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.