Divorce Act

From Clicklaw Wikibooks
Jump to navigation Jump to search

The Divorce Act[edit]

The Divorce Act is a federal law that you can find, along with other federal laws, on the website of the federal Department of Justice or on CanLII, a free website for searching Canadian court decisions and legislation. The Divorce Act became law in 1985. A number of very important changes to the act became law on 1 March 2021 and changed how we talk about parenting children and the best interests of children. The current Divorce Act covers these main subjects:

  • getting divorced,
  • decision-making responsibility,
  • parenting time and contact with children,
  • moving away, with or without children
  • child support, and
  • spousal support.

The Divorce Act only applies to married spouses, people who are, or were, married to each other by a marriage commissioner or a religious official licensed to perform marriages. (If you're not legally married, the Divorce Act doesn't apply to you, and the Family Law Act is the only game in town.) The Divorce Act refers to children as children of the marriage. A "child of the marriage" is defined in section 2(1) as:

A child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In other words, a "child of the marriage" is someone who is less than 19 years old — the age of majority in British Columbia — or who is 19 or older if the child cannot support themselves for some reason, like going to college or university. The definition of "child of the marriage" is expanded in section 2(2) of the Divorce Act to include stepparents.

Not only do you have to be married to ask for an order under the Divorce Act, you also have to be habitually resident in your province for at least one year before you can ask the court of your province for the order. If you've lived in your province for less than 12 months, and your spouse has been habitually resident in their province for at least a year, you can ask the court there for an order under the Divorce Act.

Married spouses can ask the court for:

  • an order for their divorce,
  • an order about decision-making responsibilities for any children of the marriage,
  • an order about parenting time,
  • an order that they pay or receive child support, and
  • an order that they pay or receive spousal support.

If there is a court proceeding between married spouses, someone who is not a spouse — like a grandparent, an aunt or uncle, or another person with a special connection to a child of the marriage — can ask for an order that they have contact with the child. However, people who are not spouses must get permission from the court before they can ask for a contact order.

JP Boyd on Family Law provides extensive coverage of the Divorce Act, including a chapter on Divorce Act Basics.