Divorce Act

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Revision as of 10:47, 21 June 2019 by Jpboyd (talk | contribs)

The 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 federal Department of Justice, or on 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 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.

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.

The Divorce Act refers to children as children of the marriage. A child of the marriage is defined in s. 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(a) is under the age of majority and who has not withdrawn from their charge, or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 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:

For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent

The Divorce Act covers these basic subjects:

  • divorce,
  • custody of and access to children,
  • child support, and
  • spousal support.

The Divorce Act is going to change in 2020, as a result of 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:

  1. expand the things courts and parents have to think about when deciding what is in the best interests of children;
  2. require parents to protect the children from their conflict;
  3. require parents to try to resolve family law disputes out of court before going to court; and,
  4. 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.

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