Divorce Act Basics

The Divorce Act is the law that deals with marriage breakdown in Canada. It only applies to people 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 talks about the care and parenting of children after separation, child support, and spousal support.

This section provides a top to bottom overview of the Divorce Act in an easy-to-read question and answer format. It is written primarily for justice system workers and legal advocates, but anyone can use it. All of the information provided in this section is discussed in more detail elsewhere in JP Boyd on Family Law. Use the search tool at the top of the page to find more information about specific topics.

Introduction

The very first Canadian Divorce Act didn't become law until 1968. It was overhauled and replaced with a new Divorce Act 17 years later, in 1985. The 1985 version of the act was updated in 1997 when the Child Support Guidelines were introduced, but it took another 23 for the next major changes to the act to become law. These changes were very important because they changed the way we talk about parenting children from terms like custody and access, which were about the rights of parents and encouraged conflict between separated parents, to decision-making responsibility and parenting time, which are about the rights of children and encourage separated parents to cooperate.

Other important changes to the 1985 Divorce Act include:

1. expanding the factors parents and the court must consider when deciding what is, and isn't, in the best interest of children;
2. requiring parents to try to resolve family law problems other than by going to court;
3. adding measures to help the court deal with family violence;
4. creating a new way of dealing with parents who want to move away, with or without the children, after separation; and,
5. implementing a number of international treaties.

The full list of changes can be found in the legislation that changed the Divorce Act, the Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act. (What a long name!) All of these changes are reflected in this resource.

Who does the Divorce Act apply to?

The federal Divorce Act is the main Canadian law on marriage breakdown and divorce. It only applies to couples who are or were legally married to each other, regardless of where they were married. If people in other kinds of relationships can't make an agreement and need to ask the court for orders about parenting children, child support, or spousal support, they must apply under provincial legislation. In British Columbia, that law is the Family Law Act.

If married spouses have started a court proceeding under the Divorce Act, other people — including grandparents, other family members, and children's other caregivers — can use the Divorce Act to ask for orders for contact with the spouses' children, but they must get the court's permission first.

What issues does the Divorce Act cover?

The Divorce Act talks about:

1. divorce and foreign divorce orders;
2. decision-making responsibility for children;
3. parenting time or contact with children;
4. moving away after separation, with or without children;
5. paying and receiving child support;
6. paying and receiving spousal support; and,
7. changing orders about decision-making responsibility, parenting time, contact with children, child support, or spousal support.

What is corollary relief?

You may have heard the term "corollary relief" used about court proceedings under the Divorce Act. Corollary means something that is related to or a consequence of something else. The primary subject matter of the Divorce Act is divorce. The other orders available under the act, about parenting children, child support, and spousal support, all stem from the court's ability to make a divorce order. The court's power to make these orders is "corollary" to the court's power over divorce, and orders about parenting children, child support, and spousal support are sometimes called corollary relief or corollary orders.

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 sometimes 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 Marriage & Married Spouses in the Family Relationships chapter talks about when and how marriages can be annulled.

When can a court proceeding under the Divorce Act start?

A court proceeding for a divorce order can only start when one of the spouses 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. There's no waiting period.

If you have recently moved to a new province, you have three choices. You can wait until you have lived in your new province to start a court proceeding under the Divorce Act in the court of your new province. You can start a court proceeding in the province where your spouse lives, as long as they have lived in that province for at least one year. Or, you can start a court proceeding under the family law legislation in your new province and wait until you've lived there to add a claim under the Divorce Act to the court proceeding.

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 we each start a court proceeding for divorce?

If each spouse has started a court proceeding under the Divorce Act, the court in which the first court proceeding was started can continue to deal with that proceeding, and the court proceeding that was started second is considered to be cancelled. This can be very important where spouses live in different provinces.

If the two court proceedings were started on the same day and you can't agree on which court proceeding should be cancelled, you or your spouse will have to apply to the Federal Court for a decision about which court proceeding should continue and which should end. The Federal Court will use these rules:

1. if one of the proceedings asks for an order about parenting, the court proceeding that will continue is the proceeding in the province where the child normally lives;
2. if neither proceeding asks for an order about parenting, the court proceeding that will continue is the proceeding in the province where you last lived together; and,
3. if neither proceeding asks for an order about parenting and neither province is the province where you last lived together, the court proceeding that will continue is the proceeding which the Federal Court considers to be "most appropriate."

The "most appropriate" court will usually be the court in the province in which most of the witnesses and evidence that are needed for the court proceeding are located.

What about claims under the Family Law Act?

Both the Divorce Act and the Family Law Act talk about parenting children, child support, and spousal support. As long as a person is married, they can start a court proceeding about these issues under either law or under both laws at the same time. However, it's important to know that only the Family Law Act talks about orders dividing property and debt, personal protection orders and financial protection orders, declarations about the parentage of a child, or orders about the use of the family home. If orders like these are required, the court proceeding must include claims under the Family Law Act.

See the section Family Law Act Basics for more information about the Family Law Act.

Child support

The rules about child support are almost the same between the Divorce Act and the Family Law Act, except that it can be a bit easier to ask a stepparent to pay child support 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 adults who aren't married to each other as long as they meet that act's definition of "spouse."

There's no limit to when claims for spousal support can be brought under the Divorce Act. Under the Family Law Act, however, spouses who are 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 and can't make the claim at all.

Parenting children

The Divorce Act talks about spouses who have decision-making responsibility and parenting time, and people who aren't spouses who have contact. The Family Law Act talks about guardians who have parental responsibilities and parenting time, and people who aren't guardians who have contact. Both laws also talk about what happens when a parent wants to move away with a child and how family violence impacts on the court's decisions about parenting. The two laws are very similar to each other, although there are some small differences.

The law about divorce

Why will the court make a divorce order?

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:

1. because the spouses have been separated for at least one year;
2. because one spouse has committed adultery, and the adultery hasn't been forgiven; or,
3. 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.

In Canada, most divorce claims are made on the basis of separation, even if there has been adultery or cruelty. It's important to know that you can't ask for a divorce because of your own adultery or cruelty, only the adultery or cruelty of your spouse.

Separation

To get a divorce based on separation, you and your spouse must have "lived separate and apart" for one year.

The period of living "separate and apart" can include time when you were both living in the same home. However, the "conjugal" quality of your relationship — the marriage-like quality of your relationship — must have ended. In general, this means that you must have stopped sleeping together, eating meals together, doing chores for each other, and going out together as a couple.

Under section 8(3) of the Divorce Act, 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 wind up living 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

To get a divorce based on adultery, you have to be able to prove that:

1. your spouse had sex with someone else without your consent; and,
2. you haven't forgiven your spouse for their adultery.

The evidence the court will require isn't indirect, or "circumstantial" evidence, like a hotel receipt or a used condom, but direct evidence, like a photograph of the adultery while it is occurring or your spouse's admission to having committed adultery.

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

Cruelty

To get a divorce based on cruelty, you have to be able to prove that:

1. you were treated with such mental or physical cruelty that it was impossible to continue living with your spouse; and,
2. you haven't forgiven your spouse for their cruelty.

The evidence of cruelty that the court will require must come from someone else, like a doctor or a psychologist. Your own evidence won't do.

You can't ask for a divorce because of your own cruelty. You can only ask because of 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 is considered not to have broken down, and the court won't make a divorce order.

When can the court make the divorce order?

If the claim for the divorce is based on separation, neither spouse can 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 divorce claims based on adultery or cruelty is that the application for the divorce order can be made right away, without having to wait for one year. However, the adultery or cruelty must be proven, and most of the time it is difficult to get the other person to explicitly agree that these grounds exist. Also, if more than a year has passed from the date of separation when the time the court is asked to make the divorce order, the court may very well refuse to make the divorce order for any reason other than because the spouses have been separated for over a year.

Lawyers rarely advise their clients to make claims for divorce based on adultery and cruelty, especially because a claim based on separation for one year is much less contentious, requires very little evidence to prove, and is much more straightforward.

The process for getting a divorce order is described in detail in the Divorce section of the chapter Separation & Divorce.

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:

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 an important benefit to the children in deciding whether the amount of support being paid is reasonable. This can sometimes be hard to prove.

Information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

When is a divorce order effective?

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 deadline for an appeal needs to pass, without an appeal being brought, before the spouses will be considered divorced.

What's the legal effect of a divorce order?

A divorce order ends a marriage. When a marriage is terminated by divorce, 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.

What if we wait to get a divorce order?

Getting a divorce is often a low priority for married people 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:

1. the cost of getting a divorce can be expensive;
2. other issues, like the parenting children or the division of property and debt, take priority; or,
3. a spouse's religion discourages or prohibits divorce.

However, delaying your divorce for too long can cause some complications...

No divorce without a divorce order

Firstly, no matter how long spouses wait to get divorced, they will remain 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 alone 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 themselves in a spousal relationship with their new partner without being divorced from their spouse. (Remember that under the Family Law Act people can become spouses without getting married.) If that relationship also doesn't work out, the spouse may wind up being obliged to pay spousal support to more than one other spouse!

Are foreign divorce orders valid in Canada?

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 was "habitually resident" — normally lived — in the country that made the divorce order for at least one year before the court proceeding was started in that country.

The law about children

Who is a "child of the marriage"?

The Divorce Act talks about "children of the marriage" rather than just "children." A child of the marriage 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 and Manitoba, 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 involving 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 act doesn't go into much further detail than this except to say, at section 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.

Who can ask for orders about custody and access?

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?

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 more than one person has custody, they together have joint custody of the child.

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

Joint custody does not always mean that the spouses share the child's time equally or near-equally. Joint custody means that both spouses are expected to play a role in raising their children and in making decisions about their care and upbringing; whether they share the children's time equally or have very unequal amounts of time with the children is another question.

Under the new Divorce Act, the right to make decisions about children will be described as parenting responsibilities.

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 section 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.

Under the new Divorce Act, people who are spouses will have parenting time with a child instead of "access," and people who are not spouses may have contact with a child. People with parenting time also have the right to make day-to-day decisions affecting the child during their time with the child.

How are orders for custody and access enforced?

Divorce Act 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.

How are orders for custody and access changed?

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 section 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 of the marriage"?

The Divorce Act talks about "children of the marriage." A child of the marriage 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 are going to school full-time, and are unable to support themselves as a result.

Who is a spouse?

In the context of child support, 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 people 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 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 will need to apply for child support under the provincial Family Law Act.

How is the amount of child support calculated?

Child support is determined by the Guidelines which you can find in the Child Support chapter of this resource. Most of the time, child support is easy to figure out: you just look up the amount payable in the tables attached to the Guidelines based on the payor’s income and the number of children support is being paid for. Calculating 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,
• the payor is a stepparent,
• 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.

More information about how child support is calculated is available in the Child Support chapter, particularly in the sections on the Guidelines and the Exceptions to the Guidelines.

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.

However child support gets paid, it's important for the payor to keep a record of how much was paid and when it was paid, perhaps from receipts provided by the recipient, from cancelled cheques, or from bank statements. This can help prevent arguments about whether a payment was late or missed altogether.

Are there tax consequences?

There are no tax consequences when child support is paid. The payor isn't allowed to deduct child support payments from the payor's taxable income, and the recipient isn't required to report child support payments as taxable income.

How are orders for child support changed?

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

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 section 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 section 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.

Under the new Divorce Act this process will be replaced with a process that requires only one hearing, usually in the province where the respondent lives.

The law about spousal support

Who is entitled to ask for spousal support?

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 section 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 you'll get it. You must also show that you 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 section 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 doesn't even mention the Advisory Guidelines. However, the Advisory Guidelines can be very helpful to figure out how much should be paid and how long it should be paid for.

Is a spouse’s conduct taken into account?

Under the Divorce Act, the court is not allowed to consider a spouse’s behaviour during the marriage 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. 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 section 15.3 the court must give priority to child support.

Are there tax consequences?

There are tax consequences when spousal support is paid on a regular, repeating basis.

The recipient of regular payments of spousal support must declare the support received in their 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 their taxable income, in the same way that 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.

There are no tax consequences when spousal support is paid as a single lump sum. When a lump sum is paid, the payor cannot deduct the spousal support payment from their taxable income, and the recipient does not have to add it to their own.

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 section 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 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

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 section 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 section 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.

Under the new Divorce Act this process will be replaced with a process that requires only one hearing, usually in the province where the respondent lives.

Resources and links

Legislation

• Divorce Act
• Bill C-78, the bill that will change the Divorce Act

Links

• Department of Justice's website "Divorce and Separation"
• Department of Justice's booklet What happens next? Information for kids about separation and divorce
• Public Health Agency of Canada's report Because Life Goes On… Helping children and youth live with separation and divorce

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, June 21, 2019.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.