more services and information.		See '''[[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet \| Section II Part B: Resources on the Internet]]''' above for more services and information.


	{{LSLAP Manual Navbox\|type=chapters1-7}}		{{LSLAP Manual Navbox\|type=chapters1-7}}

LSLAP at 16:27, 10 November 2025

2025-11-10T16:27:20Z

LSLAP: /* 2. 90-Day Reconciliation Period */

2025-11-10T16:26:00Z

2. 90-Day Reconciliation Period

← Older revision		Revision as of 16:26, 10 November 2025
Line 71:		Line 71:
	#the aggregate total length of reconciliations exceeds 90 days,		#the aggregate total length of reconciliations exceeds 90 days,

	then the time for calculating the one-year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s. 8(3)(b)(ii)).		then the time for calculating the one-year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s 8(3)(b)(ii)).

	=== 3. Living Under the Same Roof ===		=== 3. Living Under the Same Roof ===

LSLAP: /* 2. 90-Day Reconciliation Period */

2025-11-10T16:25:49Z

2. 90-Day Reconciliation Period

← Older revision		Revision as of 16:25, 10 November 2025
Line 68:		Line 68:
	Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:		Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:

	~~:1)~~ the length of any reconciliation attempt exceeds 90 days, or		#the length of any reconciliation attempt exceeds 90 days, or
	~~:2)~~ the aggregate total length of reconciliations exceeds 90 days,		#the aggregate total length of reconciliations exceeds 90 days,

	then the time for calculating the one-year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s. 8(3)(b)(ii)).		then the time for calculating the one-year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s. 8(3)(b)(ii)).

LSLAP: /* 2. A Valid Marriage: Proof of Marriage */

2025-11-10T16:25:34Z

2. A Valid Marriage: Proof of Marriage

← Older revision		Revision as of 16:25, 10 November 2025
Line 41:		Line 41:

	Section 52(1) of the [https://canlii.ca/t/56c3t ''Evidence Act''], RSBC 1996, c 124 states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following can serve as evidence that the ceremony took place:		Section 52(1) of the [https://canlii.ca/t/56c3t ''Evidence Act''], RSBC 1996, c 124 states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following can serve as evidence that the ceremony took place:
	~~:a)~~ the evidence of a person present at the ceremony (less common);		#the evidence of a person present at the ceremony (less common);
	~~:b)~~ or a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable).		#or a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable).

	'''Note''': A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.		'''Note''': A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.

LSLAP: /* 1. Jurisdiction */

2025-11-10T16:25:22Z

1. Jurisdiction

← Older revision		Revision as of 16:25, 10 November 2025
Line 32:		Line 32:
	If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (''DA'' s. 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:		If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (''DA'' s. 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:

	~~:a)~~ If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present;		#If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present;
	~~:b)~~ If no parenting order, the court in the province the spouses last maintained habitual residence in common retains jurisdiction; and		#If no parenting order, the court in the province the spouses last maintained habitual residence in common retains jurisdiction; and
	~~:c)~~ In any other case, the court that the Federal Court determines most appropriate retains jurisdiction.		#In any other case, the court that the Federal Court determines most appropriate retains jurisdiction.

	Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.		Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.

	=== 2. A Valid Marriage: Proof of Marriage ===		=== 2. A Valid Marriage: Proof of Marriage ===

LSLAP: /* 5. Mediation */

2025-11-10T00:22:50Z

5. Mediation

← Older revision		Revision as of 00:22, 10 November 2025
Line 195:		Line 195:
	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 \| Section II Part 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.		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 \| Section II Part 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.

	The ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (s 224). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 8), family justice counsellors (Section 10), and parenting coordinators (Part 2, Division 3).		The ''FLA'' favours out of Court resolution of issues, and even gives courts the authority to refer parties to counselling and mediation (''FLA'', s 224). It also formally recognizes the role of and duties of family dispute resolution professionals (Section 8), family justice counsellors (Section 10), and parenting coordinators (Part 2, Division 3).

	=== 6. Collaborative Divorce ===		=== 6. Collaborative Divorce ===

← Older revision		Revision as of 16:27, 10 November 2025
Line 24:		Line 24:
	=== 1. Jurisdiction ===		=== 1. Jurisdiction ===

	To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s. 3(1)), unless the below exception applies. A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.		To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (''DA'', s 3(1)), unless the below exception applies. A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.

	''[https://canlii.ca/t/539nk An Act to Amend the Civil Marriage Act]'', SNB 2013, c 25 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 in their country of residence.		''[https://canlii.ca/t/539nk An Act to Amend the Civil Marriage Act]'', SNB 2013, c 25 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 in their country of residence.

	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 February 01, 2024, there is no requirement that the first proceeding be discontinued within a certain amount of time to instead move forward with the second proceeding.		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 February 01, 2024, there is no requirement that the first proceeding be discontinued within a certain amount of time to instead move forward with the second proceeding.

	If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (''DA'' s. 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:		If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (''DA'' s 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:

	#If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present;		#If either proceeding includes parenting order application, the court that retains jurisdiction is the court in the province in which the child is habitually present;
Line 155:		Line 155:
	Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to agree on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting, and it may be possible to overturn the contract.		Each spouse must be aware of the potential influence of any agreement on future expectations, and the legal implications of the agreement on questions of ownership and title in family property. Each spouse should have independent legal advice, even in cases where the parties seem to agree on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting, and it may be possible to overturn the contract.

	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''.		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''.

	In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.		In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.
Line 175:		Line 175:
	=== 3. Alteration of Effective Date of Divorce ===		=== 3. Alteration of Effective Date of Divorce ===

	Under s. 12 of the ''DA'', a divorce takes effect on the 31st day after the day on which the judgment granting the divorce is rendered. The 31 days allow for the appeal period to expire. The Court may order that the divorce take effect before this if it is of the opinion there are special circumstances, and the spouses agree that no appeal from the judgment will be taken. The impending birth of a child and remarriage are generally '''not''' considered compelling reasons to shorten the appeal period. However, one may file an appeal waiver to remarry sooner.		Under s 12 of the ''DA'', a divorce takes effect on the 31st day after the day on which the judgment granting the divorce is rendered. The 31 days allow for the appeal period to expire. The Court may order that the divorce take effect before this if it is of the opinion there are special circumstances, and the spouses agree that no appeal from the judgment will be taken. The impending birth of a child and remarriage are generally '''not''' considered compelling reasons to shorten the appeal period. However, one may file an appeal waiver to remarry sooner.

	=== 4. Support Order After Divorce Has Been Granted ===		=== 4. Support Order After Divorce Has Been Granted ===

	Under s. 2(1) of the current ''DA'' “spouse” means two persons who are currently married to each other or were formerly married to one another. As such, 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.'''		Under s 2(1) of the current ''DA'' “spouse” means two persons who are currently married to each other or were formerly married to one another. As such, 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.'''

	=== 5. Mediation ===		=== 5. Mediation ===
Line 216:		Line 216:
	=== 8. Divorce Law and First Nations People ===		=== 8. Divorce Law and First Nations People ===

	Special concerns arise in cases involving First Nations People registered under the ''[https://canlii.ca/t/5439p Indian Act]'', RSC 1985, c I-5. The Indian Act sets out guidelines for and definitions of Aboriginal people and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s. 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home because the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''[https://canlii.ca/t/231qm George v George]'', 1997 CanLII 14474 (BC CA)). Keep in mind that most provincial laws apply to Aboriginal people and reserve land unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. ''D.H. v H.M.'', [1999] SCJ No 22, and see ''[https://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60.		Special concerns arise in cases involving First Nations People registered under the ''[https://canlii.ca/t/5439p Indian Act]'', RSC 1985, c I-5. The Indian Act sets out guidelines for and definitions of Aboriginal people and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home because the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''[https://canlii.ca/t/231qm George v George]'', 1997 CanLII 14474 (BC CA)). Keep in mind that most provincial laws apply to Aboriginal people and reserve land unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for parenting time; see e.g. ''D.H. v H.M.'', [1999] SCJ No 22, and see ''[https://canlii.ca/t/51z8 Van de Perre v. Edwards]'', 2001 SCC 60.

	Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'', SC 2013, c. 20 applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46).		Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'', SC 2013, c. 20 applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46).