Divorce Act

The Divorce ActEdit

The Divorce Act is a federal law that you can find, along with other federal laws, on the website of the federal Department of Justice, or on CanLII, a free website for searching Canadian court decisions and legislation. The Divorce Act became law in 1985. A number of very important changes to the act became law on 1 July 2020 which changed how we talk about parenting children and the best interests of children. The current Divorce Act covers these basic subjects:

1. getting divorced;
2. decision-making responsibility;
3. parenting time and contact with children;
4. child support; and,
5. spousal support.

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're not legally married, the Divorce Act doesn't apply to you, and the Family Law Act is the only game in town.) 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(a) is under the age of majority and who has not withdrawn from their charge, or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

While someone who isn't a married spouse can use the Divorce Act to apply for an order relating to the parenting of children or getting time with children, that person must get the court's permission first and the people who are legally married to each other must have already started a court proceeding.

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

. 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:

1. divorce;
2. decision-making responsibility;
3. parenting time and contact with children;
4. child support; and,
5. spousal support.

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