Divorce Act Basics

The federal Divorce Act is the legislation on marriage breakdown in Canada. It only applies to spouses who are married to each other or who used to be married to each other. It talks about how married spouses get divorced and when divorce orders from another country are recognized here. It also deals with the care of children after separation, child support, and spousal support.

This section provides an overview of the Divorce Act. It is primarily written for justice system workers and legal advocates, but can be used by anybody.

Introduction

Who does the Divorce Act apply to?

The Divorce Act is the main law on marriage breakdown in Canada. It applies to people who are or were married to each other, regardless of where they were married. If people in other kinds of relationships want orders about the care of children, child support, or spousal support and can't make an agreement, they must apply under provincial legislation. In British Columbia, that law is the Family Law Act.

If married spouses have started a court proceeding, other people ― like grandparents, other family members, and children's other caregivers ― can use the Divorce Act to ask for orders about the care of the spouses' children, but they must get the court's permission first.

What does the Divorce Act cover?

The Divorce Act talks about:

• divorce and foreign divorce orders,
• custody of children,
• access to children,
• paying child support,
• paying spousal support, and
• changing orders about custody, access, child support, and spousal support.

What is "corollary relief"?

The Divorce Act describes issues about the care of children and support as "corollary relief". Corollary means "related to"; a court hearing a divorce proceeding can make orders about the care of children and support because those issues are related to the court's ability to make a divorce order.

What about annulment?

When a marriage is annulled, the marriage is cancelled as if the couple had never been married at all. A marriage can be annulled if there is a problem with the legal requirements of the marriage ceremony or the legal capacity of the parties to marry.

The Divorce Act doesn't deal with the annulment of marriages, only divorce. Annulment is governed by the common law and is nowhere near as easy to get as a divorce. The section on Married Spouses in the Family Relationships chapter talks about when and how marriages are annulled.

When can a court proceeding under the Divorce Act start?

A court proceeding for a divorce order can only start when either spouse has lived in the province where the proceeding is started for at least one year. As long as this requirement is met, a court proceeding can be started as soon as the spouses have separated.

Which court can hear a proceeding under the Divorce Act?

If you are married and want to get divorced, you must start your court proceeding in the Supreme Court. Both the Provincial Court and the Supreme Court can hear court proceedings under the provincial Family Law Act. However, only the Supreme Court has the jurisdiction to hear proceedings under the Divorce Act.

What happens if each spouse starts a court proceeding?

If each spouse starts a divorce proceeding, the court in which a proceeding was started first can continue to deal with that proceeding and the proceeding that was started last is considered to be dropped. This can be very important where spouses live in different provinces.

If the spouses somehow manage to start separate divorce proceedings on the same day, the proceedings are to be transferred to the Federal Court. The Federal Court is a trial court like the Supreme Court of British Columbia but is common to all of Canada.

What about claims under the Family Law Act?

Both the Divorce Act and the Family Law Act talk about the care of child, child support, and spousal support. As a long a person is married, he or she can start a court proceeding about these issues under either law or under both laws at the same time.

Child support

The rules about child support are almost the same between the two laws, except that it can be easier to get child support from a stepparent under the Family Law Act. The Child Support chapter talks about child support and when stepparents can be required to pay child support.

Spousal support

The rules about spousal support are very similar between the two laws, except that under the Family Law Act spousal support is also available to couples that aren't married to each other.

There's no limit to when claims for spousal support can be brought under the Divorce Act. Under the Family Law Act, however, someone who is entitled to ask for spousal support must begin a court proceeding for spousal support within two years of the divorce order, if the couple were married, or within two years of separation, if the couple wasn't married, or they will be out of time.

Children

The two laws are the most different in terms of how they talk about children. The Divorce Act talks about spouses who have custody and access. The Family Law Act talks about guardians who have parental responsibilities and parenting time, and people who aren't guardians who have contact. I prefer how the Family Law Act deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents.

Because the two systems are so different, even though a married spouse can make a claim under both laws, it's probably best to just pick one. It will be less confusing for the court and it will be less confusing for you.

The law about divorce

Why will the court make a divorce order?

Under s. 8(1) of the Divorce Act, the court can make a divorce order only if the spouses' marriage has broken down. Under s. 8(2), there are three reasons why a marriage may have broken down:

• because the spouses have lived separate and apart for at least one year,
• because one spouse has committed adultery, and the adultery hasn't been forgiven by the other spouse, or
• because one spouse has treated the other with such cruelty that the spouses cannot continue to live together, and the cruelty hasn't been forgiven by the other spouse.

Separation

To get a divorce based on separation, the spouses must have lived separate and apart for one year.

The period of living separate and apart can pass while living under the same roof. However, the partnership quality of the relationship between the spouses — the "marriage-like" quality of the relationship — must have ended. In general, this means that the spouses have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under s. 8(3), the spouses can attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple lives together for a total period of more than 90 days, the clock resets, and a new one-year period doesn't start running until the last separation.

Adultery

To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that his or her spouse had sex with someone else, without his or her permission. The evidence the court will require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission.

You can't ask for a divorce because of your own adultery, only the adultery of your spouse.

Cruelty

To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that he or she was treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. The spouse's own evidence won't do.

You can't ask for a divorce because of your own cruelty, only the cruelty of your spouse.

The effect of forgiveness

The court will not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven, or condoned. If the bad behaviour has been condoned, the marital relationship hasn't broken down and the court can't make the divorce order.

When can the court make the divorce order?

If the claim for the divorce is based on separation, the spouse cannot apply for the divorce order until one year has passed from the date of separation. The one-year period doesn't run from the date the court proceeding is started; it runs from the date of separation.

The nice thing about claims based on adultery or cruelty is that the application for divorce can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and if more than a year has passed by the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order except because of the spouses' separation.

What about child support?

The court may not make a divorce order unless it is satisfied that adequate arrangements have been made for child support. Section 11(1)(b) of the Divorce Act says that the court has the duty to:

to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made

What this means is that the court will usually refuse to make a divorce order unless child support is being paid under a court order or a separation agreement in the amount that would normally be required by the Child Support Guidelines. However, the court may be prepared to consider other terms of an order or agreement that provide a direct or indirect benefit to the children in deciding whether the amount of support being paid is reasonable.

When is a divorce order effective?

Under s. 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because under s. 21(3) the deadline to make an appeal of a Divorce Act order is the 30th day after the order is made.

What's the legal effect of a divorce order?

A divorce order terminates a marriage. When a marriage is terminated, the parties stop being "spouses" and lose all of the obligations and benefits that come from being a spouse. A divorced person is free to marry again, but loses things like the right to claim a share of the other spouse's estate, the right to coverage under the spouse's medical and dental benefits, the right to share in the spouse's future CPP and pension earnings, and the right to receive death benefits.

What if spouses wait to get a divorce order?

Getting a divorce is often a low priority for spouses and some spouses wait for many years before starting a court proceeding for divorce. This isn't unreasonable, and usually happens for one of three reasons:

• the cost of getting a divorce can be too high,
• other issues, like the care of children or the division of property and debt, take priority, or
• a spouse's religion discourages or prohibits divorce.

However, there can be some complications.

No divorce without a divorce order

Firstly, no matter how long spouses wait to get divorced, they will always be married to each other until one of them dies or they finally get a divorce order. There's no such thing as an automatic divorce; the passage of time won't do it. You actually have to get that order.

New relationships

Secondly, separated spouses often move on with their lives, meet new people and get into new romantic relationships without having been divorced. There's nothing wrong with this and the new relationship won't stop the married person from getting a divorce when the time is finally ripe.

However, if it takes too long and a separated spouse moves in to live with someone new, it's entirely possible that the spouse can find him- or herself in a new spousal relationship without being divorced. Remember that under the Family Law Act people can become spouses without getting married.

Foreign divorce orders

Under s. 22 of the Divorce Act, a divorce order made outside of Canada will be recognized here, and be effective to determine a person's marital status here, as long as at least one of the spouses lived in the country that made the divorce order for at least one year before the divorce proceeding was started.

The law about children

Who is a child?

The Divorce Act talks about "children of the marriage." A child is a child of one or both spouses who is under the provincial age of majority, or older but "unable to withdraw" from the spouses' care. In British Columbia, the age of majority is 19. In other provinces, like Alberta, the age of majority is 18.

Although a court can make orders about the care of children who are under the age of majority, in practice the court usually won't make orders about children who are close to the age of majority. Children who are that old are usually old enough to make decisions for themselves about where they'd like to live, and the court will usually respect their decisions.

How are decisions about children made?

Section 16(8) of the Divorce Act says that the court should take "only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child" into account when making decisions about children.

The Divorce Act doesn't go into any further detail than this except to say, at s. 16(10), that:

the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

This doesn't mean that it is always best for a child to have an equal or near-equal amount of time with each spouse. It means that the court should give the child as much time with each spouse as is consistent with the child's best interests. That might be an equal or a near-equal amount of time, or it might be every other weekend, or it might be no time at all.

Orders for custody and access

Under s. 16(1) of the Divorce Act, a spouse or "any other person" can apply to court for an order that he or she has custody of or access to a child. However, a person who is not a spouse cannot make the application without first getting the court's permission.

Access usually refers to the parenting schedule of someone who isn't a spouse or the parenting schedule of the spouse who sees the child for the least amount of time.

Sole custody and joint custody

Under s. 16(4), the court can order that one or more persons have custody of or access to a child.

• When only one person has custody, that person has sole custody of the child.
• When more than one person has custody, they together have joint custody of the child.

Joint custody does not mean that the spouses share the child's time equally or near-equally. Joint custody usually just means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing.

What rights does custody give?

A spouse with sole custody has the child's home and is responsible for the child on a day-to-day basis.

An order for joint custody gives each spouse custody of the children. In such cases the spouses need to and are expected to work together and cooperate in the raising of their children. The children may still spend more time, sometimes a lot more time, at one spouse's home than the other, but both spouses have the right to participate in making decisions about the children's care, welfare, and upbringing.

What rights does access give?

Access usually just refers to the schedule of a spouse's time with a child. More than this, however, under s. 16(5) of the Divorce Act, a spouse who has access also has:

the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

This provision doesn't apply to people who are not spouses and have access to the child under a Divorce Act order.

How are orders for custody and access enforced?

Orders for custody and access have effect throughout Canada, and are enforced under the laws of each province. In British Columbia, Divorce Act orders can be enforced by a spouse under the rules of court and the provincial Court Order Enforcement Act, and by a spouse and the Family Maintenance Enforcement Program under the provincial Family Maintenance Enforcement Act.

How are orders for custody and access changed?

Under s. 17(1), a spouse or another person can apply to change an order for custody or access, but someone who isn't a spouse has to first get permission from the court.

The legal test that must be met before the court changes an order for custody or access is at s. 17(5):

Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

In other words, someone who wants to change an order must first show that there has been a change in circumstances. Then, when the court is deciding on a new order it must consider the best interests of the child in light of that change.

The law about child support

Who is a child?

The Divorce Act talks about "children of the marriage." A child is a child of two spouses who is under the age of 19, the age of majority in British Columbia, or 19 and older but "unable to withdraw" from the spouses' care. Normally, adult children who are unable to withdraw are children who are ill or disabled or who are going to school full-time and are unable to support themselves.

Who is a spouse?

In this context, "spouse" includes a spouse who is a parent of a child and a spouse who "stands in the place of a parent" for a child. In other words, "spouse" includes spouses who are stepparents.

Who is required to pay child support?

Section 15.1(1) of the Divorce Act says that a court may "make an order requiring a spouse to pay for the support of any or all children of the marriage." The act doesn't say that it's parents who have to pay; it's spouses who have to pay, and "spouse" includes stepparents.

Who can ask for child support?

Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and needs child support, the person will need to apply for the child support under the provincial Family Law Act.

How is the amount of child support calculated?

Child support is determined by the Child Support Guidelines. Most of the time, child support is simple to figure out by looking up the amount payable in the Guidelines tables based on the payor’s income and the number of children support is being paid for. Child support can get more complicated when:

• a child is 19 or older,
• the payor has an income of more than $150,000 per year,
• one or more children live mostly with each spouse, called split custody,
• the spouses share the children’s time equally or almost equally, called shared custody, or
• the payment of the tables amount would cause "undue hardship" to either the recipient of child support or the payor of child support.

How is child support paid?

Most of the time, child support is paid every month, usually on the first day of the month. It is possible for child support to be paid in a single lump sum, but this is very rare. Payors can be required to pay by giving the recipient a series of post-dated cheques.

How are orders for child support changed?

Under s. 17(4) of the Divorce Act, the court can change an order for child support if there has been a change in circumstances that would result in a different amount of support being paid, such as an increase or a decrease in the payor's income, or a change in how the children's time is divided between the spouses.

When both spouses live in British Columbia

To change a British Columbia Divorce Act child support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

When a spouse lives outside of British Columbia

To change a British Columbia Divorce Act child support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a provisional order under s. 18.

If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to confirm the provisional order under s. 19.

The court at the confirmation hearing may:

• confirm the provisional order,
• confirm the provisional order with some changes,
• refuse to confirm the provisional order, or
• send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

The law about spousal support

Who is entitled to ask for spousal support?

Only spouses can ask for spousal support. Under s. 15 of the Divorce Act, "spouse" includes former spouses, spouses who have been divorced. There is no time limit on when a spouse or former spousal can ask for child support.

A spouse’s entitlement to spousal support is determined based on factors set out at s. 15.2(4):

In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

(a) the length of time the spouses cohabited;

(b) the functions performed by each spouse during cohabitation; and

(c) any order, agreement or arrangement relating to support of either spouse.

Remember that no one is automatically entitled to get spousal support the way a child is automatically entitled to benefit from child support. Anyone who is a spouse can ask for spousal support, but being able to ask doesn’t mean they’ll get it. They must also show that they are entitled to spousal support.

How are the amount and duration of spousal support calculated?

When a spouse is entitled to receive spousal support, the amount to be paid and the length of time support should be paid for, called duration, is determined based on factors set out at s. 15.2(6):

An order [for spousal support] should

(a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

(b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

(d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

The amount of spousal support to be paid and the duration that it should be paid for is often determined using the Spousal Support Advisory Guidelines. The Advisory Guidelines is not a law like the Child Support Guidelines and is not mandatory. The Divorce Act does not mention the Advisory Guidelines.

Is a spouse’s conduct taken into account?

Under the Divorce Act, the court is not allowed to consider a spouse’s behaviour when making an order about spousal support.

How is spousal support paid?

Most of the time, spousal support is paid every month, usually on the first day of the month. It is possible for spousal support to be paid in a single lump sum. Payors can be required to pay by giving the recipient a series of post-dated cheques.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular basis. Spousal support is tax neutral when it is paid as a single lump sum.

The recipient of regular payments of spousal support must declare the support received in his or her income tax return and pay tax on it, just as if the support payments were employment income. The payor can deduct the spousal support paid from his or her taxable income, like how RRSP contributions can be deducted from taxable income. This usually means that the recipient has to pay tax at the end of the year while the payor gets a tax refund.

Remember that taxes should be taken into account when figuring out spousal support. At a minimum, recipients should be reminded to put some money aside to pay their taxes.

How are orders for spousal support changed?

Under s. 17(4.1) of the Divorce Act, the court can change an order for spousal support if there has been a:

change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order

When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under s. 17(7), the same factors about amount and duration as it considered in making the original order.

When both spouses live in British Columbia

To change a British Columbia Divorce Act spousal support order when both spouses live here, the applicant must file a Notice of Application in the original court proceeding. The Supreme Court Family Rules have special provisions for applications to change final orders.

When a spouse lives outside of British Columbia

To change a British Columbia Divorce Act spousal support order when the respondent lives in another province, the applicant first applies here, in British Columbia, for a provisional order under s. 18.

If the court makes a provisional order, it will send the order to the province where the respondent lives, and the court there will have a hearing to confirm the provisional order under s. 19.

The court at the confirmation hearing may:

• confirm the provisional order,
• confirm the provisional order with some changes,
• refuse to confirm the provisional order, or
• send the application back to British Columbia for more information.

A provisional order has no effect until and unless it is confirmed.

Resources and links

Legislation

• Divorce Act

Links

• Divorce Law Questions & Answers, from the Department of Justice
• What happens next? Information for kids about separation and divorce, from the Department of Justice
• Because Life Goes On… Helping children and youth live with separation and divorce, from the Public Health Agency of Canada