Divorce Law in Canada
Canadian Divorce Law. Canadian Family Law.
Family law, includes marriage and cohabitation agreements; separation agreements; separation and divorce; custody and access; adoptions; child and spousal support; division of property, including pension division; income tax advice; mediation and dispute resolution.
Topics on this page:
- March 26 '04 - Supreme Court of Canada upholds pre-nuptial agreeements
Relationships - Comparison with a traditional marriage
- Adoption & Locating a Birth Relative
- Adoption information
- Links to More Information
The Government of Canada's Divorce Act applies in all parts of Canada.
There is one ground for divorce in Canada: "breakdown of marriage." This ground is established if:
- The spouses have lived apart for at least one year immediately preceding the divorce judgment;
- The defendant spouse has committed adultery; or
- The defendant spouse has treated the plaintiff spouse with physical or mental cruelty of such a kind as to render continuation of the marriage intolerable.
The first criterion is a non-fault one and may be invoked by either or both spouses. A divorce action may be commenced before the one year period has run, but the divorce judgment cannot be granted until it has elapsed.
The second and third criteria, allow a quicker divorce without having to wait out the one-year waiting period. These are fault-based criteria and are available only to the "innocent" spouse.
Canadian divorce law encourages reconciliation. Divorce lawyers are required to discuss the possibility of reconciliation and to inform clients of available counseling or guidance facilities. The law also requires lawyers to promote negotiated settlements and mediation of support and custody disputes.
The court, before considering the evidence in a divorce case, must be satisfied that there is no possibility of reconciliation between the spouses. If the court sees a possibility of reconciliation the court must adjourn the proceedings to give the parties the opportunity to attempt to reconcile.
Division of property is governed by provincial and territorial law.
The laws of the provinces differ but generally In dividing property on divorce, the assumption is that people should have an equal share of property gained by the efforts of each partner. In most cases, contributions of a homemaker and an income-earner are treated the same. Some property is not equally divided. Exempt property may include property owned before marriage, gifts from someone other than your spouse, inherited property, and property which is the subject of a written agreement. The amount, by which any exempt property has increased in value since it was acquired, may be shared equally between married spouses. Pensions are often a significant asset.
The laws on division of property in your province should be consulted for an exact allocation.
Best Interest of the Child
Custody or access must be based on the best interests of the child. The court has broad discretion to grant custody or access for a definite or indefinite period and subject to whatever terms, conditions or restrictions it thinks are appropriate given this standard.
Involvement of Both Parents is Encouraged
"In making an order under this section, 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." (Section 16 (10) of the Divorce Act)
The Act entitles a spouse who is granted access to a child to make inquires and to be given information concerning the health, education and welfare of the child, unless the court orders otherwise. The purpose of this is to facilitate the non-custodial parent's meaningful involvement in the making of decisions concerning the child.
Child support may be ordered in a lump sum or in periodic payments, for a definite or indefinite period or until the occurrence of a particular event.
The guidelines are set for each province and are a guide to the amount of Child Support payments that should be made. Please refer to: Federal Child Support Guidelines
Spousal support payments can be established either under Federal law: the Divorce Act or under provincial or territorial acts.
Spousal support, or alimony involves transferring a portion of one spouse'sincome to the other spouse after separation through monthly payments by the higher-income spouse. It is designed to recognize that since the spouses were sharing their incomes during the marriage, it may be appropriate that the higher-income spouse subsidize the lower-income spouse'sincome in order to share the economic consequences of the marriage breakdown. Such subsidies, however, do not necessarily continue forever.
The law continues to evolve, reflecting social changes and a desire to find a fair way to apportion the economic consequences of divorce. There are no concrete standards to determine whether spousal support should be paid, how much or for how long. There are some general guidelines found in the legislation, and the Supreme Court of Canada has handed down some fundamental principles.
Separation and divorce agreements can be reopened by the courts only in very exceptional circumstances. The April, 2003 Supreme Court of Canada decision in re: Miglin established a two-part test:
The decision went on to say in paragraph 83:
" ........ It will be unconvincing, for example, to tell a judge that an agreement never contemplated that the job market might change, or that parenting responsibilities under an agreement might be somewhat more onerous than imagined, or that a transition into the workforce might be challenging. Negotiating parties should know that each person's health cannot be guaranteed as a constant. An agreement must also contemplate, for example, that the relative values of assets in a property division will not necessarily remain the same. Housing prices may rise or fall. A business may take a downturn or become more profitable. Moreover, some changes may be caused or provoked by the parties themselves. A party may remarry or decide not to work. Where the parties have demonstrated their intention to release one another from all claims to spousal support, changes of this nature are unlikely to be considered sufficient to justify dispensing with that declared intention.........."
Divorcing couples can't get out of their pre-nuptial agreements unless the contracts are blatantly unfair, says the Supreme Court of Canada, in a ruling handed down on March 26, 2004. (Robert Kenneth Hartshorne v. Kathleen Mary Mildred Hartshorne)
In a 6 - 3 ruling the court had its first look at the validity of a marriage contract when it conflicted with provincial laws requiring an equal division of assets when a relationship ends.
The decision reinforces the courts refusal in recent years to tamper with couples' private contracts.
Justice Michel Bastarache stated "Individuals may choose to structure their affairs in a number of different ways and courts should be reluctant to second-guess the arrangement on which they reasonably expect to rely."
The enforcement of a child support order or spousal support order is governed by provincial and territorial legislation.
The latest amendments to the Divorce Act that came into effect on May 1, 1997 greatly strengthened the powers available to enforce child and spousal payment:
- New child support guidelines;
- Amendments to the Family Orders and Agreements Enforcement Assistance (FOAEA) so that searches of Revenue Canada data bases will be allowed in order to locate anyone who has breached a family support order;
- New provisions establish a federal licence denial scheme under which the federal government is empowered to suspend passports, and some federal transport licences where a payer of child support has persistently breached support obligations;
- Amendments to the Garnishment, Attachment and Pension Diversion Act to expand access to federal public service employee pension benefits to satisfy support arrears; and
- Amendments to the Canada Shipping Act to allow the wages of those working at sea to be garnished to enforce a family support obligation;
The provinces have set up family maintenance enforcement programs:
2nd Floor – 405 Broadway
Winnipeg, Manitoba R3C 3L6
Telephone: (204) 945-7133
Saint John Regional Office
Family Support Services
110 Charlotte Street,
P.O. Box 5001
Saint John, N.B. E2L 4Y9
Tel.: (506) 658-2400
Fax: (506) 658-3762
1-800-357-9248 (toll-free for residents outside Metro)
P. O. Box 220
Downsview, Ontario M3M 3A3
(8:00 a.m. to 8:30 p.m. Mon. to Fri.)
Tel.: 1-800-267-7263 (automated service)
(8:00 a.m. to 7:00 p.m. Mon. to Thur. and
8:00 a.m. to 5:00 p.m. Fri.)
Tel.: 1-800-267-4330 (live agent)
Fax: (416) 240-2401
3800, rue de Marly
Sainte-Foy, Quebec G1X 4A5
Tél.: 1-800-488-2323/(418) 652-4413
Fax: (418) 646-8270
Address: 100 - 3085 Albert Street
City/Town: Regina, Saskatchewan
Postal Code: S4S 0B1
Phone: (306) 787-8961
Fax: (306) 787-1420
Hours and days of operation: 8:00am to 5:00pm, Monday to Friday
Contact: Program Coordinator
Phone: (306) 787-8961
P.O. Box 4066
Whitehorse, YK Y1A 3S9
Tel.: (867) 667-8231 (general inquiries)
Fax: (867) 393-6212
For example, the BC Family Maintenance Enforcement Program can take the followings steps to collect outstanding support payments:
- Requiring anyone who owes the payor money to pay it directly to the FMEP. This is called "attaching" income, and may be applied to virtually any income, including wages, pensions, income tax refunds or GST credits, workers' compensation benefits or rental income.
- The FMEP may also attach bank accounts or other assets.
- Registering a lien against any land or personal property a payor may own (including a car, boat, trailer or manufactured home).
- Obtaining a court order to seize the payor's personal property and arranging for the sale of that property if the payor does not pay the arrears.
- Bringing the case to court, for a judge to decide on any additional enforcement action.
- If the payor owes more than $2,000.00 in maintenance, reporting the payor to a credit bureau. This may affect the payor's ability to qualify for a credit card or take out a loan.
- If the payor owes more than
$3,000.00 in maintenance:
- instructing ICBC to refuse to issue or renew the payor's driver's licence
- requesting the federal government to suspend, refuse to issue or renew the payor's passport and/or federal aviation or marine licence.
- If the payor owns all or a major part of a corporation, making the payor's corporation liable for the payor's maintenance payments.
- If the payor misses or is late on two payments within the same calendar year, the FMEP will automatically charge the payor a Default Fee. The Default Fee is equal to one month's maintenance, up to a maximum of $400.00. The fee goes to the BC government, not to the recipient, to help the government cover the costs of operating this program.
- The FMEP also charges payors daily interest on the current balance of unpaid maintenance and adds the interest to its records at the end of each month. All interest goes to recipients.
OKs gay marriage
The rush to legal matrimony followed a ruling by the Ontario Court of Appeal, which on Tuesday went further than any court in Canada by changing the definition of who can marry, effective immediately.
Previous court decisions in Ontario and British Columbia had given Ottawa until July 2004 to change its law.
The first gay couple to legally become newlyweds were Crown prosecutor Michael Leshner and his partner Michael Stark, in a civil ceremony before a judge at a downtown Toronto courthouse.
"Today is the death of homophobia in the courtroom as we know it," declared Leshner, as he embraced and kissed his legal spouse.
As Leshner and Stark exchanged rings and sipped champagne, several other couples picked up marriage licences, after the court ordered Toronto city hall to issue them.
In Ottawa, longtime partners Lisa Lachance and Heather Gass said that were hoping to obtain a licence this morning and possibly "do the deed" tonight.
The federal government, which until Tuesday had had more than a year's grace period to recraft its law, scrambled to decide what to do next.
Justice Minister Martin Cauchon met with senior cabinet ministers to discuss his plans, which he will announce today after presenting them to the Liberal caucus.
Cauchon, however, hinted that the government's fight is not over yet.
"We really need a national solution," he said, stressing that Parliament should also have a role to play instead of leaving the "important social issue" entirely up to the courts.
"Having said that, we see the direction that the courts are taking now," Cauchon said.
The government could move as early as today to seek a stay of the court decision, pending a Supreme Court decision.
An appeal would buy time for the Justice Department, but even the Liberals' own research bureau has warned that the government will ultimately lose the fight.
If the High Court agrees to hear the case, it could take another two years before making a decision. The case could become moot in the meantime, considering Paul Martin, the front-runner to replace retiring Prime Minister Jean Chretien, has said it's time for the government to stop appealing.
The court, instead of telling the federal government to change its law, struck down the existing definition of marriage in Canada -- "the voluntary union for life of one man and one woman to the exclusion of all others."
The new definition is "the voluntary union for life of two persons to the exclusion of all others," the court said.
"Exclusion perpetuates the view that same-sex relationships are less worthy of recognition than opposite sex relationships," wrote for the unanimous three-judge panel.
"In doing so, it offends the dignity of persons in same-sex relationships."
The federal government is responsible for the definition of marriage and the provinces oversee the solemnization, including the marriage registration. The decision, which dealt with seven Ontario couples, ordered the provincial government to register marriages.
Ontario Attorney General Norm Sterling said he would not stand in the way of the court's ruling.
"If the decision today says that two people of the same sex can get married, that is the law of the land, then we will register," he said.
But, Alberta Premier Ralph Klein promised to do everything in his power to block the decision and his officials urged the federal government to ask the Supreme Court of Canada to be the final arbiter in the case.
Gay and lesbians activists, along with several MPs, urged Ottawa to stop the failed legal fight.
"I am calling on Jean Chretien, the prime minister, as part of his legacy, to leave a legacy of respect," said Svend Robinson, a gay New Democrat MP.
"Stop the appeals, stop the obstruction, stop the waste of taxpayers' money."
The court decision dismisses every argument from the federal Justice Department, including its contention that the purpose of marriage is procreation.
The court also rejects the fear of churches that gay marriage infringes on religious freedom because it would force them to conduct ceremonies against their will.
The increasing popularity of common-law unions is transforming family life in Canada, according to new data from the 2001 General Social Survey. Over the past 30 years, common-law unions have become more and more popular, especially in Quebec and among younger women in other provinces.
Statistics Canada reported
that between 1995 and 2001, the number of couples living common-law rose
by 20% to nearly 1.2 million couples. In contrast, the number of married
couples increased by just 3%, growing to 6.4 million.
While the common-law relationship continues there is little difference between a marriage and a common law relationship.
The Income Tax Act Canada has for almost a decade recognized, for income tax purposes, common-law relationships, if the parties have a child together or have lived together for a least one year.
There are substantial differences should the relationship end upon the death of one partner or one partner leaves the relationship:
- The Family Law Act of Ontario currently treats common-law relationships as trial marriages(Section 29) unless there are children. You can live together for up to three years without having to worry about court ordered support obligations should you separate during that period.
- The Family Law Act of Ontario, after a common-law relationship has passed the three year mark, treats both parties as if they were married when determining support obligations. Support is based upon the need of one party and ability to pay by the other.
- Should two people living common-law have a child together, the Family Law Act of Ontario states that support obligations, should the couple separate, take effect immediately in spite of the length of the relationship.
- There is no sharing of property when a common-law relationship ends except jointly owned property.
- Should one of the common-law partners die, unless there is a will, there is no right to claim against the deceased partner's estate. However, you can share in your deceased partner's Canada Pension Plan if you have lived together for at least one year.
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