Difference between revisions of "Divorce (3:IV)"

{{REVIEWED LSLAP | date= July 12, 2023}}

The federal legislation governing divorces in Canada is the ''Divorce Act'' (''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 ''Family Law Act'' (''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'']. This 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).

[http://www.parl.gc.ca/legisinfo/BillDetails.aspx?billId=5387766&Language=E&Mode=1 ''An Act to Amend the Civil Marriage Act''] received Royal Assent and came into force on June 26, 2013. It allows non-resident couples married in Canada to divorce in Canada if they cannot get a divorce in their country of residence.   

There must not be another divorce proceeding involving the same parties in another jurisdiction. If two actions are pending and were commenced on different days (divorce, corollary relief or variation), the court in which a divorce proceeding was commenced first has exclusive jurisdiction unless the first proceeding is discontinued (DA s 3(2)). As of March 1, 2021 there is no requirement that the first proceeding be discontinued within a certain amount of time to instead move forward with the second proceeding.

 

If two proceedings were commenced on the same day, the parties have 40 days to discontinue one of such proceedings (divorce, corollary relief, or variation) (DA s 3(3), 4(3), 5(3)). If neither proceeding is discontinued within the allotted time, an application can be made by either or both of the parties to have the Federal Court determine which court retains jurisdiction by applying the following:

 

 

 

*c. In any other case, the court that the Federal Court determines most appropriate retains jurisdiction.

 

Parties must submit a clearance form, filled out online and printed, at the time of filing the Notice of Family Claim and Marriage Certificate.

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 must 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 difficulty with the English language may qualify as reasons for continuing cohabitation.  

It is possible that a separation agreement containing provisions for support may be regarded by the Court as evidence of liability on the part of the supporting spouse. While the agreement does not usurp the Court’s jurisdiction in support, guardianship or parenting arrangements, the Court will consider the terms of the agreement when making the order. Whether the Court will uphold the terms of the agreement changes depending on the subject matter of the agreement. See sections of the ''FLA'' that apply to each subject matter. Note also that any orders respecting agreements are subject to s 214 of the ''FLA''.  

Under s 2(1) of the current DA “spouse” means two persons who are currently married to each or were formerly married to one another. As such, 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 came into effect March 1, 2021.

A form of mediation for separating couples is provided by the Family Justice Counsellors of the Ministry of Attorney General. It is intended to steer people out of the Court system. Similar to the small claims process, if the two parties come to an agreement through mediation they may choose to sign a binding contract after the process. Should either party choose not to sign, the agreement will not be binding. There are offices throughout BC, which can be located using the blue pages of the telephone book under BC Corrections Branch, or Family Court: Probation and  Family Court Services. The service is confidential and free. Family Justice Counsellors cannot deal with property and debt division.   

There is also the Family Mediation Practicum Program which aims to provide affordable mediation services to participants while also offering practical training to new mediators (along with an experienced mentor mediator). See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]].  

Parties may wish to retain a private family law mediator to assist them in mediating a resolution to their family law matter. They may contact the British Columbia Mediator Roster Society for names of family law mediators. See [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]]. Not all family law mediators are listed on the roster, and there are many family lawyers who are specifically trained and accredited in family law mediation.  

Another option for parties dealing with family law matters is the Collaborative Divorce Model. This offers an option for parties to resolve disputes respectfully and without going to Court. Parties work out a negotiated settlement with the help of collaboratively trained professionals including (as needed) lawyers, divorce coaches, child specialists and financial specialists. This allows the parties to negotiate a settlement without the threat of Court. If the parties are unable to resolve matters through the Collaborative process, the Collaborative professionals will not be involved in Court proceedings. See the websites listed in [[Governing Legislation and Resources for Family Law (3:II)#B. Resources on the Internet | II.B. Resources on the Internet]] for more information.

Special concerns arise in cases involving First Nation People registered under the [http://canlii.ca/t/7vhk ''Indian Act'', RSC 1985, c I-5]. 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 because 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 parenting time; 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].  

* Family Law Arbitration. For more information see https://family.legalaid.bc.ca/visit/arbitrators

* Med/Arb, which is a combination of both Mediation and Arbitration.  

* Judicial Settlement Conferences pursuant to Rule 7-2 of the ''Supreme Court Family Rules''

* Family Management Conferences pursuant to Rule 7(1) of the ''Provincial Court Family Rules''  

* 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/

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 and uncontested divorce begins at approximately $1,500 and up. We advise clients to use the Lawyer Referral Service (604) 687-3221 or 1-800-663-1919. The 15 minutes of the initial consultation with the lawyer are free and conducted over the phone, with the lawyer charging a fee after the 15 minutes have elapsed.

*Collect all necessary documentation personally rather than paying the lawyer to do it;