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Divorce Act Basics

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*requiring parents to try to resolve family law problems other than by going to court,

*adding measures to help the court deal with family violence,

*creating a new way of dealing with parents who want to move away, with or without the children, after separation; , and,

*implementing a number of international treaties.

*moving away after separation, with or without children,

*paying and receiving child support,

*paying and receiving spousal support; , and,

*changing orders about decision-making responsibility, parenting time, contact with children, child support, or spousal support.

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 [https://www.fct-cf.gc.ca/en/home Federal Court] for a decision about which court proceeding should continue and which should end. The Federal Court will use these rules:

#*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,#*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,#*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.

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 been ''separated for at least one year'';#*because one spouse has committed ''adultery'', and the adultery hasn't been forgiven; , 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.

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.

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

#*your spouse had sex with someone else without your consent; , and,#*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.

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

#*you were treated with such mental or physical cruelty that it was impossible to continue living with your spouse; , and,#*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.

*the cost of getting a divorce can be expensive,

*other issues, like the parenting of children or the division of property and debt, take priority; , or,

*a spouse's religion discourages or prohibits divorce.

A ''child of the marriage'' is a child of one or both spouses who:

#*is under the provincial age of majority and has not "withdrawn from their charge;," or,#*is older than the age of majority but is unable to withdraw from the spouses' care "by reason of illness, disability or other cause."

In British Columbia, the age of majority is 19. In other provinces, like Alberta and Manitoba, the age of majority is 18.

Section 16.92 of the ''[[Divorce Act]]'' has a list of factors that the court should think about when deciding whether to allow a move or not. These include:

#*the reasons for the move,#*the impact of the move on the child,#*whether there is an order, an arbitrator's award or an agreement that a spouse will not move; , and,#*the reasonableness of the moving spouse's proposal on how decision-making responsibility, parenting time and contact can be exercised after the move.

==The law about child support==

Child support is determined by the [[Child Support Guidelines]], which you read about 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 income of the ''payor'', the person paying child support, 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,#*the payor is self-employed or has other sources of income that can be complicated to figure out,#*one or more children live mostly with each spouse,#*the spouses share the children’s time equally or almost equally; , or,#*the payment of the table amount would cause "undue hardship" to either the payor or the spouse receiving child support, the ''recipient''.

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

*ask the applicant for more information,

*delay the hearing if more information is needed,

*dismiss the application; , or,

*make a variation order.

*the age of each spouse,

*how much child support is being paid,

*how much is being spent on the children's special or extraordinary expenses; , and,

*the age of each child and what grade they are at in school.

*ask the applicant for more information,

*delay the hearing if more information is needed,

*dismiss the application; , or,

*make a variation order.

Alise Nelson

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Divorce Act Basics

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