5,109
edits
Difference between revisions of "Divorce (3:IV)"
Jump to navigation
Jump to search
no edit summary
| Line 4: | Line 4: | ||
== A. Legislation == | == 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 [http://canlii.ca/t/8q7k ''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). | 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 [http://canlii.ca/t/8q7k ''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 == | == B. Jurisdiction == | ||
| Line 10: | Line 10: | ||
=== 1. Supreme Court === | === 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 | 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 commonlaw 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 regarding 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. | 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. | ||
Note that as of March 1, 2021, the term 'custody' under the ''DA'' is repealed, and the term 'parenting time' will be used in its place. | |||
=== 2. Provincial Court === | === 2. Provincial Court === | ||
| Line 27: | Line 29: | ||
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. | 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. | ||
Effective March 1, 2021, the updated s 3(2) will remove the 30-day limitation on discontinuing a first action. | |||
=== 2. A Valid Marriage: Proof of Marriage === | === 2. A Valid Marriage: Proof of Marriage === | ||
| Line 36: | Line 40: | ||
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 [https://www.vs.gov.bc.ca/marriage/certificate.html Vital Statistics website]. | 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 [https://www.vs.gov.bc.ca/marriage/certificate.html 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 | 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 their 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: they were 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 their knowledge, the two parties were in fact married according to their law and traditions. | ||
=== 3. Grounds for Divorce === | === 3. Grounds for Divorce === | ||
| Line 42: | Line 46: | ||
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 (see below). 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. | 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 (see below). 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 [http://canlii.ca/t/4zgl ''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 [http://canlii.ca/t/fw3t1 ''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. | Note the decision of [http://canlii.ca/t/4zgl ''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 [http://canlii.ca/t/fw3t1 ''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) == | == D. Divorces Based on Separation: s 8(2)(a) == | ||
| Line 70: | Line 74: | ||
=== 1. Adultery: s 8(2)(b)(i) === | === 1. Adultery: s 8(2)(b)(i) === | ||
Adultery is voluntary sexual intercourse between a married person and a person other than | Adultery is voluntary sexual intercourse between a married person and a person other than their 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, see below). | 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, see below). | ||
| Line 78: | Line 82: | ||
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). | 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 | 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 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. | 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. | ||
| Line 110: | Line 114: | ||
=== 5. Divorce Will Not Be Granted Until Child Support Is Settled === | === 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 | 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 stepparent 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 == | == G. Separation Agreements == | ||
| Line 167: | Line 171: | ||
Under s 15 of the ''DA'', for the purposes of child support, “spouse” means either of two persons a male or female who are married to each other (s 2(1)) and also includes “former spouse”. This means that a former spouse may be able to get a support order after the divorce has been granted. | Under s 15 of the ''DA'', for the purposes of child support, “spouse” means either of two persons a male or female who are married to each other (s 2(1)) and also includes “former spouse”. This means that a former spouse may be able to get a support order after the divorce has been granted. | ||
The amended ''DA'' has repealed s 15 and updated the definition of “spouse” under s 2(1) to reflect the sections under which the meaning of “spouse” is inclusive of “former spouse.” This change will come into effect March 1, 2021. | |||
=== 5. Mediation === | === 5. Mediation === | ||
| Line 188: | Line 194: | ||
=== 8. Divorce Law and First Nations People === | === 8. Divorce Law and First Nations People === | ||
Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1996, c 23 | Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1996, c 23]. The ''Indian Act'' sets out guidelines for and definitions of Aboriginal people, and defines who is eligible for “status”. Only “status” people are affected by the legislation under the ''Indian Act''. One spouse’s treaty payment may be directed to the other “where the Ministry is satisfied he deserted his spouse or family without sufficient cause, conducted himself in such a manner as to justify the refusal of his spouse or family to live with him, or has been separated by imprisonment from his spouse and family” (''Indian Act'', s 68). As well, reserve land allocated by a certificate of possession cannot be dealt with in the same manner as a matrimonial home as the rules in the ''FLA'' do not apply to reserve land. However, in such cases, the Court may ask that the spouse in possession of the reserve land pay cash compensation to the other spouse (''George v George'' (1997), 30 BCLR (3d) 107). Keep in mind that most provincial laws apply to Aboriginal people and reserve land, unless they are in direct conflict with the ''Indian Act''. Further, courts will almost always take the cultural identity of the children into consideration when making an order for custody; see e.g. [https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/1699/index.do ''D.H. v H.M.'', [1999<nowiki>]</nowiki> SCJ No 22], and see [http://canlii.ca/t/51z8 ''Van de Perre v Edwards'', [2001<nowiki>]</nowiki> SCJ No 60]. | ||
Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46). | Furthermore, for First Nation Peoples living on reserves, the ''Family Homes on Reserves and Matrimonial Interests or Rights Act'' (S.C. 2013, c. 20) applies and can affect the division of assets in the case of divorce or separation (see ss 43, 46). | ||
| Line 199: | Line 205: | ||
*(c) Med/Arb, which is a combination of both Mediation and Arbitration. | *(c) Med/Arb, which is a combination of both Mediation and Arbitration. | ||
*(d) Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules'' | *(d) Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules'' | ||
*(e) Family Case Conferences pursuant to Rule 7(1) of the ''Provincial Court (Family) Rules'' | *(e) Family Case Conferences pursuant to Rule 7(1) of the ''Provincial Court (Family) Rules'' | ||
# The Provincial Court (Family) Rules will be repealed in May 2021 and the new Provincial Court Family Rules will take effect. Once this occurs, Family Management Conferences will replace Family Case Conferences. | |||
*(f) The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/ | *(f) The use of a Parenting Coordinator to address ongoing parenting and communication issues between the parties after an order or agreement has been reached for the parenting arrangement. For more information see http://www.bcparentingcoordinators.com/ | ||
| Line 210: | Line 217: | ||
=== 2. Lawyers === | === 2. Lawyers === | ||
All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and | All lawyers will expect an initial payment from their client. The amount of the initial retainer will vary depending on the lawyer’s hourly rate and their estimation of the complexity of the case. The cost of a simple, uncontested divorce begins at approximately $1,000 and up. Advise clients to use the [http://www.cbabc.org/for-the-public/lawyer-referral-service Lawyer Referral Service] (604) 687-3221 or 1-800-663-1919. The first half-hour will only cost $25, with the lawyer charging their standard rate thereafter. | ||
To minimize costs when retaining a lawyer, clients should be advised to: | To minimize costs when retaining a lawyer, clients should be advised to: | ||
*negotiate the cost of legal services in advance, so they do not come as a surprise; | *negotiate the cost of legal services in advance, so they do not come as a surprise; | ||
* | *collect all necessary documentation rather than pay the lawyer to do it; | ||
*call the lawyer only when imparting necessary information (every phone call costs money); | *call the lawyer only when imparting necessary information (every phone call costs money); | ||
*use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate; | *use Family Court and Supreme Court resources (such as Family Justice Counsellors) if appropriate; | ||