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Difference between revisions of "Divorce Act Basics"
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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 of children after separation (custody and access), 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 of children after separation (custody and access), child support and spousal support. | ||
This section provides a top to bottom overview of the ''Divorce Act'' in | 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''. Use the search tool at the top of the page to find more information about specific topics. | ||
==Introduction== | ==Introduction== | ||
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===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 | A court proceeding for a divorce order can only start when one of the spouses has lived in the province or territory where the proceeding is started for at least one year. As long as this requirement is met, a court proceeding can be started as soon as the spouses have separated. If both spouses have moved to new provinces, the court proceeding must wait until the one-year residence requirement is satisfied. | ||
===Which court can hear a proceeding under the ''Divorce Act''?=== | ===Which court can hear a proceeding under the ''Divorce Act''?=== | ||
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===What happens if each spouse starts a court proceeding?=== | ===What happens if each spouse starts a court proceeding?=== | ||
If each spouse | 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 dropped. This can be very important where spouses live in different provinces. | ||
If the | If the two court proceedings were started same day, however, both proceedings will be transferred to the [http://cas-ncr-nter03.cas-satj.gc.ca/portal/page/portal/fc_cf_en/Index Federal Court], and it's that court which will hear and decide the spouses' claims. The Federal Court is a trial court, like the Supreme Court of British Columbia, but is common to all of Canada. | ||
===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 children, child support, and spousal support. As a long a person is married, he or she can start a court proceeding about these issues under either law or under both laws at the same time. However, if orders about the division of property and debt, personal protection orders and financial protection orders, the parentage of a child or the use of the family home are required, | Both the ''[[Divorce Act]]'' and the ''[[Family Law Act]]'' talk about the care of children, child support, and spousal support. As a long a person is married, he or she can start a court proceeding about these issues under either law or under both laws at the same time. However, if orders about the division of property and debt, personal protection orders and financial protection orders, the parentage of a child or the use of the family home are required, those claims must be made under the ''Family Law Act''; see the section [[Family Law Act Basics|''Family Law Act'' Basics]] for more information. | ||
====Child support==== | ====Child support==== | ||
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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, the spouses must have lived separate and apart for one year. | ||
The period of living separate and apart can pass while living under the same roof. However, the partnership quality of the relationship between the spouses — the "marriage-like" quality of | The 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 their relationship — must have ended. In general, this means that the spouses have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple. | ||
Under s. 8(3), | Under s. 8(3), 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 lives 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==== | ||
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====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 | 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, | 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 claims based on adultery or cruelty is that the application for divorce can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order | 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 if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for a reason other than the spouses' separation. | ||
The process for getting a divorce order is | The process for getting a divorce order is described in detail in the [[Divorce]] section of the chapter [[Separation & Divorce]]. | ||
===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> | <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 a direct or indirect benefit to the children in deciding whether the amount of support being paid is reasonable. This is sometimes 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]]. | 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]]. | ||
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===When is a divorce order effective?=== | ===When is a divorce order effective?=== | ||
Under s. 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because | Under s. 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 appeal deadline 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?=== | ||
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*a spouse's religion discourages or prohibits divorce. | *a spouse's religion discourages or prohibits divorce. | ||
However, there can be some complications. | However, there can be some complications... | ||
====No divorce without a divorce order==== | ====No divorce without a divorce order==== | ||
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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 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.) If that relationship doesn't work out, the spouse may wind up being obliged to pay spousal support to two spouses! | ||
=== | ===Are foreign divorce orders valid in Canada?=== | ||
Under s. 22 of the ''[[Divorce Act]]'', a divorce order made outside of Canada will be recognized | Under s. 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 lived in the country that made the divorce order for at least one year before the divorce 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. | The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just children. 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. In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18. | ||
Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders about children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions. | 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. | ||
