Anonymous

Difference between revisions of "Divorce Act Basics"

From Clicklaw Wikibooks

Divorce Act Basics (view source)

Revision as of 16:51, 5 April 2013

270 bytes added ,  16:51, 5 April 2013
no edit summary
Line 1: Line 1:
{{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 obtained in another country are recognized here. It also deals with the care of children after separation, child support and spousal support.
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 obtained in another country are recognized here. It also deals with the care 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 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.
Line 9: Line 9:
===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 the spouses were married. If other kinds of couples 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, this is the ''Family Law Act''.
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 the spouses were married. If other kinds of couples 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, this is the ''[[Family Law Act]]''.


Other people can use the ''Divorce Act'' to ask for orders about the care of children, but:
Other people can use the ''[[Divorce Act]]'' to ask for orders about the care of children, but:


#they can only apply if there is already a court proceeding between married spouses; and,
*they can only apply if there is already a court proceeding between married spouses, and
#they must first get the court's permission to make an application.
*they must first get the court's permission to make an application.


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


The ''Divorce Act'' deals with:
The ''[[Divorce Act]]'' deals with:


#divorce;
*divorce,
#foreign divorce orders;
*foreign divorce orders,
#custody of children;
*custody of children,
#access to children;
*access to children,
#paying child support and how child support is calculated;
*paying child support and how child support is calculated,
#paying spousal support; and,
*paying spousal support, and
#changing orders about custody, access, child support and spousal support.
*changing orders about custody, access, child support and spousal support.


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


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 they are related to the court's ability to make a divorce order.
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 they are related to the court's ability to make a divorce order.


====What about annulment?====
====What about annulment?====
Line 36: Line 36:
When a marriage is ''annulled'', it 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'', it 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.  


The ''Divorce Act'' doesn't talk about when marriages can be "annulled". Annulment is governed by the common law and is nowhere near as easy to get as a divorce.
The ''[[Divorce Act]]'' doesn't talk about when marriages can be "annulled". Annulment is governed by the common law and is nowhere near as easy to get as a divorce.


===When can a court proceeding under the ''Divorce Act'' start?===
===When can a court proceeding under the ''Divorce Act'' start?===
Line 44: Line 44:
===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''. Only the Supreme Court has the jurisdiction to hear proceedings under the ''Divorce Act''.
Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial ''[[Family Law Act]]''. 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 each spouse starts a court proceeding?===
Line 54: Line 54:
===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 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.


====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 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]]''.


====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 couples that aren't married to each other.


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 divorce, 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. There's no limit to when claims 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 divorce, 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. There's no limit to when claims can be brought under the ''[[Divorce Act]]''.


====Children====
====Children====


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.
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.


Because the two systems are so different, even though a married spouse can make a claim under both laws, it's best just to pick one. It <span class="noglossary">will</span> be less confusing for the court and less confusing for the parties involved.
Because the two systems are so different, even though a married spouse can make a claim under both laws, it's best just to pick one. It <span class="noglossary">will</span> be less confusing for the court and less confusing for the parties involved.


==The Law About Divorce==
==The law About divorce==


===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 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:


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


====Separation====
====Separation====
Line 102: Line 102:
A spouse can't ask for a divorce because of his or her own cruelty.
A spouse can't ask for a divorce because of his or her own cruelty.


====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. If the bad behaviour has been forgiven, 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. If the bad behaviour has been forgiven, the marital relationship hasn't broken down and the court can't make the divorce order.
Line 114: Line 114:
===What about child support?===
===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:
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>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>
Line 132: Line 132:
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 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:


#the cost of getting a divorce can be too high;
*the cost of getting a divorce can be too high,
#other issues, like the care of children or the division of property and debt, take priority; or,
*other issues, like the care of children or the division of property and debt, take priority, or
#a spouse's religion discourages divorce.
*a spouse's religion discourages divorce.


====No Divorce without a Divorce Order====
====No divorce without a Divorce Order====


No matter how long spouses wait, they <span class="noglossary">will</span> always be married to each other until one of them dies or they get divorced. There's no automatic divorce.
No matter how long spouses wait, they <span class="noglossary">will</span> always be married to each other until one of them dies or they get divorced. There's no automatic divorce.


====New Relationships====
====New relationships====


Spouses often move on with their lives after separation, meet new people and get into new romantic relationships without being divorced. There's nothing wrong with this, and it won't stop the spouse from getting a divorce when the time is finally ripe.  
Spouses often move on with their lives after separation, meet new people and get into new romantic relationships without being divorced. There's nothing wrong with this, and it won't stop the spouse 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.


===Foreign Divorce Orders===
===Foreign divorce orders===


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 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.


==The Law About Children==
==The law About children==


===Who is a child?===
===Who is a child?===


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.  
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.  


Although a court can make orders about the care of children who are under the age of 19, in practice the court usually won't make orders about children who are 15 and older. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live.
Although a court can make orders about the care of children who are under the age of 19, in practice the court usually won't make orders about children who are 15 and older. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live.
Line 160: Line 160:
===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(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.  


The ''Divorce Act'' doesn't go into any further detail than this except to say, at s. 16(10), that:
The ''[[Divorce Act]]'' doesn't go into any further detail than this except to say, at s. 16(10), that:


<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>
Line 168: Line 168:
This provision 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 spouses ''as is consistent'' with the child's best interests. That might be an equal or near-equal amount of time, or it might be every other weekend or it might be no time at all.
This provision 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 spouses ''as is consistent'' with the child's best interests. That might be an equal or near-equal amount of time, or it might be every other weekend or it might be no time at all.


===Orders for Custody and Access===
===Orders for 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 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.
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.


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.
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.


====Sole Custody and Joint Custody====
====Sole custody and joint custody====


Under s. 16(4), the court can order that one or more persons have custody of or access to a child.
Under s. 16(4), the court can order that one or more persons have custody of or access to a child.
Line 195: Line 195:
===How are orders for custody and access enforced?===
===How are orders for custody and access enforced?===


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 ''Court Order Enforcement Act'', and by a spouse and the Family Maintenance Enforcement Program under the provincial ''Family Maintenance Enforcement Act''.
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]''.


===How are orders for custody and access changed?===
===How are orders for custody and access changed?===
Line 207: Line 207:
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.
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.


==The Law About Child Support==
==The law about child support==


===Who is a child?===
===Who is a child?===


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." 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.


===Who is a spouse?===
===Who is a spouse?===
Line 219: Line 219:
===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 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]]''.


===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]]. 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:


#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 guardian, called ''split custody'';
*one more children live mostly with each guardian, called ''split custody'',
#the guardians share the children’s time equally or almost equally, called ''shared custody''; or,
*the guardians share the children’s time equally or almost equally, called ''shared custody'', or
#the payment of the tables amount would cause "undue hardship" to either the recipient or the payor.
*the payment of the tables amount would cause "undue hardship" to either the recipient or the payor.


===How is child support paid?===
===How is child support paid?===
Line 241: Line 241:
===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 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.


====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 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====
====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 lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18.  


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:
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:


#confirm the provisional order;
*confirm the provisional order,
#confirm the provisional order with some changes;
*confirm the provisional order with some changes,
#refuse to confirm the provisional order; or,
*refuse to confirm the provisional order, or
#send the application back to British Columbia for more information.
*send the application back to British Columbia for more information.


A provisional order has no effect until it is confirmed.
A provisional order has no effect until it is confirmed.


==The Law About Spousal Support==
==The law about spousal support==


===Who is entitled to ask for spousal support?===
===Who is entitled to 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 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.


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 s. 15.2(4):
Line 285: Line 285:
<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 [[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.


===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 the ''[[Divorce Act]]'', the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.  


===How is spousal support paid?===
===How is spousal support paid?===
Line 305: Line 305:
===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 s. 17(4.1) of the ''[[Divorce Act]]'', the court can change an order for spousal support if there has been a:


<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>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>
Line 311: Line 311:
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 and consider, under s. 17(7), the same factors about amount and duration as it considered in making the original order.


====When Both Spouses Live in British Columbia====
====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.
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 [http://canlii.ca/t/8mcr Supreme Court Family Rules] have special provisions for 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'' 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 lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18.  


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:
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:


#confirm the provisional order;
*confirm the provisional order,
#confirm the provisional order with some changes;
*confirm the provisional order with some changes,
#refuse to confirm the provisional order; or,
*refuse to confirm the provisional order, or
#send the application back to British Columbia for more information.
*send the application back to British Columbia for more information.


A provisional order has no effect until it is confirmed.
A provisional order has no effect until it is confirmed.
Retrieved from "https://wiki.clicklaw.bc.ca/index.php?title=Special:MobileDiff/7622"