Divorce Law in Canada

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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:

The Canadian Divorce Act, a Federal Law

The Government of Canada's Divorce Act applies in all parts of Canada.

Grounds for a Divorce

There is one ground for divorce in Canada: "breakdown of marriage." This ground is established if:

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.

Reconciliation is Encouraged

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

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.

Custody & Access

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 Maintenance

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.

Federal Child Support Guidelines

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, Alimony

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.

 

Rewriting Divorce Contracts

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:

  • There must be evidence that one party was particularly vulnerable and unable to negotiate a fair deal.
  • There must be a "significant departure" from the circumstances under which the agreement was signed.
  • 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.........."

     

    Supreme Court of Canada upholds Pre-Nuptial Agreements

    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."

    Enforcement of Child and Spousal Support Payments

    The enforcement of a child support order or spousal support order is governed by provincial and territorial legislation.

    Federal Laws
    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:

    Provincial Enforcement Programs

    The provinces have set up family maintenance enforcement programs:

  • Alberta Enforcement Program
  • BC Family Maintenance Enforcement Program
  • Manitoba Enforcement Program
    2nd Floor – 405 Broadway
    Winnipeg, Manitoba R3C 3L6
    Telephone: (204) 945-7133
    Toll-free: 1-800-282-8069
  • NB Enforcement Program
    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
  • Newfoundland Support Enforcement Program (SEP)
  • Nova Scotia - An InfoLine has been introduced to provide general information about the Program. This service is available twenty-four hours a day by calling:
  • 424-0050 (Metro Halifax residents)
    1-800-357-9248 (toll-free for residents outside Metro)
  • Ontario Family Responsibility Office
    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)
    (416) 326-1818
    (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)
    (416) 326-1817
    Fax: (416) 240-2401
  • Ministère du Revenu/Gouvernement du Québec
    3800, rue de Marly
    Sainte-Foy, Quebec G1X 4A5
    Tél.: 1-800-488-2323/(418) 652-4413
    Fax: (418) 646-8270
  • Organization: Saskatchewan Justice
    Address: 100 - 3085 Albert Street
    City/Town: Regina, Saskatchewan
    Postal Code: S4S 0B1

    Phone: (306) 787-8961
    Fax: (306) 787-1420
    E-mail: aemoinquiry@justice.gov.sk.ca

    Hours and days of operation: 8:00am to 5:00pm, Monday to Friday
    Contact: Program Coordinator
    Phone: (306) 787-8961
  • Maintenance Enforcement Program
    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:

    Ontario Court of Appeal Rules Gays can Marry, Effective Immediately.

    Court OKs gay marriage
    Feds scramble to decide whether to appeal ruling

    Janice Tibbetts
    CanWest News Service, June 11, 2003


    OTTAWA -- Gay and lesbian couples raced to obtain marriage licences Tuesday in a bid to pre-empt any attempt by the federal government to continue its flagging legal fight against same-sex 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.

     

    Common Law Relationships

    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.

     

    Common-law Relationships - Comparison with a traditional marriage

    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:

    Adoption & Locating a Birth Relative

    We have a Separate Page on these Topics

     

    Links to More Information

    Divorce Act

     

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