Divorce Act

The Divorce Act changed on March 1, 2021. This wikibook is being updated to reflect these and other important changes to family law in British Columbia. In the meantime, we've prepared a summary of the more important changes. Read our page on the New Divorce Act.

The Divorce Act, RSC 1985, c 3 (2nd Supp) is a federal law that you can find, along with other federal laws, at the website of the federal Department of Justice, or on CanLII, a free website for searching Canadian court decisions and legislation. Because of a constitutional rule called the "doctrine of paramountcy," the Divorce Act is considered to be "superior" to the provincial Family Law Act. As a result, if you are entitled to ask for an order under the Divorce Act about child support or spousal support, you probably should.

The Divorce Act only applies to married spouses, people who are or were married to each other by a marriage commissioner or a religious official licensed to perform marriages. If you are not legally married, the Family Law Act is the only game in town. Although the court may allow someone who isn't a spouse to apply under the Divorce Act for an order relating to custody of or access to a child, that person must get the court's permission first, and the spouses must have already started a court proceeding between each other.

You must also be ordinarily resident in your province for at least one year before you can ask for an order under the Divorce Act. This means that you might have to delay filing for a divorce if you've moved to a new province within the last year.

The Divorce Act refers to children as children of the marriage. A child of the marriage is defined in section 2(1) as:

A child of two spouses or former spouses who, at the material time,

(a) is under the age of majority and who has not withdrawn from their charge, or

(b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.

In other words, a child of the marriage is someone who is less than 19 years old, the age of majority in British Columbia, or who is 19 and older if the child cannot support themselves. Since only people qualifying as spouses are obliged to pay child support, the definition of child of the marriage is expanded in section 2(2) to include stepparents:

For the purposes of the definition “child of the marriage” in subsection (1), a child of two spouses or former spouses includes

(a) any child for whom they both stand in the place of parents; and

(b) any child of whom one is the parent and for whom the other stands in the place of a parent

The Divorce Act covers these basic subjects:

• divorce,
• custody of and access to children,
• child support, and
• spousal support.

JP Boyd on Family Law provides extensive coverage of the Divorce Act, including a chapter on Divorce Act Basics.

Important changes
Under the changes to the Divorce Act that took effect on 1 March 2021, "custody" is now known as decision-making responsibility and "access" is now known as parenting time, for people who are or used to be married to each other, or as contact for other people. Decision-making responsibility under the Divorce Act means the same thing as parental responsibilities under the Family Law Act.

The changes also include a long list of factors to take into consideration when making decisions about children. The factors include things like the history of the children's care, the children's views and preferences, each spouse's plan for the care of the children, and the extent to which each spouse will support the children's relationship with the other spouse. Family violence is another factor, and when family violence is present, the Divorce Act now includes a list of additional factors for judges to consider, including the nature and frequency of the violence.

Another important change is a new test to help judges decide what should happen when a spouse wants to move away from the other spouse after separation. Although the Divorce Act test is similar to the Family Law Act test, they are not exactly the same. It is a good idea to speak to a lawyer whenever someone wants to move away after separation.

An act; a statute; a written law made by a government. See "regulations."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

In family law, an antiquated term used by the old Divorce Act to describe the right to possess a child and make parenting decisions concerning the child's health, welfare and upbringing. Replaced in the new Divorce Act with the term decision-making responsibility." See "access," "decision-making responsibility" and "parenting time."

Under the old Divorce Act, the schedule of a parent's time with their children under an order or agreement, replaced with "parenting time" and "contact" in the new Divorce Act. Access usually referred to the schedule of the parent with the least amount of time with the child. See "contact," "custody" and "parenting time."

A person who is younger than the legal age of majority, 19 in British Columbia. See "age of majority."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

A term under the Divorce Act describing a child who is under the provincial age of majority or older but unable to withdraw from the charge of the spouses by reason of illness, disability or other cause. "Other cause" is usually interpreted to mean an adult child who is pursuing post-secondary education. An adult child must qualify as a "child of the marriage" to be entitled to child support. See "age of majority," "child" and "child support."

In law, something that is relevant or important. A material fact, for example, is a fact relevant to a claim or a defence to a claim. See "claim," "evidence" and "fact."

The age at which a child becomes a legal adult with the full capacity to act on their own, including the capacity to sue and be sued. In British Columbia, the age of majority is 19. The age of majority has nothing to do with being entitled to vote or buy alcohol, although federal and provincial laws sometimes link those privileges with the age at which one attains majority. See "disability" and "infant."

In law, a legal incapacity to do certain things, like enter into a contract or start a court proceeding. Legal disabilities include insanity and being under the age of majority. See "age of majority."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

Under the new Divorce Act, a term referring to a spouse's responsibility for making significant decisions about a child, including about healthcare, education, culture, language, religion, spirituality and extracurricular activities. Decision-making responsibility may be shared by both spouses, divided between spouses such that each has responsibility for different decisions, or allocated wholly to one spouse.

Under the Family Law Act, a term which describes the time a guardian has with a child and during which is responsible for the day-to-day care of the child. Under the Divorce Act, a term which describes the time a spouse has with a child and during which is responsible for the day-to-day care of the child. See "guardian" and "spouse."

Under the Family Law Act, a term that describes the time a person who is not a guardian of a child, including a parent who is not a guardian, has with that child. Under the Divorce Act, a term that describes the time a person who is not a married spouse has with a child. See "guardian" and "parental responsibilities."

A term under the Family Law Act which describes the various rights, duties, and responsibilities exercised by guardians in the care, upbringing, and management of the children in their care, including determining the child's education, diet, religious instruction or lack thereof, medical care, linguistic and cultural instruction, and so forth. See "decision-making responsibility" and "guardian."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."