Difference between revisions of "Divorce Act Basics"

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{{JP Boyd on Family Law TOC}}
{{JP Boyd on Family Law TOC}}


The federal ''[[Divorce Act]]'' is the legislation on marriage breakdown in Canada. It only applies to spouses who are married to each or who used to be married to each other. It talks about how married spouses get divorced and when divorce orders from another country are recognized here. It also deals with the care of children after separation, child support and spousal support.
The ''[[Divorce Act]]'' is the law that deals with marriage breakdown in Canada. It only applies to people 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 divorce orders from another country are recognized here. It also talks about the care and parenting of children after separation, child support, and spousal support.


This page provides an overview of the ''Divorce Act.'' It is primarily written for justice system workers and legal advocates, but can be used by anybody.
This section provides a top to bottom overview of the ''Divorce Act'' in an easy-to-read question and answer format. 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''.  


==Introduction==
==Introduction==
The very first Canadian ''[[Divorce Act]]'' didn't become law until 1968. It was overhauled and replaced with a new ''Divorce Act'' 17 years later, in 1985. The 1985 version of the act was updated in 1997 when the ''[[Child Support Guidelines]]'' were introduced, but it took another 24 years for the next major changes to the act to become law on 1 March 2021. These most recent changes to the ''Divorce Act'' were very important because they changed the way we talk about parenting children from terms like ''custody'' and ''access'', which were about the rights of parents and tended to encourage conflict between separated parents, to terms like ''decision-making responsibility'' and ''parenting time'', which are about the rights of children and encourage separated parents to cooperate.
Other important changes to the 1985 ''Divorce Act'' include:
*expanding the factors parents and the court must consider when deciding what is, and isn't, in the best interest of children,
*requiring parents to try to resolve family law problems other than by going to court,
*adding measures to help the court deal with family violence,
*creating a new way of dealing with parents who want to move away, with or without the children, after separation, and
*implementing a number of international treaties.
The full list of changes can be found in the legislation that changed the ''Divorce Act,'' the ''[http://canlii.ca/t/53rg6 Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act]''. (What a long name!) All of these changes are reflected in this resource.


===Who does the ''Divorce Act'' apply to?===
===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]]''.
The federal ''[[Divorce Act]]'' is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were legally married to each other, regardless of where they were married. If people in other kinds of relationships can't make an agreement and need to ask the court for orders about parenting children, child support, or spousal support, they must apply under provincial legislation. In British Columbia, that law is the ''[[Family Law Act]]''.


If married spouses have started a court proceeding, 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.
If married spouses have started a court proceeding under the ''Divorce Act'', other people — including grandparents, other family members, and children's other caregivers — can use the ''Divorce Act'' to ask for orders for contact with the spouses' children, but they must get the court's permission first.


===What does the ''Divorce Act'' cover?===
===What issues does the ''Divorce Act'' cover?===


The ''[[Divorce Act]]'' talks about:
The ''[[Divorce Act]]'' talks about:


*divorce and foreign divorce orders,  
*divorce and foreign divorce orders,
*custody of children,  
*decision-making responsibility for children,
*access to children,  
*parenting time or contact with children,
*paying child support,  
*moving away after separation, with or without children,
*paying spousal support, and
*paying and receiving child support,
*changing orders about custody, access, child support and spousal support.
*paying and receiving spousal support, and
*changing orders about decision-making responsibility, parenting time, contact with children, child support, or spousal support.


====What is "corollary relief"?====
Orders about decision-making responsibility and parenting time are called "parenting orders."


The ''[[Divorce Act]]'' describes issues about the care of children and support as "corollary relief". ''Corollary'' means "related to"; a court hearing a divorce proceeding can make orders about the care of children and support because those issues are related to the court's ability to make a divorce order.
====What is corollary relief?====
 
You may have heard the term "corollary relief" used about court proceedings under the ''[[Divorce Act]]''. ''Corollary'' means something that is related to or a consequence of something else. The primary subject matter of the ''Divorce Act'' is divorce. The other orders available under the act, about parenting children, child support, and spousal support, all stem from the court's ability to make a divorce order. The court's power to make these orders is "corollary" to the court's power over divorce, and orders about parenting children, child support, and spousal support are sometimes called ''corollary relief'' or ''corollary orders''.


====What about annulment?====
====What about annulment?====


When a marriage is ''annulled'', the marriage is cancelled as if the parties 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.  
When a marriage is ''annulled'', the marriage is cancelled as if the couple had never been married at all. A marriage can sometimes 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 law and is nowhere near as easy to get as a divorce. The [[Married Spouses]] page talks about when and how marriages are annulled.
The ''[[Divorce Act]]'' doesn't deal with the annulment of marriages, only divorce. Annulment is governed by the common law and is nowhere near as easy to get as a divorce. The section on [[Married Spouses and the Law on Marriage]] in the [[Family Relationships]] chapter talks about when and how marriages can be annulled.


===When can a court proceeding under the ''Divorce Act'' start?===
===When can a court proceeding under the ''Divorce Act'' start?===


A court proceeding for a divorce order can only start when either spouse has lived in the province 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.
A court proceeding for a divorce order can only start when one of the spouses has lived in the province 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. There's no waiting period.
 
If you have recently moved to a new province, you have three choices. You can wait until you have lived in your new province to start a court proceeding under the ''[[Divorce Act]]'' in the court of your new province. You can start a court proceeding in the province where your spouse lives, as long as they have lived in that province for at least one year. Or, you can start a court proceeding under the family law legislation in your new province and wait until you've lived there one year to add a claim under the ''Divorce Act'' to the court proceeding.


===Which court can hear a proceeding under the ''Divorce Act''?===
===Which court can hear a proceeding under the ''Divorce Act''?===


Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial ''[[Family Law Act]]''. However, only the Supreme Court has the jurisdiction to hear proceedings under the ''[[Divorce Act]]''. If you are married and want to get divorced, you must start your court proceeding in the Supreme Court.
If you are married and want to get divorced, you must start your court proceeding in the Supreme Court. Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial ''[[Family Law Act]]''. However, only the Supreme Court has the jurisdiction to hear proceedings under the ''[[Divorce Act]]''.


===What happens if each spouse starts a court proceeding?===
===What happens if we each start a court proceeding for divorce?===


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 each spouse has started a court proceeding under the ''[[Divorce Act]]'', the court in which the first court proceeding was started can continue to deal with that proceeding, and the court proceeding that was started second is considered to be cancelled. 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 trial court like the Supreme Court of British Columbia but is common to all of Canada.
If the two court proceedings were started on the same day and you can't agree on which court proceeding should be cancelled, you or your spouse <span class="noglossary">will</span> have to apply to the [https://www.fct-cf.gc.ca/en/home Federal Court] for a decision about which court proceeding should continue and which should end. The Federal Court will use these rules:
 
*if one of the proceedings asks for an order about parenting, the court proceeding that <span class="noglossary">will</span> continue is the proceeding in the province where the child normally lives,
*if neither proceeding asks for an order about parenting, the court proceeding that <span class="noglossary">will</span> continue is the proceeding in the province where you last lived together, and
*if neither proceeding asks for an order about parenting and neither province is the province where you last lived together, the court proceeding that <span class="noglossary">will</span> continue is the proceeding which the Federal Court considers to be "most appropriate."
 
The "most appropriate" court <span class="noglossary">will</span> usually be the court in the province in which most of the witnesses and evidence that are needed for the court proceeding are located.


===What about claims under the ''Family Law Act''?===
===What about claims under the ''Family Law Act''?===


Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' talk about the care of child, 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.
Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' talk about parenting children, child support, and spousal support. As long as a person is married, they can start a court proceeding about these issues under either law or under both laws at the same time. However, it's important to know that only the ''Family Law Act'' talks about orders dividing property and debt, personal protection orders and financial protection orders, declarations about the parentage of a child, or orders about the use of the family home. If orders like these are required, the court proceeding must include claims under the ''Family Law Act''.
 
See the section [[Family Law Act Basics|''Family Law Act'' Basics]] for more information about the ''Family Law Act''.


====Child support====
====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 stepparent under the ''[[Family Law Act]]''. The [[Child Support]] chapter talks about child support and when stepparents can be required to pay child support.
The rules about child support are almost the same between the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'', except that it can be a bit easier to ask a stepparent to pay child support 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====
====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.
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 adults who aren't married to each other as long as they meet that act'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, someone who is 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 <span class="noglossary">will</span> be out of time.


====Children====
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 <span class="noglossary">will</span> be out of time and can't make the claim at all.


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 responsibilities and parenting time, and people who aren't guardians who have contact. 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.
====Parenting children====


Because the two systems are so different, even though a married spouse can make a claim under both laws, it's probably best to just pick one. It <span class="noglossary">will</span> be less confusing for the court and it will be less confusing for you.
The ''[[Divorce Act]]'' talks about ''spouses'' who have ''decision-making responsibility'' and ''parenting time'', and people who aren't spouses who have ''contact''. The ''[[Family Law Act]]'' talks about ''guardians'' who have ''parental responsibilities'' and ''parenting time'', and people who aren't guardians who have ''contact''. Both laws also talk about what happens when a parent wants to move away with a child and how family violence impacts the court's decisions about parenting. The two laws are very similar to each other, although there are some small differences.


==The law about divorce==
==The law about divorce==
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===Why will the court make a divorce order?===
===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:
Under section 8(1) of the ''[[Divorce Act]]'', the court can make a divorce order only if the spouses' marriage has ''broken down''. Under section 8(2), there are three reasons why a marriage may have broken down:
 
*because the spouses have been ''separated for at least one year'';
*because one spouse has committed ''adultery'', and the adultery hasn't been forgiven, or
*because one spouse has treated the other with such ''cruelty'' that the spouses cannot continue to live together, and the cruelty hasn't been forgiven.


*because the spouses have lived separate and apart for at least one year,  
In Canada, most divorce claims are made on the basis of separation, even if there has been adultery or cruelty. It's important to know that you can't ask for a divorce because of your own adultery or cruelty, only the adultery or cruelty of your spouse.
*because one spouse has committed adultery, and the adultery hasn't been forgiven by the other spouse, or
*because one spouse has treated the other with such cruelty that the spouses cannot continue to live together, and the cruelty hasn't been forgiven by the other spouse.


====Separation====
====Separation====


To get a divorce based on separation, the spouses must have lived separate and apart for one year.  
To get a divorce based on separation, you and your spouse 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.
The period of living "separate and apart" can include time when you were both living in the same home. However, the "conjugal" quality of your relationship &mdash; the ''marriage-like'' quality of your relationship &mdash; must have ended. In general, this means that you must 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.
Under section 8(3) of the ''[[Divorce Act]]'', spouses can live together in an attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple wind up living together for a total period of more than 90 days, the clock resets and the spouses must wait for a new one-year period to end before asking for a divorce order.


====Adultery====
====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 evidence the court <span class="noglossary">will</span> require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission.
To get a divorce based on adultery, you have to be able to prove that:


You can't ask for a divorce because of your own adultery, only the adultery of your spouse.
*your spouse had sex with someone else without your consent, and
*you haven't forgiven your spouse for their adultery.
 
The evidence the court <span class="noglossary">will</span> require isn't ''indirect'', or "circumstantial" evidence, like a hotel receipt or a used condom, but ''direct'' evidence, like a photograph of the adultery while it is occurring or your spouse's admission to having committed adultery.
 
You can't ask for a divorce because of your own adultery. You can only ask because of the adultery of your spouse.


====Cruelty====
====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 <span class="noglossary">will</span> require must some from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.
To get a divorce based on cruelty, you have to be able to prove that:


You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse.
*you were treated with such mental or physical cruelty that it was impossible to continue living with your spouse, and
*you haven't forgiven your spouse for their cruelty.
 
The evidence of cruelty that the court <span class="noglossary">will</span> require must come from someone else, like a doctor or a psychologist. Your own evidence won't do.
 
You can't ask for a divorce because of your own cruelty. You can only ask because of the cruelty of your spouse.


====The effect of forgiveness====
====The effect of forgiveness====


The court <span class="noglossary">will</span> 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.
The court <span class="noglossary">will</span> 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 is considered not to have broken down, and the court won't make a divorce order.


===When can the court 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.
If the claim for the divorce is based on separation, neither spouse can 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 divorce claims based on adultery or cruelty is that the application for the divorce order can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and most of the time it is difficult to get the other person to explicitly agree that these grounds exist. Also, if more than a year has passed from the date of separation at the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for any reason other than because the spouses have been separated for over a year.
 
Lawyers rarely advise their clients to make claims for divorce based on adultery and cruelty, especially because a claim based on separation for one year is much less contentious, requires very little evidence to prove, and is much more straightforward.  


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 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 described in detail in the [[Getting Divorced]] section of the chapter [[Separating and Getting Divorced]].


===What about child support?===
===What about child support?===
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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:
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:


<blockquote><tt>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</tt></blockquote>
<blockquote><tt>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</tt></blockquote>


What this means is that the court <span class="noglossary">will</span> usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreement 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.
What this means is that the court <span class="noglossary">will</span> usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreement 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 an important benefit to the children in deciding whether the amount of support being paid is reasonable. This can sometimes be hard to prove.
 
Information about how child support is calculated is available in the [[Child Support]] chapter, particularly in the sections on the [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|Exceptions to the Guidelines]].


===When is a divorce order effective?===
===When is a divorce order effective?===


Under s. 12(1), a divorce order takes effect on the thirty-first day after the divorce order is made. That's because under s. 21(3) the deadline to make an appeal of a ''Divorce Act'' order is the thirtieth day after the order is made.
Under section 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because the deadline to make an appeal of a ''[[Divorce Act]]'' order is the 30th day after the order is made and the deadline for an appeal needs to pass, without an appeal being brought, before the spouses will be considered divorced.


===What's the legal effect of a divorce order?===
===What's the legal effect of a divorce order?===


A divorce order terminates a marriage. 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 estate, 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, the right to direct the other spouse's medical care and the right to receive death benefits.
A divorce order ends a marriage. When a marriage is terminated by divorce, 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.


===What if spouses wait to get a divorce order?===
===What if we 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:
Getting a divorce is often a low priority for married people 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,
*the cost of getting a divorce can be expensive,
*other issues, like the care of children or the division of property and debt, take priority, or
*other issues, like the parenting of children or the division of property and debt, take priority, or
*a spouse's religion discourages or prohibits divorce.
*a spouse's religion discourages or prohibits divorce.


However, there can be some complications.
However, delaying your divorce for too long can cause some complications...


====No divorce without a divorce order====
====No divorce without a divorce order====


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


====New relationships====
====New relationships====
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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.  
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.
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 themselves in a spousal relationship with their new partner without being divorced from their spouse. (Remember that under the ''[[Family Law Act]]'' people can become spouses without getting married.) If that relationship also doesn't work out, the spouse may wind up being obliged to pay spousal support to more than one other spouse!


===Foreign divorce orders===
===Are foreign divorce orders valid in Canada?===


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.
Under section 22 of the ''[[Divorce Act]]'', a divorce order made outside of Canada will be recognized in Canada, and be effective to determine a person's marital status in this country, as long as at least one of the spouses was "habitually resident" &mdash; normally lived &mdash; in the country that made the divorce order for at least one year before the court proceeding was started in that country.


==The law about children==
==The law about children==


===Who is a child?===
===Who is a "child of the marriage"?===
 
The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just saying "children." A child must qualify as a "child of the marriage" before the court can make orders about parenting that child or paying child support for that child.
 
A ''child of the marriage'' is a child of one or both spouses who:


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 majority, or older but "unable to withdraw" from the spouses' care of the spouses. In British Columbia, the age of majority is 19. In other provinces, like Alberta, the age of majority is 18.
*is under the provincial age of majority and has not "withdrawn from their charge," or
*is older than the age of majority but is unable to withdraw from the spouses' care "by reason of illness, disability or other cause."


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.
In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.
 
The bit about "other cause" where the act talks about adult children usually means that the child is going to college or university. There are a few court decisions where "other cause" has been interpreted to include circumstances in which the child is unemployed after reaching the age of majority and is "unable to withdraw" from their parents' charge because they can't find a job.


===How are decisions about children made?===
===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.  
Section 16 of the ''[[Divorce Act]]'' says that:
 
<blockquote><tt>(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.</tt></blockquote>
<blockquote><tt>(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.</tt></blockquote>
 
Section 16(3) provides a list of specific factors that the court should take into account when deciding what order is in the "best interests of the child." That list includes things like the child's wishes, needs, age, relationships with brothers and sisters, history of care, and cultural upbringing. The list also includes the presence of family violence in the child's life. When family violence is a concern, section 16(4) provides a list of additional factors to help the court decide how the violence has affected the child and the ability of the spouses to provide proper care for the child.
 
Section 16(6) provides further guidance to the court. It says that:
 
<blockquote><tt> in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.</tt></blockquote>
 
(In legislation, "shall" means ''must''.)
 
Although a court can make orders about the parenting of any children who are under the age of majority, in practice the court usually won't make orders involving older children who are close to the age of majority. Children who are that old are usually mature enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions.
 
===Who can ask for parenting orders and contact orders?===


The ''[[Divorce Act]]'' doesn't go into any further detail than this except to say, at s. 16(10), that:
Under section 16.1(1)(a) of the ''[[Divorce Act]]'', the people who can ask for orders about decision-making responsibility and parenting time are ''spouses'' as well as:


<blockquote><tt>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.</tt></blockquote>
<blockquote><blockquote><tt>(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.</tt></blockquote></blockquote>


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.
Although parents and stepparents &mdash; people who "stand in the place of a parent" &mdash; can apply for orders about decision-making responsibility and parenting time in a court proceeding between spouses, section 16.3 says that they must get the court's permission first.


===Orders for custody and access===
Under section 16.5(1), anyone other than a spouse can apply for an order that they have contact with a child. Like parents and stepparents who want parenting orders, the court must give permission for someone to apply for contact.


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.
===What entitlements does decision-making responsibility give?===


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.
Under section 2(1) of the ''[[Divorce Act]]'', someone with decision-making responsibility has the responsibility for making "significant decisions" about "a child's wellbeing," including about healthcare, education, culture, language, religion, and "significant extracurricular activities." The court can order that spouses share all decision-making responsibilities or that just one spouse have decision-making responsibility with respect to specific aspects of a child's life. (A court, for example, might order that one spouse have responsibility for healthcare decisions, while the other spouse has responsibility for the child's education.)


====Sole custody and joint custody====
Someone with decision-making responsibility also has the right to get information about the child's wellbeing from another person with decision-making responsibility and from any person who might have that information, like doctors or teachers.


Under s. 16(4), the court can order that one or more persons have custody of or access to a child.
===What entitlements does parenting time give?===


*When only one person has custody, that person has ''sole custody'' of the child.
Parenting time means the time a child of the marriage spends with a spouse, and normally refers to the schedule of the child's time with each spouse.  
*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.
Someone with parenting time is entitled to make day-to-day decisions affecting the child during their time with the child, and has the right to get information about the child's wellbeing from another person with decision-making responsibility and from any person who might have that information.


====What rights does custody give?====
===What entitlements does contact give?===


A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis
Contact is the time a child of the marriage has with someone other than a spouse.


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.
Someone with contact with a child ''does not'' have the right to make day-to-day decisions about the child. Someone with contact ''does not '' have the right to get information about the child's wellbeing from persons with decision-making responsibility or from anyone else who might have that information.


====What rights does access give?====
===How are parenting orders and contact orders enforced?===


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:
''[[Divorce Act]]'' parenting orders and contact orders 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 court that tall about enforcing orders and under the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]''. For more information, read the section [[Enforcing Orders in Family Matters]].


<blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote>
===How are parenting orders and contact orders changed?===


This provision doesn't apply to people who are not spouses and have access to the child under a ''Divorce Act'' order.
Under section 17(1)(b) of the ''[[Divorce Act]]'', a spouse or another person can apply to change, or ''vary'', a parenting order, but someone who isn't a spouse has to get permission from the court first. Under section 17(1)(c), applications to change a contact order can be made by "a person to whom the order relates," usually themselves or a spouse.


===How are orders for custody and access enforced?===
The legal test that must be met before the court changes a parenting  order or contact order is at section 17(5) and 17(5.1):


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 court and the provincial ''[http://canlii.ca/t/84h5 Court Order Enforcement Act]'', and by a spouse and the [http://www.fmep.gov.bc.ca/ Family Maintenance Enforcement Program] under the provincial ''[http://canlii.ca/t/840m Family Maintenance Enforcement Act]''.
<blockquote><tt>(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).</tt></blockquote>
<blockquote><tt>(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.</tt></blockquote>


===How are orders for custody and access changed?===
Someone who wants to change an order must first show that there has been a change in circumstances, normally an ''important'' change in circumstances. When the court is deciding what new parenting order or contact order it should make, the court must apply the best interests of the child considerations and factors described in section 16.


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.
===What happens if a spouse wants to move?===


The legal test that must be met before the court changes an order for custody or access is at s. 17(5):
If a spouse wants to move, with or without a child, and the move <span class="noglossary">will</span> have a "significant impact" on the child’s relationship with someone with decision-making responsibility, parenting time or contact, the spouse must give 60 days' notice of the move to anyone else who has decision-making responsibility, parenting time or contact. The notice must in the form required by the rules of court and say where the spouse plans on moving to, when the spouse plans on moving, and how decision-making responsibility, parenting time and contact can be exercised after the move. See the discussion on relocation under the heading [[Changing_Family_Law_Orders_and_Agreements_Involving_Children#Relocating_with_or_without_a_child | "Relocating with or without a child"]], in the section on [[Changing Family Law Orders and Agreements Involving Children]] in the [[Children and Parenting after Separation]] chapter.


<blockquote><tt>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.</tt></blockquote>
If a person receiving this notice objects to the proposed move, they have 30 days to file an objection to the move. The objection must in the form required by the rules of court and say why the person objects and they must respond to the spouse's proposal on how decision-making responsibility, parenting time and contact can be exercised after the move. If no one objects after receiving the notice, then the spouse will usually be able to move.


In other words, someone who wants to change an order must first show that 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.
When a spouse objects, how the spouses share the child's time becomes really important.
 
*When the spouses have ''substantially equal'' parenting time with the child, it is the job of the spouse who wants to move to show that the move ''is'' in the best interests of the child.
*When the child is with the spouse who wants to move for the ''vast majority'' of their time, it is the job of the objecting spouse to show that the move ''is not'' in the best interests of the child.
*In those in-between cases where the child's time isn't shared ''substantially equally'' and the child isn't in the care of a spouse for the ''vast majority'' of their time, ''both'' spouses have the job of showing whether the proposed move is or is not in the child's best interests.
 
Section 16.92 of the ''[[Divorce Act]]'' has a list of factors that the court should think about when deciding whether to allow a move or not. These include:
 
*the reasons for the move,
*the impact of the move on the child,
*whether there is an order, an arbitrator's award or an agreement that a spouse will not move, and
*the reasonableness of the moving spouse's proposal on how decision-making responsibility, parenting time and contact can be exercised after the move.


==The law about child support==
==The law about child support==


===Who is a child?===
===Who is a "child of the marriage"?===


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 care of the spouses. 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.
The ''[[Divorce Act]]'' talks about "children of the marriage." Only children of the marriage are entitled to benefit from the payment of child support.
 
A ''child of the marriage'' 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 are going to college or university, and are unable to support themselves as a result.


===Who is a spouse?===
===Who is a spouse?===


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


===Who is required to pay child support?===
===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.
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?===
===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 child support, the person <span class="noglossary">will</span> need to apply for child support under the provincial ''[[Family Law Act]]''.
Under section 15.1(1), only spouses can use the ''[[Divorce Act]]'' to ask for child support orders. If the child lives with someone other than a spouse and that person needs child support, that person <span class="noglossary">will</span> need to apply for child support under the provincial ''[[Family Law Act]]''.


===How is the amount of child support calculated?===
===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 Guidelines tables based on the payor’s income and the number of children support is being paid for. Child support can get more complicated when:
Child support is determined by the [[Child Support Guidelines]], which you read about in the [[Child Support]] chapter of this resource. Most of the time, child support is easy to figure out: you just look up the amount payable in the tables attached to the ''Guidelines'' based on the income of the ''payor'', the person paying child support, and the number of children support is being paid for. Calculating child support can get more complicated when:


*a child is 19 or older,  
*a child is 19 or older,
*the payor has an income of more than $150,000 per year,  
*the payor has an income of more than $150,000 per year,
*one more children live mostly with each spouse, called ''split custody'',  
*the payor is a stepparent,
*the spouses share the children’s time equally or almost equally, called ''shared custody'', or
*the payor is self-employed or has other sources of income that can be complicated to figure out,
*the payment of the tables amount would cause "undue hardship" to either the recipient of child support or the payor of child support.
*one or more children live mostly with each spouse,
*the spouses share the children’s time equally or almost equally, or
*the payment of the table amount would cause "undue hardship" to either the payor or the spouse receiving child support, the ''recipient''.
 
More information about how child support is calculated is available in the [[Child Support]] chapter, particularly in the sections on the [[Child Support Guidelines|Guidelines]] and the [[Exceptions_to_the_Child_Support_Guidelines|Exceptions to the Guidelines]].


===How is child support paid?===
===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.
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, very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques.
 
However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques, from bank statements or from e-transfer acknowledgements. This can help prevent arguments about whether a payment was late or missed altogether.
 
===Are there tax consequences?===
 
There are no tax consequences when child support is paid. The payor isn't allowed to deduct child support payments from the payor's taxable income, and the recipient isn't required to report child support payments as taxable income.
 
===What are special or extraordinary expenses?===
 
Section 7 of the [[Child Support Guidelines]] says that child support can include an extra amount to pay for children's "special or extraordinary expenses," on top of the table amount. ''Special expenses'' are the costs incurred on behalf of a child for things like daycare, medical insurance premiums, health expenses and the costs of going to college or university. ''Extraordinary expenses'' include public school costs and the cost of extracurricular activities, like sports teams, art classes or music lessons.
 
When a child has expenses that qualify as special or extraordinary expenses, both spouses contribute to paying the ''net cost'' of those expenses, once things like bursaries, subsidies and tax deductions are taken out of the cost. The spouses' contributions are calculated in proportion to their incomes. Here's an example of how that works:
 
<blockquote>Say that Spouse A has an income of $30,000 per year and Spouse B has an income of $20,000. Together, their total income is $50,000. Spouse A's income makes up 60% of their total income while Spouse B's income makes up the remaining 40%. Spouse A would then pay for 60% of the net cost of the child's qualifying special or extraordinary expenses &mdash; whether Spouse A is the payor or recipient of child support &mdash; while Spouse B would pay the other 40% of those expenses.</blockquote>
 
Special or extraordinary expenses are usually paid on a monthly basis, often around the same time as the payor's payment of the table amount of child support is made.


===How are orders for child support changed?===
===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, a change in how the children's time is divided between the spouses.
Under section 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. Typical changes are increases or decreases in the payor's income, or changes in how the children's time is divided between the spouses. Section 17(6.1) requires that the amount of child support payable under a ''variation order'' &mdash; an order changing another order &mdash; also be determined under the [[Child Support Guidelines]].
 
People can sometimes agree that the court will make a certain order. Orders that are made with the agreement of the parties are called ''consent orders.'' Under section 17(6.4), a consent order varying child support must calculate child support under the [[Child Support Guidelines]]. However, the court may be prepared to consider other terms of an order or agreement that provide an important benefit to the children in deciding whether the amount of support being paid is reasonable. This can sometimes be hard to prove.


====When both spouses live in British Columbia====
====When both spouses live in British Columbia====


To change a British Columbia ''[[Divorce Act]]'' child 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.
To change a British Columbia ''[[Divorce Act]]'' child support order when both spouses live here, the ''applicant'' &mdash; the person making the application &mdash; must file a Notice of Application in the original court proceeding. The [http://canlii.ca/t/8mcr Supreme Court Family Rules] have special rules about applications to change final orders.


====When a spouse lives outside of British Columbia====
====When a spouse lives outside of British Columbia====


To change a British Columbia ''[[Divorce Act]]'' child support order when the Respondent lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18.  
To change a British Columbia ''[[Divorce Act]]'' child support order when the ''respondent'' &mdash; the person against whom the application is made &mdash; lives in another province, the applicant sends an application to the British Columbia [https://www.isoforms.bc.ca Interjurisdictional Support Services Program]. The program will send the application to the court or child support recalculation program in the respondent's province. The court or recalculation program will take care of letting the respondent know about the application, and the application will be handled in the respondent's province.  


If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the Respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may:
The court may decide to:


*confirm the provisional order,  
*ask the applicant for more information,
*confirm the provisional order with some changes,
*delay the hearing if more information is needed,
*refuse to confirm the provisional order, or
*dismiss the application, or
*send the application back to British Columbia for more information.
*make a variation order.


A provisional order has no effect until and unless it is confirmed.
More information about how child support orders are changed when one of the spouses lives outside British Columbia is available in the [[Child Support]] chapter.


==The law about spousal support==
==The law about spousal support==


===Who is entitled to ask for spousal support?===
===Who can 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.
Only spouses can ask for spousal support. Under section 2(1) of the ''[[Divorce Act]]'', "spouse" includes ''former spouses'', people who have been divorced from each other. There is no time limit on when a spouse or former spouse can ask for spousal support.


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


<blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote>
<blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote>
Line 275: Line 373:
<blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(c) any order, agreement or arrangement relating to support of either spouse.</tt></blockquote></blockquote>


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


===How are the amount and duration of spousal support calculated?===
===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):
When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for is determined based on objectives set out at section 15.2(6):


<blockquote><tt>An order [for spousal support] should</tt></blockquote>
<blockquote><tt>An order [for spousal support] should</tt></blockquote>
Line 287: Line 385:
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote>
<blockquote><blockquote><tt>(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time. </tt></blockquote></blockquote>


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 Guidelines is not a law like the [[Child Support Guidelines]] and is not mandatory. The ''[[Divorce Act]]'' does not mention the Advisory Guidelines.
The amount of spousal support to be paid and the duration that it should be paid for is often determined using the [[The Spousal Support Advisory Guidelines]]. The Advisory Guidelines are not a law like the [[Child Support Guidelines]] and are not mandatory. In fact, the ''[[Divorce Act]]'' doesn't even mention the Advisory Guidelines. However, the courts of British Columbia and the rest of Canada routinely rely on the Advisory Guidelines when making decisions about spousal support. The Advisory Guidelines cannot be ignored if you are asking for, or being asked to pay, spousal support.
 
The Spousal Support Advisory Guidelines have two basic formulas that are used to calculate the amount of spousal support and the length of time it should be paid for: one when the spouses have children and one for when they do not. The formulas take into account a bunch of information, including:
 
*the income of the payor, the person paying spousal support, and the income of the recipient, the person receiving spousal support,
*the length of the spouses' relationship,
*the age of each spouse,
*how much child support is being paid,
*how much is being spent on the children's special or extraordinary expenses, and
*the age of each child and what grade they are at in school.
 
More information about spousal support is available in the [[Spousal Support]] chapter and the section on the [[The Spousal Support Advisory Guidelines|Advisory Guidelines]].


===Is a spouse’s conduct taken into account?===
===Is a spouse’s conduct taken into account?===


Under the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.  
Under section 15.2(5) of the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour during the marriage when making an order about spousal support.


===How is spousal support paid?===
===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.
Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also possible for spousal support to be paid in a single lump sum. Payors, the people paying spousal support, can be required to pay by giving the recipient, the person receiving spousal support, a series of post-dated cheques.
 
Where the payor cannot pay both spousal support and child support, under section 15.3 of the ''[[Divorce Act]]'' the court must give priority to the payment of child support.


===Are there tax consequences?===
===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.
There are tax consequences when spousal support is paid on a regular, repeating basis.  
 
The recipient of spousal support must declare the support received in their income tax return and pay tax on it, just as if the support payments were employment income. The payor, on the other hand, can deduct the spousal support paid from their taxable income in the same way that RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax on the spousal support they received at the end of the year while the payor might get a tax refund.


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.
There are no tax consequences when spousal support is paid as a single lump sum. When a lump sum is paid, the payor cannot deduct the spousal support payment from their taxable income, and the recipient does not have to add it to their own. However, the tax status of lump sum payments compared to regular, repeating payments is usually taken into account when calculating the amount of lump sum payments.


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.
Remember that taxes need to be taken into account when figuring out spousal support. If you are a recipient of spousal support, don't forget to put some money aside to pay the taxes you may owe on the spousal support you receive!


===How are orders for spousal support changed?===
===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:
Under section 17(4.1) of the ''[[Divorce Act]]'', the court can change an order for spousal support if:


<blockquote><tt>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</tt></blockquote>
<blockquote><tt>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</tt></blockquote>


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 the court varies an order for spousal support, it must take the change of circumstances into account under section 17(4.1) and, under section 17(7), consider the same objectives for the amount and duration of spousal support orders that it considered in making the original order.


====When both spouses live in British Columbia====
====When both spouses live in British Columbia====
Line 319: Line 432:
====When a spouse lives outside of British Columbia====
====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.  
To change a British Columbia ''[[Divorce Act]]'' spousal support order when the ''respondent'' &mdash; the person against whom the application is made &mdash; lives in another province, the applicant sends an application to the British Columbia [https://www.isoforms.bc.ca Interjurisdictional Support Services Program]. The program will send the application to the court in the respondent's province. The court will take care of letting the respondent know about the application, and the application will be handled in the respondent's province.  


If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the Respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may:
The court may decide to:


*confirm the provisional order,
*ask the applicant for more information,
*confirm the provisional order with some changes,
*delay the hearing if more information is needed,
*refuse to confirm the provisional order, or
*dismiss the application, or
*send the application back to British Columbia for more information.
*make a variation order.


A provisional order has no effect until and unless it is confirmed.
More information about how spousal support orders are changed when one of the spouses lives outside British Columbia is available in the [[Spousal Support]] chapter.


==Resources and links==
==Resources and links==
Line 335: Line 448:


* ''[http://canlii.ca/t/7vbw Divorce Act]''
* ''[http://canlii.ca/t/7vbw Divorce Act]''
* ''[http://canlii.ca/t/53rg6 An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act]'', the legislation that changed the ''Divorce Act'' on 1 March 2021
*[https://canlii.ca/t/55289 Supreme Court Family Rules]
*''[https://canlii.ca/t/8q3k Family Law Act]''
*[https://canlii.ca/t/531vd Federal Child Support Guidelines]
*''[https://canlii.ca/t/54b9k Court Order Enforcement Act]''


===Links===
===Links===


* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/index.html Divorce Law Questions & Answers], from the Department of Justice
*[https://www.justice.gc.ca/eng/fl-df/divorce/index.html "Divorce and Separation"] from the Department of Justice
* [http://www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/book-livre/index.html What happens next? Information for kids about separation and divorce], from the Department of Justice
*[https://www.justice.gc.ca/eng/rp-pr/fl-lf/famil/book-livre/title-titre.html ''What happens next? Information for kids about separation and divorce''] from the Department of Justice
*[http://www.phac-aspc.gc.ca/publicat/mh-sm/divorce/index-eng.php Because Life Goes On… Helping children and youth live with separation and divorce], from the Public Health Agency of Canada
*[https://www.clicklaw.bc.ca/resource/4340 Fact Sheet "Divorce"] from the Department of Justice
*[http://bit.ly/BecauseLifeGoesOn ''Because Life Goes On… Helping children and youth live with separation and divorce''] report from Public Health Agency of Canada
*[https://www.clicklaw.bc.ca/resource/4647 "Getting a Divorce"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/4639 "Separation & Divorce"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/4139 "Parent Guide to Separation and Divorce"] from the Justice Education Society
*[https://www.clicklaw.bc.ca/resource/4869 "Changes to the Divorce Act"] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/4865 "Divorce Act Changes Explained"] from the Department of Justice


{{REVIEWED | reviewer = [[JP Boyd]], 17 February 2023}}


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[[Category:JP Boyd on Family Law]]

Latest revision as of 22:08, 11 January 2024

The Divorce Act is the law that deals with marriage breakdown in Canada. It only applies to people 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 divorce orders from another country are recognized here. It also talks about the care and parenting of children after separation, child support, and spousal support.

This section provides a top to bottom overview of the Divorce Act in an easy-to-read question and answer format. 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.

Introduction

The very first Canadian Divorce Act didn't become law until 1968. It was overhauled and replaced with a new Divorce Act 17 years later, in 1985. The 1985 version of the act was updated in 1997 when the Child Support Guidelines were introduced, but it took another 24 years for the next major changes to the act to become law on 1 March 2021. These most recent changes to the Divorce Act were very important because they changed the way we talk about parenting children from terms like custody and access, which were about the rights of parents and tended to encourage conflict between separated parents, to terms like decision-making responsibility and parenting time, which are about the rights of children and encourage separated parents to cooperate.

Other important changes to the 1985 Divorce Act include:

  • expanding the factors parents and the court must consider when deciding what is, and isn't, in the best interest of children,
  • requiring parents to try to resolve family law problems other than by going to court,
  • adding measures to help the court deal with family violence,
  • creating a new way of dealing with parents who want to move away, with or without the children, after separation, and
  • implementing a number of international treaties.

The full list of changes can be found in the legislation that changed the Divorce Act, the Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. (What a long name!) All of these changes are reflected in this resource.

Who does the Divorce Act apply to?

The federal Divorce Act is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were legally married to each other, regardless of where they were married. If people in other kinds of relationships can't make an agreement and need to ask the court for orders about parenting children, child support, or spousal support, they must apply under provincial legislation. In British Columbia, that law is the Family Law Act.

If married spouses have started a court proceeding under the Divorce Act, other people — including grandparents, other family members, and children's other caregivers — can use the Divorce Act to ask for orders for contact with the spouses' children, but they must get the court's permission first.

What issues does the Divorce Act cover?

The Divorce Act talks about:

  • divorce and foreign divorce orders,
  • decision-making responsibility for children,
  • parenting time or contact with children,
  • moving away after separation, with or without children,
  • paying and receiving child support,
  • paying and receiving spousal support, and
  • changing orders about decision-making responsibility, parenting time, contact with children, child support, or spousal support.

Orders about decision-making responsibility and parenting time are called "parenting orders."

What is corollary relief?

You may have heard the term "corollary relief" used about court proceedings under the Divorce Act. Corollary means something that is related to or a consequence of something else. The primary subject matter of the Divorce Act is divorce. The other orders available under the act, about parenting children, child support, and spousal support, all stem from the court's ability to make a divorce order. The court's power to make these orders is "corollary" to the court's power over divorce, and orders about parenting children, child support, and spousal support are sometimes called corollary relief or corollary orders.

What about annulment?

When a marriage is annulled, the marriage is cancelled as if the couple had never been married at all. A marriage can sometimes 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 law and is nowhere near as easy to get as a divorce. The section on Married Spouses and the Law on Marriage in the Family Relationships chapter talks about when and how marriages can be annulled.

When can a court proceeding under the Divorce Act start?

A court proceeding for a divorce order can only start when one of the spouses has lived in the province 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. There's no waiting period.

If you have recently moved to a new province, you have three choices. You can wait until you have lived in your new province to start a court proceeding under the Divorce Act in the court of your new province. You can start a court proceeding in the province where your spouse lives, as long as they have lived in that province for at least one year. Or, you can start a court proceeding under the family law legislation in your new province and wait until you've lived there one year to add a claim under the Divorce Act to the court proceeding.

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 Court. Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial Family Law Act. However, only the Supreme Court has the jurisdiction to hear proceedings under the Divorce Act.

What happens if we each start a court proceeding for divorce?

If each spouse has started a court proceeding under the Divorce Act, the court in which the first court proceeding was started can continue to deal with that proceeding, and the court proceeding that was started second is considered to be cancelled. This can be very important where spouses live in different provinces.

If the two court proceedings were started on the same day and you can't agree on which court proceeding should be cancelled, you or your spouse will have to apply to the Federal Court for a decision about which court proceeding should continue and which should end. The Federal Court will use these rules:

  • if one of the proceedings asks for an order about parenting, the court proceeding that will continue is the proceeding in the province where the child normally lives,
  • if neither proceeding asks for an order about parenting, the court proceeding that will continue is the proceeding in the province where you last lived together, and
  • if neither proceeding asks for an order about parenting and neither province is the province where you last lived together, the court proceeding that will continue is the proceeding which the Federal Court considers to be "most appropriate."

The "most appropriate" court will usually be the court in the province in which most of the witnesses and evidence that are needed for the court proceeding are located.

What about claims under the Family Law Act?

Both the Divorce Act and the Family Law Act talk about parenting children, child support, and spousal support. As long as a person is married, they can start a court proceeding about these issues under either law or under both laws at the same time. However, it's important to know that only the Family Law Act talks about orders dividing property and debt, personal protection orders and financial protection orders, declarations about the parentage of a child, or orders about the use of the family home. If orders like these are required, the court proceeding must include claims under the Family Law Act.

See the section Family Law Act Basics for more information about the Family Law Act.

Child support

The rules about child support are almost the same between the Divorce Act and the Family Law Act, except that it can be a bit easier to ask a stepparent to pay child support 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 adults who aren't married to each other as long as they meet that act'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 and can't make the claim at all.

Parenting children

The Divorce Act talks about spouses who have decision-making responsibility and parenting time, and people who aren't spouses who have contact. The Family Law Act talks about guardians who have parental responsibilities and parenting time, and people who aren't guardians who have contact. Both laws also talk about what happens when a parent wants to move away with a child and how family violence impacts the court's decisions about parenting. The two laws are very similar to each other, although there are some small differences.

The law about divorce

Why will the court make a divorce order?

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

  • because the spouses have been separated for at least one year;
  • because one spouse has committed adultery, and the adultery hasn't been forgiven, or
  • because one spouse has treated the other with such cruelty that the spouses cannot continue to live together, and the cruelty hasn't been forgiven.

In Canada, most divorce claims are made on the basis of separation, even if there has been adultery or cruelty. It's important to know that you can't ask for a divorce because of your own adultery or cruelty, only the adultery or cruelty of your spouse.

Separation

To get a divorce based on separation, you and your spouse must have "lived separate and apart" for one year.

The period of living "separate and apart" can include time when you were both living in the same home. However, the "conjugal" quality of your relationship — the marriage-like quality of your relationship — must have ended. In general, this means that you must have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under section 8(3) of the Divorce Act, spouses can live together in an attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple wind up living together for a total period of more than 90 days, the clock resets and the spouses must wait for a new one-year period to end before asking for a divorce order.

Adultery

To get a divorce based on adultery, you have to be able to prove that:

  • your spouse had sex with someone else without your consent, and
  • you haven't forgiven your spouse for their adultery.

The evidence the court will require isn't indirect, or "circumstantial" evidence, like a hotel receipt or a used condom, but direct evidence, like a photograph of the adultery while it is occurring or your spouse's admission to having committed adultery.

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

Cruelty

To get a divorce based on cruelty, you have to be able to prove that:

  • you were treated with such mental or physical cruelty that it was impossible to continue living with your spouse, and
  • you haven't forgiven your spouse for their cruelty.

The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. Your own evidence won't do.

You can't ask for a divorce because of your own cruelty. You can only ask because of 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 is considered not to have broken down, and the court won't make a divorce order.

When can the court make the divorce order?

If the claim for the divorce is based on separation, neither spouse can 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 divorce claims based on adultery or cruelty is that the application for the divorce order can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and most of the time it is difficult to get the other person to explicitly agree that these grounds exist. Also, if more than a year has passed from the date of separation at the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for any reason other than because the spouses have been separated for over a year.

Lawyers rarely advise their clients to make claims for divorce based on adultery and cruelty, especially because a claim based on separation for one year is much less contentious, requires very little evidence to prove, and is much more straightforward.

The process for getting a divorce order is described in detail in the Getting Divorced section of the chapter Separating and Getting Divorced.

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:

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 agreement 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 an important benefit to the children in deciding whether the amount of support being paid is reasonable. This can sometimes be hard to prove.

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 section 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because the deadline to make an appeal of a Divorce Act order is the 30th day after the order is made and the deadline for an appeal needs to pass, without an appeal being brought, before the spouses will be considered divorced.

What's the legal effect of a divorce order?

A divorce order ends a marriage. When a marriage is terminated by divorce, 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.

What if we wait to get a divorce order?

Getting a divorce is often a low priority for married people 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 expensive,
  • other issues, like the parenting of children or the division of property and debt, take priority, or
  • a spouse's religion discourages or prohibits divorce.

However, delaying your divorce for too long can cause some complications...

No divorce without a divorce order

Firstly, no matter how long spouses wait to get divorced, they will remain 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 alone 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 themselves in a spousal relationship with their new partner without being divorced from their spouse. (Remember that under the Family Law Act people can become spouses without getting married.) If that relationship also doesn't work out, the spouse may wind up being obliged to pay spousal support to more than one other spouse!

Are foreign divorce orders valid in Canada?

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

The law about children

Who is a "child of the marriage"?

The Divorce Act talks about "children of the marriage" rather than just saying "children." A child must qualify as a "child of the marriage" before the court can make orders about parenting that child or paying child support for that child.

A child of the marriage is a child of one or both spouses who:

  • is under the provincial age of majority and has not "withdrawn from their charge," or
  • is older than the age of majority but is unable to withdraw from the spouses' care "by reason of illness, disability or other cause."

In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.

The bit about "other cause" where the act talks about adult children usually means that the child is going to college or university. There are a few court decisions where "other cause" has been interpreted to include circumstances in which the child is unemployed after reaching the age of majority and is "unable to withdraw" from their parents' charge because they can't find a job.

How are decisions about children made?

Section 16 of the Divorce Act says that:

(1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Section 16(3) provides a list of specific factors that the court should take into account when deciding what order is in the "best interests of the child." That list includes things like the child's wishes, needs, age, relationships with brothers and sisters, history of care, and cultural upbringing. The list also includes the presence of family violence in the child's life. When family violence is a concern, section 16(4) provides a list of additional factors to help the court decide how the violence has affected the child and the ability of the spouses to provide proper care for the child.

Section 16(6) provides further guidance to the court. It says that:

in allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

(In legislation, "shall" means must.)

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

Who can ask for parenting orders and contact orders?

Under section 16.1(1)(a) of the Divorce Act, the people who can ask for orders about decision-making responsibility and parenting time are spouses as well as:

(b) a person, other than a spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent.

Although parents and stepparents — people who "stand in the place of a parent" — can apply for orders about decision-making responsibility and parenting time in a court proceeding between spouses, section 16.3 says that they must get the court's permission first.

Under section 16.5(1), anyone other than a spouse can apply for an order that they have contact with a child. Like parents and stepparents who want parenting orders, the court must give permission for someone to apply for contact.

What entitlements does decision-making responsibility give?

Under section 2(1) of the Divorce Act, someone with decision-making responsibility has the responsibility for making "significant decisions" about "a child's wellbeing," including about healthcare, education, culture, language, religion, and "significant extracurricular activities." The court can order that spouses share all decision-making responsibilities or that just one spouse have decision-making responsibility with respect to specific aspects of a child's life. (A court, for example, might order that one spouse have responsibility for healthcare decisions, while the other spouse has responsibility for the child's education.)

Someone with decision-making responsibility also has the right to get information about the child's wellbeing from another person with decision-making responsibility and from any person who might have that information, like doctors or teachers.

What entitlements does parenting time give?

Parenting time means the time a child of the marriage spends with a spouse, and normally refers to the schedule of the child's time with each spouse.

Someone with parenting time is entitled to make day-to-day decisions affecting the child during their time with the child, and has the right to get information about the child's wellbeing from another person with decision-making responsibility and from any person who might have that information.

What entitlements does contact give?

Contact is the time a child of the marriage has with someone other than a spouse.

Someone with contact with a child does not have the right to make day-to-day decisions about the child. Someone with contact does not have the right to get information about the child's wellbeing from persons with decision-making responsibility or from anyone else who might have that information.

How are parenting orders and contact orders enforced?

Divorce Act parenting orders and contact orders 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 court that tall about enforcing orders and under the provincial Court Order Enforcement Act. For more information, read the section Enforcing Orders in Family Matters.

How are parenting orders and contact orders changed?

Under section 17(1)(b) of the Divorce Act, a spouse or another person can apply to change, or vary, a parenting order, but someone who isn't a spouse has to get permission from the court first. Under section 17(1)(c), applications to change a contact order can be made by "a person to whom the order relates," usually themselves or a spouse.

The legal test that must be met before the court changes a parenting order or contact order is at section 17(5) and 17(5.1):

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.

Someone who wants to change an order must first show that there has been a change in circumstances, normally an important change in circumstances. When the court is deciding what new parenting order or contact order it should make, the court must apply the best interests of the child considerations and factors described in section 16.

What happens if a spouse wants to move?

If a spouse wants to move, with or without a child, and the move will have a "significant impact" on the child’s relationship with someone with decision-making responsibility, parenting time or contact, the spouse must give 60 days' notice of the move to anyone else who has decision-making responsibility, parenting time or contact. The notice must in the form required by the rules of court and say where the spouse plans on moving to, when the spouse plans on moving, and how decision-making responsibility, parenting time and contact can be exercised after the move. See the discussion on relocation under the heading "Relocating with or without a child", in the section on Changing Family Law Orders and Agreements Involving Children in the Children and Parenting after Separation chapter.

If a person receiving this notice objects to the proposed move, they have 30 days to file an objection to the move. The objection must in the form required by the rules of court and say why the person objects and they must respond to the spouse's proposal on how decision-making responsibility, parenting time and contact can be exercised after the move. If no one objects after receiving the notice, then the spouse will usually be able to move.

When a spouse objects, how the spouses share the child's time becomes really important.

  • When the spouses have substantially equal parenting time with the child, it is the job of the spouse who wants to move to show that the move is in the best interests of the child.
  • When the child is with the spouse who wants to move for the vast majority of their time, it is the job of the objecting spouse to show that the move is not in the best interests of the child.
  • In those in-between cases where the child's time isn't shared substantially equally and the child isn't in the care of a spouse for the vast majority of their time, both spouses have the job of showing whether the proposed move is or is not in the child's best interests.

Section 16.92 of the Divorce Act has a list of factors that the court should think about when deciding whether to allow a move or not. These include:

  • the reasons for the move,
  • the impact of the move on the child,
  • whether there is an order, an arbitrator's award or an agreement that a spouse will not move, and
  • the reasonableness of the moving spouse's proposal on how decision-making responsibility, parenting time and contact can be exercised after the move.

The law about child support

Who is a "child of the marriage"?

The Divorce Act talks about "children of the marriage." Only children of the marriage are entitled to benefit from the payment of child support.

A child of the marriage 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 are going to college or university, and are unable to support themselves as a result.

Who is a spouse?

In the context of child support, spouse includes a spouse who is a parent of a child and a spouse who "stands in the place of a parent" for a child. In other words, "spouse" includes people 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 section 15.1(1), only spouses can use the Divorce Act to ask for child support orders. If the child lives with someone other than a spouse and that person needs child support, that person will need to apply for 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, which you read about in the Child Support chapter of this resource. Most of the time, child support is easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the income of the payor, the person paying child support, and the number of children support is being paid for. Calculating 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,
  • the payor is a stepparent,
  • the payor is self-employed or has other sources of income that can be complicated to figure out,
  • one or more children live mostly with each spouse,
  • the spouses share the children’s time equally or almost equally, or
  • the payment of the table amount would cause "undue hardship" to either the payor or the spouse receiving child support, the recipient.

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, very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques.

However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques, from bank statements or from e-transfer acknowledgements. This can help prevent arguments about whether a payment was late or missed altogether.

Are there tax consequences?

There are no tax consequences when child support is paid. The payor isn't allowed to deduct child support payments from the payor's taxable income, and the recipient isn't required to report child support payments as taxable income.

What are special or extraordinary expenses?

Section 7 of the Child Support Guidelines says that child support can include an extra amount to pay for children's "special or extraordinary expenses," on top of the table amount. Special expenses are the costs incurred on behalf of a child for things like daycare, medical insurance premiums, health expenses and the costs of going to college or university. Extraordinary expenses include public school costs and the cost of extracurricular activities, like sports teams, art classes or music lessons.

When a child has expenses that qualify as special or extraordinary expenses, both spouses contribute to paying the net cost of those expenses, once things like bursaries, subsidies and tax deductions are taken out of the cost. The spouses' contributions are calculated in proportion to their incomes. Here's an example of how that works:

Say that Spouse A has an income of $30,000 per year and Spouse B has an income of $20,000. Together, their total income is $50,000. Spouse A's income makes up 60% of their total income while Spouse B's income makes up the remaining 40%. Spouse A would then pay for 60% of the net cost of the child's qualifying special or extraordinary expenses — whether Spouse A is the payor or recipient of child support — while Spouse B would pay the other 40% of those expenses.

Special or extraordinary expenses are usually paid on a monthly basis, often around the same time as the payor's payment of the table amount of child support is made.

How are orders for child support changed?

Under section 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. Typical changes are increases or decreases in the payor's income, or changes in how the children's time is divided between the spouses. Section 17(6.1) requires that the amount of child support payable under a variation order — an order changing another order — also be determined under the Child Support Guidelines.

People can sometimes agree that the court will make a certain order. Orders that are made with the agreement of the parties are called consent orders. Under section 17(6.4), a consent order varying child support must calculate child support under the Child Support Guidelines. However, the court may be prepared to consider other terms of an order or agreement that provide an important benefit to the children in deciding whether the amount of support being paid is reasonable. This can sometimes be hard to prove.

When both spouses live in British Columbia

To change a British Columbia Divorce Act child support order when both spouses live here, the applicant — the person making the application — must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special rules about 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 respondent — the person against whom the application is made — lives in another province, the applicant sends an application to the British Columbia Interjurisdictional Support Services Program. The program will send the application to the court or child support recalculation program in the respondent's province. The court or recalculation program will take care of letting the respondent know about the application, and the application will be handled in the respondent's province.

The court may decide to:

  • ask the applicant for more information,
  • delay the hearing if more information is needed,
  • dismiss the application, or
  • make a variation order.

More information about how child support orders are changed when one of the spouses lives outside British Columbia is available in the Child Support chapter.

The law about spousal support

Who can ask for spousal support?

Only spouses can ask for spousal support. Under section 2(1) of the Divorce Act, "spouse" includes former spouses, people who have been divorced from each other. There is no time limit on when a spouse or former spouse can ask for spousal support.

A spouse’s entitlement to spousal support is determined based on factors set out at section 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 cohabitation; 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 the payment of child support. Anyone who is a spouse can ask for spousal support, but being able to ask doesn’t mean you'll get it. You must also show that you are entitled to get 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 is determined based on objectives set out at section 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) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation 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 The Spousal Support Advisory Guidelines. The Advisory Guidelines are not a law like the Child Support Guidelines and are not mandatory. In fact, the Divorce Act doesn't even mention the Advisory Guidelines. However, the courts of British Columbia and the rest of Canada routinely rely on the Advisory Guidelines when making decisions about spousal support. The Advisory Guidelines cannot be ignored if you are asking for, or being asked to pay, spousal support.

The Spousal Support Advisory Guidelines have two basic formulas that are used to calculate the amount of spousal support and the length of time it should be paid for: one when the spouses have children and one for when they do not. The formulas take into account a bunch of information, including:

  • the income of the payor, the person paying spousal support, and the income of the recipient, the person receiving spousal support,
  • the length of the spouses' relationship,
  • the age of each spouse,
  • how much child support is being paid,
  • how much is being spent on the children's special or extraordinary expenses, and
  • the age of each child and what grade they are at in school.

More information about spousal support is available in the Spousal Support chapter and the section on the Advisory Guidelines.

Is a spouse’s conduct taken into account?

Under section 15.2(5) of the Divorce Act, the court is not allowed to consider a spouse’s behaviour during the marriage 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. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also possible for spousal support to be paid in a single lump sum. Payors, the people paying spousal support, can be required to pay by giving the recipient, the person receiving spousal support, a series of post-dated cheques.

Where the payor cannot pay both spousal support and child support, under section 15.3 of the Divorce Act the court must give priority to the payment of child support.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular, repeating basis.

The recipient of spousal support must declare the support received in their income tax return and pay tax on it, just as if the support payments were employment income. The payor, on the other hand, can deduct the spousal support paid from their taxable income in the same way that RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax on the spousal support they received at the end of the year while the payor might get a tax refund.

There are no tax consequences when spousal support is paid as a single lump sum. When a lump sum is paid, the payor cannot deduct the spousal support payment from their taxable income, and the recipient does not have to add it to their own. However, the tax status of lump sum payments compared to regular, repeating payments is usually taken into account when calculating the amount of lump sum payments.

Remember that taxes need to be taken into account when figuring out spousal support. If you are a recipient of spousal support, don't forget to put some money aside to pay the taxes you may owe on the spousal support you receive!

How are orders for spousal support changed?

Under section 17(4.1) of the Divorce Act, the court can change an order for spousal support if:

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 under section 17(4.1) and, under section 17(7), consider the same objectives for the amount and duration of spousal support orders that 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 — the person against whom the application is made — lives in another province, the applicant sends an application to the British Columbia Interjurisdictional Support Services Program. The program will send the application to the court in the respondent's province. The court will take care of letting the respondent know about the application, and the application will be handled in the respondent's province.

The court may decide to:

  • ask the applicant for more information,
  • delay the hearing if more information is needed,
  • dismiss the application, or
  • make a variation order.

More information about how spousal support orders are changed when one of the spouses lives outside British Columbia is available in the Spousal Support chapter.

Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 17 February 2023.



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