Divorce (3:IV)

A. Legislation

The federal legislation governing divorces in Canada is the DA. The DA applies to legally married couples, including same sex couples as long as residency requirements for one spouse are met. It does not apply to common law couples or other unmarried couples. The provincial family law legislation in BC is the FLA, which applies to people in all relationships. The reason there are two statutes governing this area is the division of powers under sections 91 and 92 of the Constitution Act, 1867, which gives the federal government jurisdiction over “Marriage and Divorce” (s 91), while giving provincial governments jurisdiction over “The Solemnization of Marriage in the Province” and “Property and Civil Rights” (s 92).

B. Jurisdiction

1. Supreme Court

The Supreme Court of British Columbia has jurisdiction over both the DA and the FLA. Because all divorce claims must be heard under the DA, the Supreme Court has exclusive jurisdiction over divorce claims. The Supreme Court has concurrent jurisdiction with Provincial Court over guardianship, parenting arrangements and support for children (including common law couples) while division of property is under exclusive jurisdiction of the Supreme Court. If a Supreme Court order for custody, access, or support is made under the DA, that order supersedes any existing FLA order. However, given the new FLA and change of terms under the provincial legislation (custody, guardianship and access to guardianship, parenting arrangements and contract), there is likely to be litigation about which act applies and when.

An uncontested divorce does not require a personal appearance in Supreme Court. Evidence can be submitted by affidavit with the application for the Divorce Order, called a “Desk Order Divorce”. In fact, parties are required to submit applications for Divorce by way of a “Desk Order” unless there is a reason to bring it on by way of application in Chambers.

2. Provincial Court

The Provincial Court only has jurisdiction to hear matters under the FLA and cannot hear any claim under the DA, including divorce applications. The Provincial Court can make orders or vary original Provincial Court orders relating to guardianship, parenting arrangements, contact, child support, and spousal support. The Court does not have jurisdiction to deal with claims for the division of property under the FLA.

C. Requirements for a Divorce

1. Jurisdiction

To obtain a divorce in a particular province, one of the parties to the claim must have been “ordinarily resident” in that province for at least one year immediately preceding the presentation of the Notice of Family Claim (DA, s 3(1)). A person can be “ordinarily resident” in a province and still travel or have casual or temporary residence outside the province.

An Act to Amend the Civil Marriage Act received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce where they live.

There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and the proceeding filed first is not discontinued within 30 days after it is presented, the first Court will have exclusive jurisdiction (DA s 3(2)) to hear and determine the divorce proceeding. Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.

2. A Valid Marriage: Proof of Marriage

Section 52(1) of the Evidence Act, RSBC 1996, c 124 states that if it is alleged in a civil proceeding that a ceremony of marriage took place in BC or another jurisdiction, either of the following is evidence that the ceremony took place:

• a) the evidence of a person present at the ceremony (less common); or
• b) a document purporting to be the original or a certified copy of the certificate of marriage (the church certificate is not acceptable). Note: A certified copy is often not accepted by the Registry and all efforts should be made to obtain the original marriage certificate.

The simplest way is to use a certificate of marriage or registration of marriage. Only if the certificate or registration of marriage is not available should the evidence of a person present at the ceremony be used. An official translation of the marriage certificate and a translator’s affidavit must be provided if the marriage certificate is in any language other than English. French language marriage certificates must also be translated. The Court may require further proof that the marriage is valid if the documents evidencing the marriage appear questionable. Immigration and landing documents can be used as additional proof of marriage in these situations. In British Columbia, a party can obtain an original marriage certificate from Vital Statistics by filling out a request form. See the Vital Statistics website.

If a marriage certificate absolutely cannot be provided (e.g. the records cannot be obtained from the parties’ country of origin or were destroyed), and if there are no witnesses to the marriage available, a party to the divorce proceeding can attempt to prove her or his marriage by attesting to “cohabitation and reputation” in an affidavit. The Court will hear evidence of the couple’s “cohabitation and reputation” from the parties and witnesses. Where there are witnesses to the marriage available, a witness will be required to sign and swear an affidavit stating that: he or she was at the ceremony, it was conducted in accordance with the laws and religion of the country where the parties married, and to the best of his or her knowledge, the two parties were in fact married according to their law and traditions.

3. Grounds for Divorce

In accordance with s 8(1) of the DA, either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty. For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation.

Note the decision of McPhail v McPhail, 2001 BCCA 250, in which the Court found that, where both the grounds of cruelty and the grounds of a one year separation for divorce exist, it would be appropriate for a trial judge to exercise his or her discretion to grant the divorce on the grounds of a one year separation (no-fault) instead of on cruelty (fault). This was extended in Aquilini v. Aquilini, 2013 BCSC 217 to state that a one year separation should be used as the grounds for divorce instead of adultery where both exist.

D. Divorces Based on Separation: s 8(2)(a)

1. Separation - One Year

Under the DA, neither party needs to prove “fault” to get a divorce. Most divorces will proceed under s 8(2)(a), separation for a period of at least one year. Although the pleadings starting the action can be filed immediately upon separation, the Divorce Order cannot be sought until one day after the parties have been separated for one year.

The ground of separation requires recognition by one of the parties that the marriage is at an end. It is not necessary that the parties form a joint intention. It is also not necessary that the two parties live separately.

2. 90-Day Reconciliation Period

Any number of reconciliation attempts may be made during the separation year without affecting the application for divorce. However, if:

• the length of any reconciliation attempt exceeds 90 days; or
• the aggregate total length of reconciliations exceeds 90 days, then the time for calculating the one year period of separation must start over again with the first day of calculation being the first day of separation after the 90+ day reconciliation ended (s 8(3)(b)(ii)).

3. Living Under the Same Roof

Some couples may choose to continue to live under the same roof after they have decided to separate for financial reasons or for the sake of the children. Indications of separation include: they have separate bank accounts, separate bedrooms, cook their own meals, do their own laundry, etc. (i.e., if there is an obvious severance of the conjugal relationship), they can still be considered separated.

This is the case for the DA, though it should be noted that the Canada Revenue Agency (CRA) takes a different position when it comes to taxes and child benefit payments. The CRA does not recognize living separate and apart under the same roof for the purpose of tax benefits unless there is a separate suite in the home.

E. Divorces Based on Cruelty or Adultery: Divorce Act, s 8(2)(b)

Divorces based on separation require at least one year to pass before the divorce order can be granted. Divorce claims based on the ground of cruelty or adultery can result in an immediate divorce.

1. Adultery: s 8(2)(b)(i)

Adultery is voluntary sexual intercourse between a married person and a person other than his or her spouse. The meaning of “adultery” includes sexual acts outside the marriage with a person of the same sex (SEP v DDP, [2005] BCJ No 1971 (BCSC)). The standard of proof for adultery is the same as the civil standard: the Court must be satisfied on a balance of probabilities (see Adolph v Adolph (1964), 51 W.W.R. 42 (BCC.A)). Proof can come in the form of an affidavit from one or both of the adulterers.

The Court will require proof that the adulterous conduct was not forgiven by the innocent spouse (condonation) and that the conduct was not conspired towards for the purposes of obtaining the divorce (collusion and connivance).

2. Physical or Mental Cruelty: s 8(2)(b)(ii)

The test for cruelty is subjective. The question asked in a cruelty case is whether the conduct is of such a kind as to render intolerable the continued cohabitation of the spouses. There is no objective standard in the sense that certain conduct will constitute cruelty in every case while other conduct will not. The respondent’s conduct may constitute cruelty even if there is no intent to be cruel. What has to be determined is the effect of the conduct on a particular person, rather than the nature of the acts committed (Burr v Burr, [1983] BCJ No 743).

If the spouses are still cohabiting, the Court will infer that the conduct was not intolerable unless the claimant had no means or opportunity for leaving (Cridge v Cridge (1974), 12 RFL 57, (BCSC)). Lack of income, children at home, and a difficulty with the English language may qualify as reasons for continuing cohabitation.

Again, to make a case based on cruelty, there must be proof on the balance of probabilities. Things that could be entered as evidence in this area include medical evidence such as charts and doctors' statements.

F. Why a Divorce Application May Be Rejected

1. Collusion

Collusion is, simply put, both parties conspiring to obtain a divorce. A more expansive definition can be found in s 11(4) of the DA.

Collusion is an absolute bar to a divorce on the grounds of cruelty or adultery.

2. Condonation

Condonation consists of forgiving a marital offence that would otherwise be a ground for divorce. There are three requirements: knowledge of the matrimonial offence by the claimant; forgiveness of the offence; and actual reinstatement of the relationship. A single attempt or a series of attempts at reconciliation totalling less than 90 days does not qualify as condonation.

Condonation is a discretionary bar to a divorce. If the matter is raised, the onus is on the claimant to disprove it.

3. Connivance

Connivance occurs when one spouse encourages the other to commit adultery or cruelty. There must be a “corrupt intention... to promote or encourage either initiation or the continuance... or it may consist of a passive acquiescence....”. Keeping watch on the other spouse does not constitute passive acquiescence: Maddock v Maddock, [1958] OR 810 at 818, 16 DLR (2d) 325 (CA).

Connivance is a discretionary bar to a divorce, similar in effect to condonation.

4. Discretion of the Court

In cases of condonation or connivance, the claim for divorce will be dismissed unless, in the Court’s opinion, the public interest would be better served by granting the divorce.

The Court may also reject an application for divorce where: a divorce is pending in another jurisdiction; a marriage certificate or registration of marriage has not been provided; there are defects in the application materials; or there are defects in the form of draft order provided with the application. The Court registry is very particular about the content and form of both the applications materials and the draft order, which may result in the rejection of the application before it gets to a judge.

5. Divorce Will Not Be Granted Until Child Support Is Settled

In a divorce proceeding, it is the duty of the Court to satisfy itself that “reasonable arrangements” have been made for the support of any children of the marriage, typically having regard to the Federal Child Support Guidelines. If such arrangements have not been made, s 11(1)(b) of the DA requires the Court to stay the granting of the divorce. When stepchildren are involved, the Court will determine child support requirements for a stepfather or stepmother on a case-by-case basis. The definition of “child of the marriage” in s 2 of the DA is broad enough to include children for whom one spouse “stands in the place of a parent”.

G. Separation Agreements

1. General – Family Law Act

The FLA defines a written agreement as an agreement that is in writing and signed by all parties (s 1 FLA). A separation agreement is a legal contract that generally provides for a division of property and debt, the support of a dependent spouse, and for the support, guardianship and parenting arrangements of a child by a parent. Separation agreements are no longer triggering events as they were under the FRA. The triggering event entitling spouses to an interest in family property is now the date of separation.

A separation agreement can deal with some or all of these issues. It can eliminate much of the emotional disturbance involved in courtroom proceedings, and provide the parties with an arrangement to which they have both agreed, as opposed to a Court order, with which neither party may be happy. Part 2, Section 6 outlines that parties are able to make agreements to resolve disputes and respecting matters at issue in a family law dispute and subject to the FLA, the agreement is binding on the parties.

The overarching test for any changes to agreements made regarding Part 4 of the FLA (guardianship, parenting arrangement contact) is the best interest of the child test in section 37 of the FLA. Children’s interests are now the only consideration.

A separation agreement between spouses can also deal with division of family property and family debt, as well as any assets excluded from division.

It is essential that each spouse be aware of the potential influence of that agreement on future expectations, and the legal implications of that agreement on questions of ownership and title in family assets. Each spouse should have independent legal advice, even in cases where the parties seem to be in agreement on the terms of a separation agreement. If a separation agreement has been signed and one party did not have independent legal advice this may go towards evidence of unfair contracting and it may be possible to overturn the contract.

It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the FLA that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the FLA.

In addition to property settlements, guardianship or parenting arrangements, and support, the separation agreement may embrace any other matters the parties wish to include in it, and often includes estate provisions, releases, penalties for breach of the contract, etc. A separation agreement can be more flexible than a Court order. For example, a Court order cannot contain contingent terms, but a separation agreement can.

NOTE: Because of the complicated nature of separation agreements, clients who wish to make a separation agreement should be referred to family law referrals.