Divorce (3:IV): Difference between revisions
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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. | 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. | |||