Difference between revisions of "Divorce Act Basics"

====What is "corollary relief"?====

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.

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 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.

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 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 come from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.

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.

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, and the right to receive death benefits.

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!

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

The ''[[Divorce Act]]'' talks about "children of the marriage" rather than just children. A child of the marriage 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.

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.

"Custody" sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling and wellbeing, as well as the right to participate in making decisions about those things. Under s. 16(4) of the ''[[Divorce Act]]'', the court can order that one or more persons have custody of 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 the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled, or are going to school full-time, and are unable to support themselves as a result.

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 spouses who are ''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.

Child support is determined by the [[Child Support Guidelines]]. Most of the time, child support his easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the payor’s income and the number of children support is being paid for. Calculating child support can get more complicated when:

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 spouse can ask for spousal support.

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.