Navigating the Divorce Act: What Every Canadian Should Know

What does the Divorce Act cover in Canada?

The Divorce Act, a significant piece of Canadian law, outlines the acceptable reasons for spouses seeking a divorce in Canada. The divorce system in Canada operates on a no-fault basis, with the sole ground for divorce being the irretrievable breakdown of a marriage. According to the contents of the Divorce Act, you can only file for divorce from your former spouse if you can demonstrate that your marriage has broken down based on the following circumstances:

You and your spouse have lived “separate and apart” for one year or more.
Your spouse has subjected you to physical or mental cruelty, making cohabitation intolerable.
Your spouse has committed adultery. To establish adultery, your spouse must provide written consent in the form of an affidavit confessing to the act. If they fail, you must present the court with evidence supporting the claim.

If you choose to base your divorce application on the fact that you and your spouse have lived separately and apart for at least one year, you may temporarily reconcile for a maximum of 90 days. This reconciliation can occur either before or after filing for divorce.

If your differences with your spouse are irreconcilable, you can proceed with the divorce application as if the 90 days spent together had not occurred. During the divorce proceeding, one of the court’s duties is to ensure there is no chance of reconciliation between the spouses.

If it becomes apparent from the nature of the case, the evidence presented, or the attitudes of either or both spouses that there is a possibility of reconciliation, the court may adjourn the proceedings. This adjournment is intended to allow both spouses to attempt reconciliation.

Thus, with the spouses’ consent or at the court’s discretion, a qualified individual with experience or training in family relationships and marriage counselling or guidance will be appointed to work with the couple. If, after fourteen days, reconciliation seems unlikely, the court decides to resume the divorce proceedings.

However, before this can occur, either one or both spouses must apply for the resumption of the proceedings. Please note that the Divorce Act applies to Canada, and the above information is specific to the country’s divorce laws.

1968 – Introduction of the Divorce Act

Date: July 2, 1968
Summary: The original Divorce Act was enacted, replacing the patchwork of provincial laws. It provided a uniform divorce law across Canada and allowed divorce on the grounds of adultery, cruelty, and separation for at least three years.

1985 – Major Overhaul

Date: 1985
Summary: The Divorce Act underwent significant changes, including reducing the one-year separation period. It also introduced the concept of “no-fault divorce” and emphasized the child’s best interests in custody and access decisions.

1997 – Child Support Guidelines

Date: May 1, 1997
Summary: The Federal Child Support Guidelines were introduced to provide a more consistent and fair approach to calculating child support payments.

2005 – Recognition of Same-Sex Couples

Date: 2005
Summary: Amendments were made to recognize same-sex couples, allowing them to divorce under the same rules as opposite-sex couples.

2019 – Bill C-78 Amendments

Date: June 21, 2019 (Came into effect on March 1, 2021)
Summary: Bill C-78 was passed to modernize the Divorce Act. The amendments included replacing terms like “custody” and “access” with “parenting orders” and “parenting time.” It also introduced measures to address family violence and to make the family justice system more accessible and efficient.

Divorce Act changes of March 1, 2021

The words “custody” and “access” aren't used anymore

The terms “custody” and “access” are no longer used in the Divorce Act as of March 1, 2021. Instead, new phrases have been introduced to address parental arrangements following a divorce. The term “custody” has been replaced by “decision-making duty.” This new term encompasses important parental decisions regarding the children’s health, education, language, and religion. These responsibilities may be shared between parents or assigned to one parent exclusively. A parent with a decision-making duty has the right to seek and receive information about their children’s health, education, and well-being. The time a parent spends with a child is now referred to as “parenting time.” During their allocated time, a parent with parenting time has the authority to make day-to-day decisions, including emergencies, concerning the child. They also have the right to access information regarding their children’s health, education, and well-being. “Contact” refers to the time spent with a child by an individual who is not a parent, such as a grandparent. Someone with contact does not have the authority to make daily decisions on behalf of the child and does not have an automatic entitlement to information about the child’s health, education, or well-being.

The “best interests of the child”

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 as defined in the new Divorce Act

Family violence is comprehensively defined in the updated Divorce Act. It encompasses various forms of abuse, such as physical, sexual, psychological, emotional, and financial abuse. Additionally, the term includes acts of harassment and threats directed toward individuals, pets, and property. When domestic violence becomes a concern, the court must assess any existing or pending civil protection, child protection, or criminal court proceedings. In cases involving the determination of the “best interests of a child,” the court must also consider the presence of family violence. In such situations, the court must consider a distinct set of factors, which include:

The frequency and severity of the family violence.
The existence of a pattern of coercive and controlling behaviour.
Any steps taken by the perpetrator of violence to prevent future acts of violence and enhance their parenting abilities.

Relocation of children

New restrictions came into effect on March 1, 2021, regarding relocating with or without a child. Under the law, a move is considered a “relocation” when it is expected to significantly impact a child’s relationship with someone who has parenting time, decision-making authority, or contact. According to the new law, anyone intending to relocate must provide written notice of at least 60 days. This notice must be given to anyone with parenting time, decision-making responsibility, or contact with the children. However, it’s important to note that if there is a history of domestic violence, notice may not be required. Suppose an individual has parenting time or decision-making authority. In that case, they have 30 days to object to the relocation by either filing a court application or providing written notice of their disagreement. On the other hand, a person with contact rights cannot object to a relocation plan.

Settlement outside of the courtroom

The updated Divorce Act promotes the resolution of family issues through methods outside of the courtroom. Mediation, collaborative negotiation, and arbitration are all encouraged as alternative options.

Other Changes

The 2021 Divorce Act has undergone numerous more revisions. Some relevant federal legislation, such as those governing child support enforcement and pensions, have also been altered. Visit the Department of Justice’s website to learn more about them.

Divorce Act changes of 1985

The 1985 Divorce Act is a federal legislation that governs the jurisdiction and grounds for divorce in Canada. It introduces changes to the rules regarding divorce proceedings, including the option to file a joint petition for divorce and the establishment of specific procedures for the effectiveness of a divorce decree. In the province of Ontario, a court has jurisdiction over divorce proceedings if either spouse or both have resided in Ontario for a minimum of twelve months before filing the divorce petition. Following the divorce, requests for modifications to the divorce decree can be made to any court in the province where either spouse resides, regardless of whether it is the same court that granted the original divorce. Under the Divorce Act, the sole ground for divorce is marriage breakdown, which can be demonstrated in two ways:

The spouses lived separately for at least one year before the divorce judgment.
The spouse against whom the divorce is sought either committed adultery or treated the other spouse with physical or mental cruelty that makes it intolerable to live together.

In cases where the ground for divorce is based on one year of separation, the separation period begins from the date the spouses started living apart. Either spouse can apply for divorce during the separation period, even before the one-year mark, but the divorce is not granted until one year has passed. If the spouses reconcile and resume cohabitation for more than ninety days during the one-year period, the one-year calculation restarts from the date of the last separation. Section 11 of the Divorce Act identifies certain activities that can prevent the granting of a divorce, including collusion between the spouses, failure to make support arrangements for the children, and seeking a divorce on cruelty grounds without condonation or connivance. The Divorce Act introduced the option of filing for divorce jointly, where both spouses can claim divorce based on the breakdown of the marriage after living apart for at least one year. A joint petition can include claims for spousal support, child support, child custody, and visitation. Alternatively, one spouse can file for divorce, and the other spouse may choose not to respond, resulting in an uncontested divorce that eliminates the need for court appearances. If spouses reconcile before filing a divorce petition or before fulfilling the one-year requirement of living separate, they remain married and do not need to take any action to maintain their marital status. However, if they attempt reconciliation and cohabit for more than ninety days during the one-year separation period, the waiting period for divorce restarts. This ninety-day reconciliation period allows spouses to attempt to repair the marriage without penalizing them if the reconciliation is unsuccessful. Negotiation and mediation are alternative methods to litigation for resolving differences and reaching a settlement agreement. In negotiation, both parties compromise and make concessions to include provisions they desire in the property settlement agreement. Mediation involves a professional mediator facilitating discussions between the spouses to help them reach a reasonable agreement on property, children, and support matters. Once a settlement is reached through negotiation or mediation, the parties express their agreement in a written separation agreement. This agreement is then presented to the court and incorporated into a divorce judgment, making it enforceable. According to the Divorce Act, a divorce judgment takes effect thirty-one days after it is granted. In certain cases, the court may reduce the thirty-one-day requirement if the parties agree and waive their right to appeal. However, a certificate of divorce, which is required for remarriage, is not available until thirty-one days after the judgment. The Divorce Act also addresses corollary issues such as spousal support, child custody, access, and child support. Corollary relief refers to the relief sought in addition to the divorce itself. The petitioner can request it or the respondent in the divorce petition. The divorce and corollary relief can be separated, allowing for a summary judgment on the divorce even if the parties cannot agree on issues such as child custody and support. During the finalization of the divorce, either spouse can request interim corollary relief, such as interim orders for child custody, while the remaining corollary issues are resolved.

Final Thoughts

In conclusion, the changes to the Divorce Act in Canada have significantly impacted how divorce proceedings are handled. The Act, a cornerstone of Canadian law, has evolved to reflect the realities of modern family relationships better. The amendments have expanded the grounds for divorce under the family law act to include marriage breakdown, adultery, physical or psychological abuse, and more. The Act now emphasizes the child’s best interests, taking into account factors such as the child’s views and preferences, any court action or order relevant to the child’s safety and well-being, and any family violence. The Act also provides a comprehensive definition of family violence, encompassing physical, sexual, psychological, and financial abuse and acts of harassment and threats directed towards individuals, pets, and property. The Act has also introduced new terms to replace “custody” and “access,” with “decision-making responsibility” and “parenting time” now being used to reflect the nature of parenting post-divorce better. The Act also outlines the rules for the proposed relocation of children, requiring written notice and providing a mechanism for objections. The changes to the Act encourage parties to resolve their issues outside of the courtroom, promoting methods such as mediation, collaborative negotiation, and arbitration. This shift towards alternative dispute resolution methods aligns with the Act’s overall goal of reducing the adversarial nature of divorce proceedings, thereby minimizing the potential harm to children and preserving family relationships where possible. In essence, the changes to the Divorce Act reflect a more nuanced understanding of family dynamics and the complexities of divorce. They underscore the importance of prioritizing the child’s best interests, addressing family violence, and promoting amicable resolution of disputes. These changes are a testament to the evolution of family law in Canada, demonstrating a commitment to adapt and respond to the changing needs of families nationwide. Would you like to learn more? Get in touch for a Get Acquainted Call to learn more about finding a separation agreement with a soft landing.

What Is the Family Law Act?

The Family Law Act was enacted by the Ontario Legislature in 1990. It governs the rights of spouses and dependants in various areas of family law, such as property, support, inheritance, prenuptial agreements, separation agreements, and other related matters. In a significant ruling in 1999, known as M. v. H., the Supreme Court of Canada established the equality of spousal rights for same-sex couples under Canadian law. This ruling profoundly impacted the interpretation of the Family Law Act. Family Law encompasses a wide range of legal issues related to family connections, including child protection, child custody and access, division of family property during separation and divorce, spousal and child support, adoption and parentage, and dependents’ relief applications. These matters are primarily regulated by provincial legislation in Ontario. If you have any further questions or need additional information, feel free to ask.

Divorce Act and the Family Law Act in Canada

The Divorce Act and the Family Law Act in Canada each have distinct applications depending on your marital status and the issues at hand. If you and your former spouse were never legally married, the Family Law Act governs your separation. Conversely, if you were married, you have the option to use either the Divorce Act or the Family Law Act. Your legal rights as parents under either the Divorce Act or the Family Law Act are largely similar. However, only the Divorce Act can grant a divorce, and only the Family Law Act can handle property division. It’s generally advised that if you’re applying for a divorce, you should use the Divorce Act. For all other matters, such as custody and access or issues affecting the child’s life, the Family Law Act is typically more appropriate. However, the Divorce Act has evolved to encompass more than just the administrative dissolution of a marriage. This is because divorce proceedings are often closely linked with Family Law issues, particularly those related to family property, child support, and child care.

External Links:

Divorce Act ( RSC , 1985, c. 3 (2nd Supp.)) – Laws.justice.gc.ca: This is the official government page for the Divorce Act, providing the full text of the law. It’s a reliable source for anyone wanting to understand the specifics of the Act.
RSC 1985, c 3 (2nd Supp) | Divorce Act | CanLII: CanLII is a non-profit organization managed by the Federation of Law Societies of Canada. CanLII’s goal is to make Canadian law accessible for free on the Internet. This website provides access to court judgments, tribunal decisions, statutes and regulations from all Canadian jurisdictions.
Divorce Law in Canada (96-3e): This link provides a historical perspective on the Divorce Act of 1968, which introduced the concept of permanent marriage breakdown as a ground for divorce.
Divorce Act (Canada) – Wikipedia: Wikipedia provides a comprehensive overview of the Divorce Act, including its history, provisions, and impact. It’s a good starting point for general information.
For years, Canada’s Divorce Act didn’t mention family violence. That changes today. – CBC: This CBC article discusses the recent changes to the Divorce Act regarding family violence. It’s a good resource for understanding the Act’s evolving approach to this important issue.
Divorce Law Basics – Canadian Legal FAQs: This page provides a basic overview of divorce law in Canada, including the role of the Divorce Act. It’s a good resource for anyone needing a simple, straightforward explanation.
Government of Canada announces coming into force of Divorce Act amendments: This is the official announcement from the Government of Canada about the coming into force of Divorce Act amendments. It’s a primary source for information about the changes.
Canada: Summary Of The Changes To The Divorce Act | Mondaq: This article provides a summary of the changes to the Divorce Act, including a broad definition of family violence. It’s a good resource for understanding the key changes in the law.

About the Author:

Ken Maynard ADFA, Acc.FM

I assist intelligent and successful couples in crafting clear and straightforward separation agreements, ensuring a smooth transition towards a secure future. This is achieved in four meetings or less, sidestepping the excessive conflicts, confusion, and costs often associated with legal proceedings. You have the option to collaborate with me via video conference or in-person with a DTSW associate at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

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