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Difference between revisions of "Divorce Act Basics"
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===Why will the court make a divorce order?=== | ===Why will the court make a divorce order?=== | ||
Under | Under section 8(1) of the ''[[Divorce Act]]'', the court can make a divorce order only if the spouses' marriage has broken down. Under section 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 the spouses have lived separate and apart for at least one year, | ||
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The period of living separate and apart can include time when the spouses were living under the same roof. However, the conjugal aspects of the relationship between the spouses — the ''marriage-like'' quality of their 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. | The period of living separate and apart can include time when the spouses were living under the same roof. However, the conjugal aspects of the relationship between the spouses — the ''marriage-like'' quality of their 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 | Under section 8(3), spouses can live together in an attempt to reconcile and resume married life for up to 90 days during the one-year period. However, if the couple live together for a total period of more than 90 days, the clock resets and the spouses must wait for a new one-year period to end before asking for a divorce order. | ||
====Adultery==== | ====Adultery==== | ||
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===When is a divorce order effective?=== | ===When is a divorce order effective?=== | ||
Under | Under section 12(1), a divorce order takes effect on the 31st day after the divorce order is made. That's because the deadline to make an appeal of a ''Divorce Act'' order is the 30th day after the order is made, and the appeal deadline needs to pass, without an appeal being brought, before the spouses will be considered divorced. | ||
===What's the legal effect of a divorce order?=== | ===What's the legal effect of a divorce order?=== | ||
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===Are foreign divorce orders valid in Canada?=== | ===Are foreign divorce orders valid in Canada?=== | ||
Under | Under section 22 of the ''[[Divorce Act]]'', a divorce order made outside of Canada will be recognized in Canada, and be effective to determine a person's marital status in this country, 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 in that country. | ||
==The law about children== | ==The law about children== | ||
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===How are decisions about children made?=== | ===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 <span class="noglossary">account</span> when making decisions about children. The act doesn't go into much further detail than this except to say, at | 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 <span class="noglossary">account</span> when making decisions about children. The act doesn't go into much further detail than this except to say, at section 16(10), that: | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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===Who can ask for orders about custody and access?=== | ===Who can ask for orders about custody and access?=== | ||
Under | Under section 16(1) of the ''[[Divorce Act]]'', a spouse or ''any other person'' can apply to court for an order that they have custody of or access to a child. However, a person who is not a spouse, including a child's grandparents, cannot make the application without first getting the court's permission. | ||
===What rights does custody give?=== | ===What rights does custody give?=== | ||
''Custody'' sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling, and well-being, as well as the right to participate in making decisions about those things. Under | ''Custody'' sometimes means the house where the children live most of the time, but it can also mean having the right to get information about the children's activities, schooling, and well-being, as well as the right to participate in making decisions about those things. Under section 16(4) of the ''[[Divorce Act]]'', the court can order that one or more persons have custody of a child. | ||
*When only one person has custody, that person has ''sole custody'' of the child. | *When only one person has custody, that person has ''sole custody'' of the child. | ||
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===What rights does access give?=== | ===What rights does access give?=== | ||
Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under | Access usually refers to the parenting schedule of the spouse who sees the child for the least amount of time, or to the parenting schedule of someone who isn't a spouse. More importantly, under section 16(5) of the ''Divorce Act'', a spouse who has access also has: | ||
<blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote> | <blockquote><tt>the right to make inquiries, and to be given information, as to the health, education and welfare of the child.</tt></blockquote> | ||
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===How are orders for custody and access changed?=== | ===How are orders for custody and access changed?=== | ||
Under | Under section 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 | The legal test that must be met before the court changes an order for custody or access is at section 17(5): | ||
<blockquote><tt>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.</tt></blockquote> | <blockquote><tt>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.</tt></blockquote> | ||
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===Who can ask for child support?=== | ===Who can ask for child support?=== | ||
Under | Under section 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 <span class="noglossary">will</span> need to apply for child support under the provincial ''[[Family Law Act]]''. | ||
===How is the amount of child support calculated?=== | ===How is the amount of child support calculated?=== | ||
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===How are orders for child support changed?=== | ===How are orders for child support changed?=== | ||
Under | Under section 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. Typical changes are increases or decreases in the payor's income, or changes in how the children's time is divided between the spouses. | ||
====When both spouses live in British Columbia==== | ====When both spouses live in British Columbia==== | ||
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====When a spouse lives outside of British Columbia==== | ====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 | 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 section 18. If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under section 19. | ||
The court at the confirmation hearing may: | The court at the confirmation hearing may: | ||
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===Who is entitled to ask for spousal support?=== | ===Who is entitled to ask for spousal support?=== | ||
Only spouses can ask for spousal support. Under | Only spouses can ask for spousal support. Under section 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 spouse can ask for spousal support. | ||
A spouse’s entitlement to spousal support is determined based on factors set out at | A spouse’s entitlement to spousal support is determined based on factors set out at section 15.2(4): | ||
<blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote> | <blockquote><tt>In making an order [for spousal support], the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including</tt></blockquote> | ||
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===How are the amount and duration of spousal support calculated?=== | ===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 | 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 section 15.2(6): | ||
<blockquote><tt>An order [for spousal support] should</tt></blockquote> | <blockquote><tt>An order [for spousal support] should</tt></blockquote> | ||
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Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also 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. | Most of the time, spousal support is paid every month, usually on the first day of the month. If child support is also being paid, child support and spousal support payments can be staggered if that's fair to both parties. It is also 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. | ||
Where the payor cannot pay both spousal support and child support, under | Where the payor cannot pay both spousal support and child support, under section 15.3 the court must give priority to child support. | ||
===Are there tax consequences?=== | ===Are there tax consequences?=== | ||
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===How are orders for spousal support changed?=== | ===How are orders for spousal support changed?=== | ||
Under | Under section 17(4.1) of the ''[[Divorce Act]]'', the court can change an order for spousal support if there has been a: | ||
<blockquote><tt>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</tt></blockquote> | <blockquote><tt>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</tt></blockquote> | ||
When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under | When the court varies an order for spousal support, it must take the change of circumstances into account and consider, under section 17(7), the same factors about amount and duration as it considered in making the original order. | ||
====When both spouses live in British Columbia==== | ====When both spouses live in British Columbia==== | ||
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====When a spouse lives outside of British Columbia==== | ====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 | 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 section 18. If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under section 19. | ||
The court at the confirmation hearing may: | The court at the confirmation hearing may: | ||
