Going Beyond Canada Divorce Act: Empower Your Journey

The Canada 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 Canada 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.

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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 Canada Divorce Act applies to Canada, and the above information is specific to the country’s divorce laws.

When Was Divorce Legalized in Canada?

Before the pivotal year of 1968, obtaining a divorce in Canada was a daunting task. The process was complex and varied by province, often necessitating an Act of Parliament. However, with the passage of the federal Divorce Act, a uniform divorce law was established across the country, significantly easing the process for couples to obtain a divorce despite the remaining legal and other challenges.

Canada Divorce Act – Timeline

1968 – Divorce Legalized in Canada

• The Divorce Act as passed in law on June 2, 1968
• 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. The act would later be amended multiple times, with significant changes occurring in 1985 to simplify and modernize the divorce process.

1985 – Major Overhaul of the Canada Divorce Act

• 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 – Modernize the Canada Divorce Act.

• 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.

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.

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.

The original Canadian Divorce Act was passed on June 2, 1968, allowing divorce based on adultery, cruelty, and separation. In 1986, significant amendments were made to modernize the process, introducing “no-fault” divorce based on separation for at least one year.

Further changes occurred in 1997, refining child support guidelines to ensure fair and consistent support payments. In 2021, the act was amended again to prioritize the child’s best interests, address family violence and better define parenting responsibilities.

These child-focused amendments, which aim to make the divorce process more equitable and have a positive impact on children, reflect the evolving societal values.

• No-Fault Basis: Divorce in Canada operates on a no-fault basis, focusing on the irretrievable breakdown of the marriage.
• Grounds for Divorce: Includes one-year separation, adultery, or cruelty.
• Reconciliation Period: Couples can reconcile for up to 90 days without affecting the separation period.
• Parenting Terms: “Custody” and “access” are replaced with “decision-making responsibility” and “parenting time.”
• Best Interests of the Child: Decisions must prioritize the child’s well-being.
• Family Violence: Broad definition including physical, emotional, and financial abuse.
• Relocation Rules: Requires 60 days’ notice for significant relocations.
• Mediation Encouraged: Promotes out-of-court settlements through mediation and arbitration.
• Child Support Guidelines: Established for consistency and fairness in support calculations.
• Same-Sex Couples: Recognized and governed by the same rules as opposite-sex couples.
• Modernized Language: Updated to reflect contemporary family dynamics and promote cooperative parenting.

We understand that if you’ve landed on this page, you’re likely navigating one of the most challenging periods of your life. The complexities of divorce can be overwhelming, and the emotional toll it takes can be immense. That’s why our team of Family Mediators and Certified Divorce Financial Analysts at DTSW is committed to providing a different approach: the Soft Landing Divorce Settlement Method.

Our method aims to simplify the divorce process, making it less stressful and more manageable. We 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 and confusion often associated with separation.

We offer the flexibility to collaborate via video conference or in-person at any of our six Greater Toronto mediation centers, located in Aurora, Barrie, North York, Vaughan, Mississauga, and Scarborough.

So, why navigate this challenging journey alone when you can have a team of experts guide you towards a softer landing?

Schedule a Get Acquainted Call today and take the first step towards a more peaceful and secure future.