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 “best interests of the 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
- 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
Settlement outside of the courtroom
Other Changes
Divorce Act changes of 1985
- 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
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
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.
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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Ken Maynard ADFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/May 23, 2023
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Ken Maynard ADFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/May 20, 2022
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Ken Maynard ADFA, Acc.FMhttps://divorcethesmartway.ca/author/wardman/June 1, 2023