2,667
edits
Difference between revisions of "Divorce Act Basics"
From Clicklaw Wikibooks
no edit summary
| Line 72: | Line 72: | ||
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. | 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. | ||
When the ''Divorce Act'' is changed, the act will talk about | When the ''Divorce Act'' is changed, the act will talk about ''parenting orders'' and ''parenting plans'' that, instead of "custody" and "access," cover ''parenting time'', ''decision-making responsibilities'' and ''contact''. | ||
==The law about divorce== | ==The law about divorce== | ||
| Line 86: | Line 86: | ||
====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, the spouses must have lived "separate and apart" for one year. | ||
The period of living separate and apart can | The period of living separate and apart can include time when the spouses were living under the same roof. However, the conjugal aspects 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), 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 | 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 live 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 their spouse had sex with someone else, without their 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, the spouse asking for the divorce has to be able to prove that their spouse had sex with someone else, without their 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 other spouse's admission. | ||
You can't ask for a divorce because of your own adultery, only the adultery of your spouse. | You can't ask for a divorce because of your own adultery, only because of the adultery of your spouse. | ||
====Cruelty==== | ====Cruelty==== | ||
| Line 102: | Line 102: | ||
To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that they were 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. | To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that they were 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. | ||
You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse. | You can't ask for a divorce because of your own cruelty, only because of the cruelty of your spouse. | ||
====The effect of forgiveness==== | ====The effect of forgiveness==== | ||
| Line 112: | Line 112: | ||
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. | 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 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 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. It is generally best not to make claims for divorce based on adultery and cruelty. | ||
The process for getting a divorce order is described in detail in the [[Divorce]] section of the chapter [[Separation & Divorce]]. | The process for getting a divorce order is described in detail in the [[Divorce]] section of the chapter [[Separation & Divorce]]. | ||
| Line 132: | Line 132: | ||
===What's the legal effect of a divorce order?=== | ===What's the legal effect of a divorce order?=== | ||
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 spouses wait to get a divorce order?=== | ===What if spouses wait to get a divorce order?=== | ||
| Line 152: | Line 152: | ||
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 themself 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 | 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 themself in a new 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 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?=== | ===Are foreign divorce orders valid in Canada?=== | ||
| Line 160: | Line 160: | ||
==The law about children== | ==The law about children== | ||
===Who is a | ===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. | 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. | ||
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 involving 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 involving 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. | ||
| Line 172: | Line 172: | ||
<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><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> | ||
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 | 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. | ||
===Who can ask for orders about custody and access?=== | ===Who can ask for orders about custody and access?=== | ||
Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or ''any other person'' can apply to court for an order that they have 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. | Under s. 16(1) of the ''[[Divorce Act]]'', a spouse or ''any other person'' can apply to court for an order that they have custody of or access to a child. However, a person who is not a spouse, including a child's grandparents, cannot make the application without first getting the court's permission. | ||
===What rights does custody give?=== | ===What rights does custody give?=== | ||
| Line 188: | Line 188: | ||
Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question. | Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question. | ||
Under the new ''Divorce Act'', the right to make decisions about children will be described as ''parenting responsibilities''. | |||
===What rights does access give?=== | ===What rights does access give?=== | ||
| Line 196: | Line 198: | ||
This provision doesn't apply to people who are not spouses and have access to the child under a ''Divorce Act'' order. | This provision doesn't apply to people who are not spouses and have access to the child under a ''Divorce Act'' order. | ||
Under the new ''Divorce Act'', people who are spouses will have ''parenting time'' with a child instead of "access," and people who are not spouses may have ''contact'' with a child. People with parenting time also have the right to make day-to-day decisions affecting the child during their time with the child. | |||
===How are orders for custody and access enforced?=== | ===How are orders for custody and access enforced?=== | ||
| Line 213: | Line 217: | ||
==The law about child support== | ==The law about child support== | ||
===Who is a | ===Who is a "child of the marriage"?=== | ||
The ''[[Divorce Act]]'' talks about '' | The ''[[Divorce Act]]'' talks about "children of the marriage." 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 school full-time, and are unable to support themselves as a result. | ||
===Who is a spouse?=== | ===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, | 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 | 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?=== | ||
| Line 268: | Line 272: | ||
A provisional order has no effect until and unless it is confirmed. | A provisional order has no effect until and unless it is confirmed. | ||
Under the new ''Divorce Act'' this process will be replaced with a process that requires only one hearing, usually in the province where the respondent lives. | |||
==The law about spousal support== | ==The law about spousal support== | ||
