Divorce Act of Canada – changes and attempts to reform

It is essential to understand the requirements of the law when filing for a divorce from your task, as doing so without understanding the law is like traveling an unfamiliar route blindfolded. Filing for divorce from your spouse is a challenging enough task without having to do so blindfolded. 

The Canadian law that covers divorce proceedings is the Divorce Act of Canada, and it addresses all matters pertinent to filing for a divorce. Parliament enacted the Divorce Act of Canada in 1968 when it first introduced the concept of marriage breakdown as grounds for divorce. It also allowed spouses to file for divorce on fault-based grounds, the most important of which were adultery, cruelty, and desertion.

The Act, however, went through a series of amendments from 1968 to 2021, where the grounds for divorce were then revised to include marriage breakdown, adultery, and physical or mental cruelty. This article explains all you need to know about filing for a divorce under the Divorce Act of Canada.

The Federal Divorce Act of Canada is the Canadian law that applies to married people who want to get divorced. The Act states the law for divorces in Canada and the rules for dealing with all divorce-related issues. These issues are called “corollary reliefs,” and they include the following: 

• child support orders
• spousal support orders
• priority to child support and situations that might warrant it
• parenting orders
• parenting plan
• contact orders (orders granting time with a child to people other than the child’s parents)
• change in place of residence
• what happens when spouses live in different provinces in Canada 

Each province has laws about everything except divorce, as the Divorce Act of Canada applies to every province in Canada. However, provinces have their own laws that deal with other aspects of divorce, such as property division and rules regarding the dissolution of marriage. Thus, the process of getting a divorce may vary from province to province, and it is essential to know what works in the province where you reside. 

The rules for divorce in Canada are simple, and they are: 

• you need to apply to a court for the divorce, and
• you must meet the eligibility requirements for a divorce

The eligibility requirements for divorce in Canada are as follows:

• You are legally married to your spouse under the laws of Canada or another country, and your marriage is recognized in Canada. 
• The marriage has broken down.
• You or your spouse has resided in the Canadian province or territory where you apply for your divorce for at least a full year before applying for the divorce. 

However, if you do not meet the residency requirement for filing a divorce in Canada, you may be able to file your divorce if you meet the following criteria:

• You married in Canada, and
• You cannot undo your divorce in the country you or your spouse currently resides in because that country does not recognize your marriage.

Note, however, that your divorce will have to be under Canada’s Civil Marriage Act instead of the Divorce Act.

The Divorce Act of Canada covers the acceptable grounds for which spouses may file for divorce in the country. Canada has a no-fault system when it comes to divorce; the only ground for divorce in the Divorce Act is that a marriage has broken down irretrievably. Therefore, per the Divorce Act, you can only file for divorce from your spouse if you can show that your marriage has broken down in any of the following scenarios:

• You and your spouse have been living “separate and apart” for one year or more.
• Your spouse has been physically or mentally cruel to you to the extent that you can no longer tolerate living with your spouse. 
• Your spouse has committed adultery***

***To show that your spouse committed adultery, they must give an affidavit stating that they indeed committed adultery. Failing this, you must present the court with evidence proving the same. 

If you base your application on the fact that you and your spouse have been living separately and apart for at least one year, you may live together for up to 90 days to try reconciliation. You may choose to do this either before or after you file for the divorce. If you find that the differences between you and your spouse are irreconcilable, you can continue with your application for the divorce as though you had not spent the 90 days together. 

In the divorce proceedings, one of the duties of the court is to satisfy itself that there is no possibility of reconciliation between both spouses. Thus, if it appears from the nature of the case, the evidence provided, or the attitude of either or both spouses that there is a possibility of reconciliation, the court will adjourn the proceeding. The purpose of the adjournment is to provide both spouses with the opportunity to try to reconcile with each other. 

So, either with the spouses’ consent or at the court’s discretion, the court will nominate a person with experience or training in marriage counseling or guidance to work with the couple. If, after fourteen days, there is no hope of reconciliation, the court will resume the divorce proceeding. First, however, either or both spouses must apply for the resumption of proceedings.

While the Divorce Act is a federal law, provinces and territories in Canada have their processes that a separating couple will follow for the divorce. Thus, it behooves you to find out the process, fill out the suitable forms for your province or territory, and file them in the appropriate court. Subject to your province or territory, you may be able to get the required forms from any of the following places:

• The office of your province’s or territory’s Ministry of Justice or lawyer General,
• Your provinces official website,
• Your province’s courts, or
• Bookstores around you

However, it is better that you retain the services of an lawyer who will do the work for you. That way, you can concentrate your energies on getting through the divorce. Your lawyer will keep you informed of pertinent things like your rights and responsibilities in the divorce, how the law applies to your situation, and the attendant costs for the application. They will also inform you of other pertinent documents you may need to present to the court. 

Getting a divorce from your spouse is a traumatic enough experience without adding the headache of other issues that come along with the divorce. Thus, it will probably be best that you and your spouse agree on those other issues before you apply for the divorce. The issues include:

• Child support,
• Custody,
• Parenting agreements,
• Spousal support, and 
• Property division

If you cannot agree on these issues, the court will decide them for you, as they are covered in the Divorce Act. However, this may include the time it will take for you to complete the divorce. You may also want to explore other family justice services, such as mediation, to help you sort out the knotty issues you and your spouse may have. 

The phrases “custody” and “access” are no longer used in the Divorce Act as of March 1, 2021. Instead, new phrases are being used to discuss parental arrangements following a divorce.

The term “custody” has been replaced by “decision-making duty.” The new word encompasses critical parenting decisions concerning children’s health, education, language, and religion. These obligations might be divided between parents or assigned solely to one parent. A parent who makes decisions for their children has the right to seek and receive information on their health, education, and well-being.

The amount of time a parent spends with a child is referred to as parenting time. During their time with the child, a parent with parenting time has the right to make day-to-day decisions (including emergency ones) about the child. They also have the right to inquire about and receive information regarding their children’s health, education, and well-being.

Contact refers to time spent with a child by someone who isn’t a parent, such as a grandparent. Someone who has contact with a child does not have the authority to make daily decisions about that child. They also have no entitlement to information regarding the health, education, or well-being of the children.

When a court reaches a decision about a child, it must be driven solely by the child’s best interests. New as of March 1, 2021 is a list of particular elements that the court and parents must consider when considering what is in the best interests of a child.

• the views and preferences of the child.
  any court action or order relevant to the child’s safety and well-being
• any family violence

The court must prioritize the child’s physical, emotional, and psychological safety, security, and well-being while assessing these and other criteria.

Family violence is defined in the new Divorce Act. It encompasses all forms of physical, sexual, psychological, emotional, and financial abuse. Harassment and threats of harm to people, pets, and property are also included in the term.

When domestic violence is an issue, the court will have to evaluate any existing or pending civil protection, child protection, or criminal court actions.
When deciding on the “best interests of a child,” the court must also consider if family violence is a role. If that’s the case, the court will have to consider a whole new set of factors, including:

• how often and how serious the family violence is
• whether there is a pattern of coercive and controlling behaviour
• whether the person who has been violent has taken any steps to prevent future violence and improve their parenting

New restrictions apply beginning March 1, 2021, to what happens when someone wishes to move away with or without their child. The law refers to a move as relocation when it is expected to have a “substantial influence” on a child’s relationship with someone who has parenting time, decision-making authority, or contact.

When someone decides to relocate, they must give 60 days’ written notice under the new law. Anyone who has parenting time, decision-making responsibility, or contact with children must receive this. (If there is domestic violence, notice may not be required.) Someone with parenting time or decision-making authority has 30 days to object to the relocation by submitting a court application or giving written notice of their disagreement. A person with contact is unable to disagree to a relocation plan.

The new Divorce Act encourages people to try to work out their family issues outside of the courtroom. Mediation, collaborative negotiation, or arbitration are all options.