Difference between revisions of "Divorce Act"

From Clicklaw Wikibooks
Jump to navigation Jump to search
(From staging May 2022)
 
(8 intermediate revisions by 3 users not shown)
Line 1: Line 1:
The ''[http://canlii.ca/t/7vbw Divorce Act]'', RSC 1985, c 3 (2nd Supp) is a federal law that you can find, along with other federal laws, at the website of the [http://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html federal Department of Justice], or on [http://canlii.ca/t/7vbw CanLII], a free website for searching Canadian court decisions and legislation. Because of a constitutional rule called the "doctrine of paramountcy," the ''Divorce Act'' is considered to be "superior" to the provincial ''[[Family Law Act]]''. As a result, if you are entitled to ask for an order under the ''Divorce Act'' about child support or spousal support, you probably should.
===The ''Divorce Act''===
The ''[[Divorce Act]]'' is a federal law that you can find, along with other federal laws, on the website of the federal [http://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-1.html Department of Justice] or on [http://canlii.ca/t/7vbw 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:


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 are not legally married, the ''Family Law Act'' is the only game in town. Although the court may allow someone who isn't a spouse  to apply under the ''Divorce Act'' for an order relating to custody of or access to a child, that person must get the court's permission first, and the spouses must have already started a court proceeding between each other.
*getting divorced,
 
*decision-making responsibility,
You must also be ''ordinarily resident'' in your province for at least one year before you can ask for an order under the ''Divorce Act''. This means that you might have to delay filing for a divorce if you've moved to a new province within the last year.  
*parenting time and contact with children,
*moving away, with or without children
*child support, and
*spousal support.


The ''Divorce Act'' refers to children as ''children of the marriage''. A child of the marriage is defined in s. 2(1) as:
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:


<blockquote><tt>A child of two spouses or former spouses who, at the material time,</tt></blockquote>
<blockquote><tt>A child of two spouses or former spouses who, at the material time,</tt></blockquote>
Line 11: Line 15:
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other <span class="noglossary">cause</span>, to withdraw from their charge or to obtain the necessaries of life.</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other <span class="noglossary">cause</span>, to withdraw from their charge or to obtain the necessaries of life.</tt></blockquote></blockquote>


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 and older if the child cannot support him- or herself. Since only people qualifying as ''spouses'' are obliged to pay child support, the definition of child of the marriage is expanded in s. 2(2) to include stepparents:
In other words, a "child of the marriage" is someone who is less than 19 years old &mdash; the age of majority in British Columbia &mdash; 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.
 
<blockquote><tt>For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes</tt></blockquote>
<blockquote><blockquote><tt>(a) any child for whom they both stand in the place of parents; and</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) any child of whom one is the parent and for whom the other stands in the place of a parent</tt></blockquote></blockquote>


The ''Divorce Act'' covers these basic subjects:
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.''


*divorce,
Married spouses can ask the court for:
*custody of and access to children,
*child support, and
*spousal support.


The ''Divorce Act'' is going to change in 2020, as a result of [https://www.parl.ca/DocumentViewer/en/42-1/bill/C-78/third-reading Bill C-78]. Among other things, how we talk about the care of children will change. We will be talking about "parenting orders" and "parenting plans" that cover "decision-making responsibilities," "parenting time" and "contact" with a child. Other changes will:
*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.  


#expand the things courts and parents have to think about when deciding what is in the best interests of children;
If there is a court proceeding between married spouses, someone who is not a spouse &mdash; like a grandparent, an aunt or uncle, or another person with a special connection to a child of the marriage &mdash; 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.
#require parents to protect the children from their conflict;
#require parents to try to resolve family law disputes out of court before going to court; and,
#implement new rules for when one parent wants to move with a child away from the other parents.


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

Latest revision as of 22:56, 18 May 2022

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.