8-Divorce

Business & Family Law, 8-Divorce o 1.1 Family law deals with family issues o 1.2 Common family law problems o 1.3 Different rules for different relationships o 1.4 Family law legislation  1.4.1 Divorce Act  1.4.2 Family Law Act o 1.5 Resolving family law issues  2 Going to court o 2.1 Key words and phrases in family law  3 Get help o 3.1 With more information Understand the legal framework Family law deals with family issues Often, these issues involve couples that have been in a relationship and have now separated. But family issues can also involve people who have never been in a long- term relationship, like a couple who never dated but have a child together. They can involve people who have never been in a romantic relationship at all, like a grandparent who would like to spend time with or care for a grandchild. In BC, family law applies to people in same-sex relationships exactly as it does to people in opposite-sex relationships. There is no legal difference between heterosexual relationships and gay and lesbian relationships. This information provides an introduction to family law and the courts that deal with family law issues. It also defines some common legal words and phrases used in family law. Common family law problems When a couple separates, they must make many decisions. For example:  Does one spouse need financial support from the other spouse? Can the other spouse afford to pay it, and if so, how much and for how long? 3 | P a g e

Business & Family Law, 8-Divorce Property and debt ( Family Law Act ) X X Protection orders ( Family Law Act ) X X X X Resolving family law issues Family law issues can be resolved in ways that don’t involve going to court. Options include:  Negotiation : Where the parties discuss the issues to try to reach an agreement.  Mediation : Where the parties meet with a neutral person (a mediator), who helps them find a solution they agree on.  Collaborative practice : A kind of negotiation where each party has their own lawyer and agree they will do everything possible to reach a settlement without going to court.  Arbitration : Where the parties hire an arbitrator to act as their personal judge to make decisions about their dispute they will be bound by. For more on alternatives to court, see our information on mediation and collaborative practice (no. 111) . If parties can’t resolve their problems using these approaches, they may have to go to court to have a judge resolve their problems. Going to court There are two courts that deal with family law issues, Family Court and Supreme Court. Family Court is a division of the BC Provincial Court. It doesn’t charge court filing fees and its rules and forms are simplified for people who use the court. Family Court can deal only with issues under the Family Law Act , such as guardianship, child care, child support, and spousal support. For more on this court, see our information on Family Court (no. 110) . Supreme Court rules are more complicated and the court charges fees to file certain documents and schedule certain hearings. But Supreme Court can deal with issues under both the Divorce Act and the Family Law Act . So Supreme Court can deal with all the same issues as Family Court, plus divorce and the division of property and debt. Supreme Court Family Court Family Law Act X X Divorce Act X 6 | P a g e

Business & Family Law, 8-Divorce In Canada, only a court can give you a civil divorce. Either spouse may apply for a divorce, but you must prove to the court that your marriage has broken down and that you’ve arranged for the support of any children. It is a crime to marry a Canadian citizen or permanent resident only to gain entry into Canada. Find out more information about marriage fraud . Learn more in various languages, including Arabic, Chinese (traditional), Inuktitut, Korean, Persian, Punjabi, Russian, Somali, Spanish, Tagalog, Tamil and Urdu:  Divorce and Separations  Spousal Support  Child Support Family violence Family violence includes many different kinds of abuse that adults or children may have in their families or homes. All kinds of physical and sexual abuse (including unwanted sexual activity with your husband, wife, partner, boyfriend, girlfriend or children) are illegal under the Criminal Code of Canada . It is a crime to  hit, punch, beat or kick a member of your family  threaten to hurt or kill someone  have any sexual contact with a child  neglect a family member  abuse a family member in a financial or psychological way Canada also does not tolerate female genital mutilation or honour-based crimes. If you are found guilty of a violent crime against a family member, you could be put in jail. If you are the victim of family violence, call the police or 911. There are also special support organizations that can help you, and their contact information is listed in the front pages of the telephone book. Canada takes family violence seriously. You do not have to stay in an abusive relationship to keep your status in Canada . If someone tries to frighten you by saying that you will be deported or lose your children for reporting family violence, contact the police or a support organization right away for help. Child abuse and neglect Parents can be charged with a crime if they do not provide for their children under the age of 16. This includes  feeding 9 | P a g e

Business & Family Law, 8-Divorce Survey data handled by a third party. Privacy Marriage restrictions Consanguinity The federal Marriage (Prohibited Degrees) Act [2] prevents the following persons from getting married: 2. (1) Subject to subsection (2), persons related by consanguinity , affinity or adoption are not prohibited from marrying each other by reason only of their relationship. (2) No person shall marry another person if they are related lineally, or as brother or sister or half-brother or half-sister, including by adoption. Consent of the spouses Both parties must freely consent. Forcing somebody to get married is a criminal offence under s. 293.1 of the Criminal Code . [3] In addition, s. 2.1 of the Civil Marriage Act stipulates, "Marriage requires the free and enlightened consent of two persons to be the spouse of each other." [4] Age of the spouses Since 2015, federal law has set the absolute minimum marriageable age at 16. [5] Provinces and territories may set a minimum age higher than that. [6] In Canada the age of majority is set by province/territory at 18 or 19, so minors under this age have additional restrictions (i.e. parental and court consent). Section 293.2 of the Criminal Code also addresses marriages of individuals under the age of 16, reading: Everyone who celebrates, aids or participates in a marriage rite or ceremony knowing that one of the persons being married is under the age of 16 years is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years. [3] Section 2.2 of the Civil Marriage Act also states: No person who is under the age of 16 years may contract marriage. [4] These provisions were enacted in 2015. [7] [8] [9] Before 2015, it was possible for children less than 16 years old to get married in some jurisdictions of Canada, with parental consent or a court order. [6] [10] (The legal marriage age with parental consent was possibly as low as 7 in some Canadian jurisdictions. [11] [12] ) Minimum age by province and territory  British Columbia: 18, or 16 with parental consent. [13] [14]  Alberta: 18, or 16 with consent of all parents and legal guardians. [15]  Saskatchewan: 18, or 16 with a "Consent to Marriage of a Minor" form signed and completed by the parent(s) or guardian(s) in the presence of a Saskatchewan marriage licence issuer, clergy or any person authorized to take 12 | P a g e

Business & Family Law, 8-Divorce Divorce Rate (per 100,000 residents per year) in Canada, by year [39] Year Rate 1973 163.2 1974 197.4 1975 218.7 1976 231.2 1977 233.4 1978 238.5 1979 245.7 1980 253.0 1981 272.6 1982 280.4 1983 270.3 1984 254.5 1985 239.8 1986 300.0 1987 363.8 1988 311.7 1989 296.9 1990 283.4 1991 274.7 1992 278.6 1993 272.7 1994 272.0 1995 264.9 1996 241.6 15 | P a g e

Business & Family Law, 8-Divorce   "Marriage Licences | Marriages" . Government of Saskatchewan. Retrieved 2020- 05-20.   "Manitoba Vital Statistics Agency | Province of Manitoba" . Province of Manitoba - Manitoba Vital Statistics Agency. Retrieved 2020-05-20.   ontario.ca https://www.ontario.ca/page/getting-married . Retrieved 2020-05-20. Missing or empty |title= ( help )   "Legal age for marriage" . Ministère de la justice. Retrieved 2020-05-20.   Government of New Brunswick, Canada (2017-10-16). "Getting Married - Frequently Asked Questions" . www2.snb.ca. Retrieved 2020-05-20.   Scotia, Communications Nova (2018-05-01). "Apply for a Marriage Licence" . novascotia.ca. Retrieved 2020-05-20.   Toolkit, Web Experience (2016-12-20). "Getting a Marriage Licence in PEI" . princeedwardisland.ca. Retrieved 2020-05-20.   "Getting Married" . Service NL. Retrieved 2020-05-20.   "MARRIAGE ACT" (PDF). gov.yk.ca/. Retrieved 2020-05-20.   "Marriage" . justice.gov.nt.ca. Retrieved 2020-05-20.   "Nunavut Marriage FAQs" . canadianbirthcertificate.com. Retrieved 2020-05-20.   "Divorce Act, RSC 1985, c. 3 (2nd Supp.)" . Justice Laws Website. Department of Justice (Canada) . 2007.   Interpretation . Canadian Legal Information Institute .   Jurisdiction . Canadian Legal Information Institute .   Divorce . Canadian Legal Information Institute .   Child support orders . Canadian Legal Information Institute .   Spousal support orders . Canadian Legal Information Institute .   Priority . Canadian Legal Information Institute .   Custody orders . Canadian Legal Information Institute .   Variation, rescission or suspension of orders . Canadian Legal Information Institute .   Provisional orders . Canadian Legal Information Institute .   Appeals . Canadian Legal Information Institute .   General . Canadian Legal Information Institute .   "Divorce and suicide rates, per 100,000, Canada, 1950 to 2008" . Statistics Canada . 18 | P a g e

Business & Family Law, 8-Divorce 2) Requirements of Your Marriage Ceremony The second set of rules about getting married deals with how your marriage ceremony is performed. If you get married in Canada, your marriage must follow the law of the province where your ceremony takes place. Both partners must attend the ceremony in person. It is not possible to be married over the phone or internet. Both partners must stand in front of a person who is legally allowed to perform the ceremony. In Ontario, before you get married, you must get a marriage licence from a government office in the town, city or municipality where you live. The licence, which costs a small fee, is valid for three (3) months. You must bring the licence to be signed by the person who performs the marriage ceremony, anywhere in Ontario. For a marriage to be legal in Ontario, the person who performs your marriage ceremony has to be licenced or approved by the government. You can be married in a religious ceremony or a civil (non-religious) ceremony in Ontario.  Religious ceremony: A religious official who is registered to marry people in Ontario can legally marry you, such as a Pastor, Priest, Rabbi or Imam.  Civil ceremony: A judge, Justice of the Peace, city clerk or someone else licenced to perform marriages in Ontario can legally marry you. A marriage certificate is an official paper that proves that you are legally married. You can get a marriage certificate if two people who watch your marriage ceremony sign the marriage licence, and the person who performs your ceremony sends the signed and filled in marriage licence to a government records office. In Ontario, the office is called Service Ontario. Are marriages from other countries legal in Canada? Most of the time, legal marriages performed outside Canada will be recognized as legal here. If you are living in Canada and you go to another country to get married, your ceremony must follow the marriage requirements of the country where you get married. To be a legally valid marriage in Canada, you must also follow the rules about who is allowed to marry under Canadian law (explained above). Polygamy You should know that having more than one spouse (called “practicing polygamy”) is against the law in Canada. If you were married in a country where polygamy is legal, only one marriage to one other person will be recognized as legal here. There can be both criminal consequences, and immigration consequences if you immigrated to Canada, related to practicing polygamy here. If you are concerned about 21 | P a g e

Business & Family Law, 8-Divorce how polygamy could affect you, a criminal law lawyer and an immigration law lawyer can help you. If you are unsure if your marriage is legal in Canada, or if you have questions about your rights and your children’s rights, it is important to get legal advice from a family law lawyer. Do I automatically become a Canadian citizen if I marry someone who is a Canadian citizen? Marriage to a Canadian citizen does not give you citizenship in Canada automatically. There are specific procedures you have to follow to become a Canadian citizen and requirements that you must meet to apply for citizenship. There is no special process for people who are married to Canadian citizens, but a Canadian citizen or permanent resident may sponsor a spouse to live in Canada as a permanent resident. For more information about permanent residence, sponsorship or citizenship, see the Citizenship and Immigration Canada website at www.cic.gc.ca. You can also read our booklet on “Family Law Issues for Immigrant, Refugee and Non-status Women”. Divorce and Separation in Canada Divorce is when you legally end your marriage. Separation is when two partners who are married or who have been in a relationship without getting married decide to end their relationship and live separate lives. If you are married you can be separated even if you do not get a legal divorce. But, if you or your partner wants to marry someone else, you must get a divorce first. Family breakdown is a difficult, stressful time. If you and your partner divorce or separate, you will have to sort out many legal issues. You will likely have to decide about financial support, make arrangements about your children, and divide your family property. Not every situation needs a lawyer, but for many family law problems, it is important to get legal advice. For more information about how to find and pay for a family law lawyer, see our booklet on “ Finding Help with your Family Law Problem ”. Married spouses have to get a Divorce Order from the Court if they want to legally end their marriage. If you get a divorce, you can ask the Court at the same time to decide other family law issues such as dividing your family property, support payments for you and your child, and parenting plans that decide whether a parent gets custody or access to visit children. 22 | P a g e

Business & Family Law, 8-Divorce If you separate but do not get a divorce, you can still ask the Court to decide any of these issues. You and your partner can also make your own arrangements about property, support payments and raising children, without going to Court. It is a good idea to write down your agreement in a Separation Agreement. You can find more information about Separation Agreements on the FLEW website. How do I get a divorce? To apply for a divorce in Canada, you or your spouse must have lived in Canada for at least one year, immediately before applying for the divorce. You must apply for a divorce in a Court that deals with family law issues, by putting together documents called an Application. An Application for Divorce starts the Court process and explains what you want the Court to decide and order. You do not need your spouse’s permission to apply for a divorce. Either you or your spouse can file an Application for Divorce or both of you can file the documents together. This is called a Joint Application . Your application can ask for only a divorce, or it can ask the Court to decide about child custody, child and spousal support, and how to divide family property at the same time. You can file your Application with or without the help of a lawyer. To get a divorce, you must show that your marriage has broken down and there is no chance that you will get back together. There are three ways to do this: 1. Living “Separate and Apart”: The most common way to show that your marriage has broken down is by living “separate and apart” from your spouse for at least one year. You can be living “separate and apart” even if you continue to live in the same house as your spouse, as long as you are no longer behaving as a married couple. If you try to work on your marriage during the year you are separated, as long as you were back together in the relationship for less than 90 days, you will still be considered separated. You can apply for a divorce as soon as you separate from your spouse, but the Court will not grant the divorce until you and your spouse have been separated for one full year. 2. Adultery: It is also possible to get a divorce if one of you has committed adultery. Adultery is when a married spouse has an intimate relationship with someone they are not married to. 3. Abuse/Cruelty: You can apply for a divorce if your spouse has been so physically or mentally cruel (abusive) that you can no longer live together. 23 | P a g e

Business & Family Law, 8-Divorce In the case of adultery or cruelty, you do not have to wait a year before the divorce is granted. But you have to show proof of the adultery or cruelty/abuse for these types of cases, and this makes the case more complicated and costly. Sometimes, the Court system can be slow and using these reasons to get a divorce might not be any faster than showing you have been living “separate and apart” for at least one year. It is important to get legal advice from a family law lawyer to help you understand the best option for your situation. Are divorces from other countries legal in Canada? There are different ways to have a divorce in another country accepted as legal in Canada. 1. If you or your spouse lived in another country for at least one year before you applied for a divorce, then if the divorce is granted, it will be accepted as legal in Canada. 2. If the person who applies for a divorce in another country can prove that they have a “real and substantial connection” with that country, then if the divorce is granted, it will be accepted as legal in Canada, even if neither of the spouses lived in the country for a year before applying for the divorce. Some ways of showing a “real and substantial connection” with a country are if you are originally from the country and returned there when your relationship ended, or if the person who applied for the divorce owns land or spends a lot of time in the country that granted the divorce. If your divorce is from another country, it may affect your family law rights to spousal support and division of family property in Canada. If you have concerns about a divorce that was granted in another country, it is a good idea to talk to a family law lawyer here. If your divorce is from another country, and you want to marry someone else in Canada, you will have to show proof of your divorce so that you are able to get married here. To do this, you must have an official copy of the Divorce Order. You will need a letter from a lawyer in Canada in the province or territory where you want to get married, that says that your divorce should be recognized under Canadian law. If the Divorce Order is not in English or French, you will also need to get it translated into English or French by an approved translator. The lawyer can also help you with this. Religious barriers to divorce and re-marriage A Court can grant a legal divorce to couples who were married in a civil or religious ceremony. But some religions do not recognize divorce and may say that if you get a civil (non-religious) divorce, you cannot participate in the religious community or get 24 | P a g e

Business & Family Law, 8-Divorce married again in a religious ceremony. Canadian family law does not give you rights to marry within your religion. But everyone who meets the legal requirements (explained above) has the right to get married in a civil ceremony in Canada. Canadian family law cannot force your spouse to give you a religious divorce. But Canadian law does say that spouses cannot use the promise or refusal of a religious divorce to try to get their way in settling family law matters. If your former spouse tries to stop you from getting married again within your faith community, the Court may refuse to decide on your former spouse’s family law application for child custody, support payments or division of family property. Separation for Common-law partners Couples who live together in a relationship but choose not to get legally married are sometimes called “common-law” partners. Common-law partners can end their relationship by separating from each other. You do not need to get a divorce if you were not legally married. Each province has different rules about who is considered to be a common-law partner, and what family law rights common-law partners have when they separate. In Ontario, common-law partners have certain family law rights if:  they have been living together for 3 years or more, or  if they have a child together and have been in a steady relationship. Common-law partners in Ontario have the right to apply for child custody or access, child support, and spousal support when they separate. Even though the law recognizes common-law relationships in many ways, the rules about dividing family property when married couples separate do not apply to common- law couples living in Ontario. In some cases, if you are ending a common-law relationship, the Court may order that you have rights to share in family property that you do not own yourself. Deciding family matters at the end of your relationship Whether you are getting separated or divorced, you and your partner can make arrangements about money and your family with or without the help of lawyers and the Court. If you and your partner can talk easily and honestly, you can make your own agreement about how to settle your family law issues, such as child custody and access, child support, spousal support and division of family property. It is a good idea to put your agreement in writing, with the date, and have both partners sign it. It is best if each partner gets a lawyer to look at the agreement, and to file it with the Court. You can find 25 | P a g e

Business & Family Law, 8-Divorce more information about Alternate Dispute Resolution (agreements out of Court) and Separation Agreements on the FLEW website. If you and your partner cannot agree, or if the relationship is or was abusive, it is safer for you to get a lawyer and consider going to Court to settle issues about parenting arrangements, financial support and how to divide family property. For more information about family law rights after divorce or separation, see our booklets on: “ Child Custody and Access ”, “ Child Support ”, “ Spousal Support ”, “ Domestic Contracts ,” and “ How Property is Divided in Family Law ”. The views expressed in these materials are the views of FLEW and do not necessarily reflect those of the Province. While financially supported by the Law Foundation of Ontario, the content of this publication does not necessarily reflect the views of the Foundation. There is a greater risk of violence when an intimate relationship is ending. If you are in immediate danger, call 911. If you or someone you know is at risk, visit the FLEW website for information on getting support. If you are a francophone woman living in Ontario, you have the right to access French language services in family law court proceedings. For more information regarding your rights, contact a lawyer, a community legal clinic, or the support line Femaide at 1-877- 336-2433, TTY 1-866-860-7082. You can find more information on how to access services in French on our website at www.onefamilylaw.ca or www.undroitdefamille.ca . Divorce Act can be found at: https://laws-lois.justice.gc.ca/eng/acts/d-3.4/ its index: Table of Contents  Divorce Act o 1 - Short Title o 2 - Interpretation o 3 - Jurisdiction o 8 - Divorce o 15 - Corollary Relief  15 - Interpretation  15.1 - Child Support Orders  15.2 - Spousal Support Orders 26 | P a g e

Business & Family Law, 8-Divorce  15.3 - Priority  16 - Custody Orders  17 - Variation, Rescission or Suspension of Orders  18 - Provisional Orders o 21 - Appeals o 21.1 - General o 32 - Transitional Provisions  33 - Divorce Act, R.S. 1970, c. D-8  35.1 - Divorce Act, R.S. 1985, c. 3 (2nd Supp.) o 36 - Commencement Related Information  Related Provisions  Amendments Not In Force Regulations made under Divorce Act  Central Registry of Divorce Proceedings Fee Order (SOR/86-547)  Central Registry of Divorce Proceedings Regulations (SOR/86-600)  Federal Child Support Guidelines (SOR/97-175)  Province of Manitoba for the Purposes of the Definition “applicable guidelines” in subsection 2(1) of the Divorce Act, Order Designating the (SOR/98-288)  Province of New Brunswick for the Purposes of the Definition “applicable guidelines” in Subsection 2(1) of the Divorce Act, Order Designating the (SOR/98-256)  Province of Prince Edward Island for the Purposes of the Definition “applicable guidelines” in Subsection 2(1) of the Divorce Act [Repealed, SOR/2006-145, s. 1], Order Designating the (SOR/98-9)  Province of Quebec for the Purposes of the Definition “applicable guidelines” in Subsection 2(1) of the Divorce Act, Order Designating the (SOR/97-237) Divorce Act (Canada) Article below from Wikipedia, the free encyclopedia at: https://en.wikipedia.org/wiki/Divorce_Act_(Canada) Divorce Act Parliament of Canada Long title [show] Citation R.S.C. 1985, c. 3 (2nd Supp.) 27 | P a g e

Business & Family Law, 8-Divorce Enacted by Parliament of Canada Assented to 13 February 1986 Commenced 1 June 1986 Related legislation First enacted: S.C. 1968-69, c. 24 Repealed and re-enacted: S.C. 1986, c. 4 Keywords Divorce; Canada The Divorce Act [1] ( French : Loi sur le divorce ) is the federal Act that governs divorce in Canada . The Constitution of Canada gives the federal Parliament exclusive jurisdiction to regulate the law of marriage and divorce. Contents  1 History of divorce law in Canada  2 Reform of the law o 2.1 1968 Act o 2.2 1986 Act  3 Later amendments o 3.1 Religious divorce (1990) o 3.2 Same-sex marriage and divorce (2005)  4 Notes  5 References  6 Further reading  7 External links 28 | P a g e

Business & Family Law, 8-Divorce History of divorce law in Canada There was no uniform federal divorce law in Canada until 1968. Instead, there was a patch-work of divorce laws in the different provinces, depending on the laws in force in each province at the time it joined Confederation:  In the three Maritime provinces , divorce was governed by laws enacted by the colonial governments prior to Confederation in 1867 (in Nova Scotia from 1758, in New Brunswick from 1791, and in Prince Edward Island from 1833); [2] [3]  In the three prairie provinces and the northern territories, divorce was available under the English Matrimonial Causes Act 1857 , [4] which was incorporated into their local law in 1870 under the terms of the Rupert's Land Act 1868 ; [5] [6] [7]  In 1867, the Colony of British Columbia had declared that the laws of England, as they stood at November 19, 1858, were to apply "so far as they are not from local circumstances inapplicable", [8] and this declaration was later held to have included the 1857 UK Act as it stood at that time; [9] Until 1937, there was no right of appeal from a BC divorce proceeding. [10]  In Quebec , the Civil Code of Lower Canada declared that "Marriage can only be dissolved by the natural death of one of the parties; while both live it is indissoluble." [11] [12] Newfoundland never enacted a divorce law, and the local courts did not even grant judicial separations until 1948. [13] The only way for an individual to get divorced in these provinces—as well as in cases where the domicile of the parties was unclear—was to apply to the federal Parliament for a private bill of divorce. These bills were primarily handled by the Senate of Canada where a special committee would undertake an investigation of a request for a divorce. If the committee found that the request had merit, the marriage would be dissolved by an Act of Parliament .  In Ontario , divorce was not available (although several efforts had been made prior to Confederation to bring it about), [14] and individuals seeking a divorce also had to apply to Parliament for a private bill of divorce. In 1930, Parliament passed the Divorce Act (Ontario) , which authorised divorces and annulments to be pursued in the courts of Ontario for Ontario residents according to the law of England as it stood at July 15, 1870 (and thus on the same footing as the prairie provinces and the territories). [15] Ontario and Quebec residents could attempt to obtain a divorce in the United States , but the validity of such decrees could be subject to review in the Canadian courts on the issue of domicile. [16] In 1885, the Supreme Court of Canada ruled that a New York divorce was valid, even though the husband was living in Montreal , as "the burden was on the husband of showing that he had actually changed his domicile animo et de facto ". [17] The consequences where a divorce was not recognized (e.g., it was obtained in a divorce mill , such as Reno, Nevada once was) and where one of the parties had already remarried proved to be awkward in certain cases. [18] 29 | P a g e

Business & Family Law, 8-Divorce The UK Act provided that a husband could sue on grounds of adultery , but a wife would have to allege adultery together with other grounds. [19] In 1925, Parliament provided that a wife could sue on grounds of simple adultery. [20] In 1930, Parliament extended relief to deserted wives, by providing that, in the provinces where divorce was available, they could pursue proceedings on the grounds of desertion, so long as there had been separation from the husband for at least two years. [21] In 1963, provision was made for the Senate of Canada to be able to dispose of parliamentary divorce petitions by way of resolution instead of by a private Act . [22] Reform of the law 1968 Act In 1968, Parliament passed its first Divorce Act , which established a uniform divorce law across Canada. [23] In addition to bringing about uniformity, the 1968 Act :  placed both spouses on an equal footing in pursuing a divorce and specified that the grounds included: [24] o adultery, o conviction of a sexual offence , o bigamy , o mental or physical cruelty, or o a permanent breakdown of the marriage, arising from a separation of three years' duration because of imprisonment of the other spouse, [a] addiction, disappearing in circumstances where it is not known where the spouse may have gone, inability or refusal to consummate a marriage, or living separate and apart during that time. [b] [27] and  declared that "the domicile of a married woman shall be determined as if she were unmarried, and, if she is a minor, as if she had attained her majority", [28] with one year's residence in the province where the divorce order was sought, [29] and provided that foreign divorces would be recognized as long as the foreign jurisdiction had similar rules with respect to the wife's domicile. [30]  provided that, where proceedings were initiated in separate provinces by each of the spouses, the one that commenced first would normally be the one that would be allowed to proceed. [31] If both such proceedings were initiated on the same day, they would both be removed to the Divorce Division of the Exchequer Court . [32]  provided that judgment would be in the form of a decree nisi , which would only become absolute three months later, after the court was satisfied that all rights of appeal had been exhausted. [33] 30 | P a g e

Business & Family Law, 8-Divorce 1986 Act In 1986, Parliament replaced the Act , which simplified the law of divorce further. [34] It brought forth several significant changes:  An application for divorce could be initiated by either spouse or both of them jointly. [35]  Breakdown of the marriage was specified as the sole ground for divorce, as evidenced by the spouses living separate and apart for the one year prior to the divorce proceedings (and being so at the date of their commencement), or by having committed adultery, or physical or mental cruelty, at any time since the celebration of the marriage. [36]  Domicile was no longer required, and a court had jurisdiction where one of the spouses had been resident in the province for at least one year prior to the commencement of the proceedings. [37]  The Divorce Division of the Exchequer Court became part of the Federal Court of Canada – Trial Division . [38]  The divorce became effective 31 days after the judgment granting it was rendered, provided that it is not under appeal. [39]  Foreign divorces are recognized for all purposes of determining the marital status of any person in Canada, provided that: [40] o for those granted after July 1, 1968, they were granted in circumstances that conformed to the Canadian rules relating to domicile that existed at the time; o for those granted on or after the new Act came into force, they were granted in circumstances that conformed to the Canadian rules relating to residence immediately before the commencement of such proceedings; but o the rules of law relating to the recognition of divorces (otherwise than under the Act ) remain in effect. Later amendments Religious divorce (1990) While divorce is a civil matter in Canadian law, lobbying from Jewish women's groups such as the Canadian Coalition of Jewish Women for the Gett [41] served to highlight the problem of agunah in Canada, and the connected problem of obtaining a get in the Jewish rabbinical courts . The Act was amended in 1990 to provide that: [42]  a spouse (called the "deponent") may file an affidavit upon the other spouse identifying the particulars of the marriage, the nature of any barriers to remarriage in the deponent's religion that are within the other spouse's control, whether such barriers have been removed, or, where a request has been made to have such barriers removed, whether the other spouse has failed to remove them; 31 | P a g e

Business & Family Law, 8-Divorce  the spouse served with the affidavit has 15 days to respond that such barriers have been removed to the court's satisfaction; and  the court may dismiss an application by the other spouse, and strike out the other spouse's pleadings, where no response to the deponent's affidavit is received. There are still certain complications arising from the application of this provision. [43] In one Quebec case, the Supreme Court of Canada ruled that an agreement by divorcing parties, providing that the ex-husband would proceed forthwith to obtain a get , provided grounds for the ex-wife being able to obtain damages as a result of him reneging on it. [44] Same-sex marriage and divorce (2005) During the period 2001–2005, same-sex marriage began to be available as a result a series of court cases in almost all provincial and territorial courts, which held that same- sex marriage was required by Section 15 of the Canadian Charter of Rights and Freedoms . [45] In 2004, the Supreme Court of Canada held in the Reference re Same- Sex Marriage that such marriages were within the exclusive legislative authority of the Parliament of Canada , but declined to address the s.15 argument. [46] In 2005, Parliament passed the Civil Marriage Act , which made same-sex marriage the law throughout Canada, [47] and also amended the Divorce Act to change its corresponding meaning of "spouse" to mean "either of two persons who are married to each other." [48] Later Canadian and foreign court proceedings revealed complications arising from the application of private international law , so that, while same-sex marriages solemnized in Canada may be legal when its jurisdiction, they must also be valid according to the rules of domicile that apply to the celebrants. [49] As well, the Divorce Act' s one-year residence requirement resulted in Canadian divorces not being able to be granted to spouses who are both non-resident. [49] The CMA was amended in 2013 to provide for a separate divorce process to be available, outside the Divorce Act , to nonresident spouses in the province where the marriage took place, and such divorces have immediate effect. [50] Notes 1.  but only two years' separation was necessary in cases where the respondent was convicted of death or was imprisoned for a term of ten years or more, where all rights of appeal had been exhausted [25] 1.  but a petitioner who had deserted the other spouse had to wait five years before presenting such a petition [26] 32 | P a g e

Business & Family Law, 8-Divorce References 1.  Divorce Act , R.S.C. 1985, c. 3 (2nd Supp.) .   Backhouse 1986 , pp. 267-270.   Da Costa 1969 , pp. 129-130.   Matrimonial Causes Act 1857 , (U.K.) 20 & 21 Vict., c. 85 (as amended to 1868)   An Act for the temporary Government of Rupert's Land and the North-Western Territory when united with Canada , S.C. 1869, c. 3, s. 5   Walker v Walker [1919] UKPC 58 , [1919] A.C. 956 (3 July 1919) (on appeal from Manitoba)   Board v Board [1919] UKPC 59 , [1919] A.C. 956 (3 July 1919) (on appeal from Alberta)   The English Law Ordinance, 1867 , Ord.B.C. 1867, c. 70, s. 2   M., falsely called S. v S. , (1877) 1 B.C.R. (Pt.1) 25, at 35 and 40 (B.C.S.C.). later held as rightly decided by the Judicial Committee of the Privy Council in Watts v Watts [1908] UKPC 53 , [1908] AC 573 (30 July 1908) (on appeal from British Columbia)   The British Columbia Divorce Appeals Act , S.C. 1937, c. 4   CCLC, art. 185   Backhouse 1986 , p. 271.  English, Christopher; Flaherty, Sara (2003). " ' What is to be Done for Failed Marriages?' The Supreme Court and the Recovery of Jurisdiction over Marital Causes in Newfoundland in 1948" . Newfoundland and Labrador Studies. 19 (2): 297–321. ISSN 1715-1430 . , discussing Hounsell v Hounsell 1949 CanLII 281 (  NL SCTD) , [1949] 3 DLR 38 (8 April 1949), Supreme Court (Trial Division) (Newfoundland & Labrador, Canada)   Backhouse 1986 , pp. 270-271.   The Divorce Act (Ontario), 1930 , S.C. 1930, c. 14   Backhouse 1986 , pp. 279-280.   Stevens v Fisk , (1885) 8 L.N. 42 (S.C.C. January 12, 1885).   "Canada Won't Permit Heir To Wed His Wife Over Again" (PDF). New York Post . 21 January 1938. p. 5.   Da Costa 1969 , p. 129. 33 | P a g e

Business & Family Law, 8-Divorce   The Divorce Act , S.C. 1925, c. 41   The Divorce Jurisdiction Act, 1930 , S.C. 1930, c. 15   Dissolution and Annulment of Marriages Act , S.C. 1963, c. 10   Divorce Act , S.C. 1967-68, c. 24   Da Costa 1969 , p. 130.   S.C. 1967-68, c. 24, s. 4(1)(a)(ii)   S.C. 1967-68, c. 24, s. 4(1)(e)(ii)   S.C. 1967-68, c. 24, ss. 3-4   S.C. 1967-68, c. 24, s. 6(1)   S.C. 1967-68, c. 24, s. 5(1)   S.C. 1967-68, c. 24, s. 6(2)   S.C. 1967-68, c. 24, s. 5(2)(a)   S.C. 1967-68, c. 24, s. 5(2)(b)   S.C. 1967-68, c. 24, s. 13   Divorce Act, 1985 , S.C. 1986, c. 4   S.C. 1986, c. 4, s. 8(1)   S.C. 1986, c. 4, s. 8   S.C. 1986, c. 4, s. 3(1)   S.C. 1986, c. 4, s. 3(3)   S.C. 1986, c. 4, s. 12   S.C. 1986, c. 4, s. 22   "Resources for Agunot" . jofa.org. Jewish Orthodox Feminist Alliance. Retrieved 1 April 2015.   s. 21.1, as inserted by An Act to amend the Divorce Act (barriers to religious remarriage) , S.C. 1990, c. 19   Fournier, Pascale (2012). "Halacha, the 'Jewish State' and the Canadian Agunah: Comparative Law at the Intersection of Religious and Secular Orders" (PDF). Journal of Legal Pluralism . 44 (65): 165–204. doi : 10.1080/07329113.2012.10756685 . at 171-177.   Bruker v Marcovitz 2007 SCC 54 , [2007] 3 SCR 607 (14 December 2007) 34 | P a g e

Business & Family Law, 8-Divorce   Hurley, Mary C. (2 February 2005). "LS-502E - Bill C-38: The Civil Marriage Act" (PDF). Library of Parliament . pp. 6–8.   Reference re Same-Sex Marriage 2004 SCC 79 , [2004] 3 SCR 698 (9 December 2004)   Civil Marriage Act , S.C. 2005, c. 33   S.C. 2005, c. 33, s. 8   Kirkby, Cynthia (9 March 2012). "Legislative Summary of Bill C-32: An Act to Amend the Civil Marriage Act" (PDF). Library of Parliament . pp. 2–3. 1.  Civil Marriage of Non-residents Act , S.C. 2013, c. 30 Further reading  Jordan, F.J.E. (1968). "The Federal Divorce Act (1968) and the Constitution" (PDF). 14 (2): 209–271.  Da Costa, D. Mendes (1969). "The Divorce Act, 1968 and Grounds for Divorce Based upon Matrimonial Fault" . Osgoode Hall Law Journal . 7 (2): 111–154.  Backhouse, Constance (1986). " " Pure Patriarchy": Nineteenth-Century Canadian Marriage" (PDF). McGill Law Journal . 31 (2): 264–312.  Douglas, Kristen (27 March 2001). "Divorce Law in Canada" . Library of Parliament . 5-“Marriage breakdown”; “Separation”; “Adultery”; “Cruelty” Go to: https://www.separation.ca/videos/divorce-separation/grounds-for-divorce/ Grounds for Divorce In order to receive a court application for divorce, it is required that you identify the ground on which you are seeking divorce. Today, we will discuss the 'Grounds to Obtain a Divorce Order' Hello, my name is Daphna Schwartz of the Feldstein Family Law Group. Today, I would like to speak about the ‘Grounds to Obtain a Divorce Order’. In order to bring a court application for divorce, you must identify the ‘ground’ on which you are seeking the divorce. Essentially, the term “ground” for divorce is the reason why the courts will grant a divorce. In Canada, there are three grounds for divorce: 35 | P a g e

Business & Family Law, 8-Divorce 1. cruelty, 2. adultery, and 3. separation. Cruelty is defined when one spouse treats the other with physical or mental cruelty of such kind that the spouses are no longer able to live together. This means that mere incompatibility does not amount to cruelty. For example, if your spouse were to call you names on occasion, this would likely not be considered cruelty. However, if your spouse constantly calls you names or abuses you in other ways, this may be considered cruelty. The ground of Adultery is when one spouse has an affair. The spouse that has the affair cannot apply under this ground, nor can a joint application for adultery be made. Further, suspicion is not enough to prove adultery. A judge must infer from the evidence that adultery in fact occurred. Proving adultery can be difficult because section 10 of the Ontario Evidence Act states that no witness should be asked or bound to answer any question that may show that he or she is guilty of adultery. The ground of Separation is defined as the parties living separate and apart for a period of at least one year. Separate and apart does not necessarily mean living in separated houses. It can mean living separate and apart, under the same roof, in other ways, such as not having meals together, not attending social events together, or sleeping in separate bedrooms. Separation is the most commonly used ground for divorce. This is due to the fact that the grounds of Cruelty and Adultery may be difficult to prove. Remember, even if you have grounds for divorce, the courts may refuse to grant the divorce if they are not satisfied with the child support arrangements which are in place. Also go to: https://www.fairwaydivorce.com/blog/grounds-for-divorce-in-canada Grounds for Divorce in Canada There are three grounds for divorce in Canada. These are set out in the Canadian “Divorce Act.” They are cruelty, adultery, or living apart for one year. You only need one of these to justify the need for the dissolution of your marriage legally. The Divorce Act is Federal therefore it applies to all provinces and territories. The 3 Grounds for Divorce In Canada, there are three grounds for divorce: 1. Separated for one year, 2. adultery, or 3. cruelty. 36 | P a g e

Business & Family Law, 8-Divorce We recommend you apply for divorce based on the grounds of separation rather than cruelty or adultery. In general, they are costly and often hard to prove. The vast majority of divorces happen because of one year of separation. 1. One year of separation This ground requires you to be living separate and apart for one year before you can apply for a divorce. Many will use this time to negotiate their Separation Agreement that sets out all the decisions with regards to children and assets. Given that negotiating the separation agreement takes time, the one year often approaches quickly. The definition of “living separate and apart” does not always require that two people to be living in different residences to be considered separate and apart. It is possible to file for divorce while still living in the same residence. Here is a list of some of the tests to determine if it meets the criteria:  Separate rooms  No sexual relationship  Have separate social lives  Live as roommates, not a couple  Hold yourself out as not being a couple  If the parties agree on their date of separation, it generally will not be challenged by the court. 2. Adultery Committing adultery means having a sexual relationship with someone who is not your legal spouse. Once a spouse has been “cheated” on, they can use adultery as a reason to file for divorce. The “cheating” spouse can admit to infidelity; otherwise, you need to prove it in court. Adultery is not often admitted to because the unfaithful person needs to confirm in writing that they had sex outside the marriage. Then it is filed with the courts and remains in the public domain as a signed affidavit admitting wrongdoing. There is another complicating factor. The other spouse cannot forgive the act of adultery. Given the complexity of emotions that surround this event, there are often plenty of ups and downs before the final decision to divorce is made. You cannot use adultery as grounds for joint divorce. The other spouse must apply for a sole divorce. This one-sided approach for filing for divorce adds layers of expense and 37 | P a g e

Business & Family Law, 8-Divorce complexity. Of course, when the spouse who committed adultery does not want a divorce, then applying using this ground may be the best way to move things forward. The biggest hurdle is proving it in court. 3. Mental or Physical Cruelty To use cruelty as grounds for divorce, living with the other party must be intolerable. You must prove cruelty in court, and the court requires a high standard of proof. As with the ground of adultery, this will be hard to prove unless it is an extreme involving hospitals or the police. Only the spouse who is in distress may use this ground to apply for divorce. This type of application for divorce always goes to court, thereby increasing both costs and stress. Rule of Thumb on Grounds for Divorce Always select the one year of separation, even if you also claim one of the other grounds. That way, you can wait the year if you cannot prove adultery or cruelty. Canada has a no-fault divorce system Canada has a “No-Fault” divorce system, which means that the spouse(s) seeking a divorce does not need to prove that the other spouse did anything wrong. The court does not require that there has been a “matrimonial offence” to grant a divorce. It simply requires the decision to separate and divorce. 1985 Divorce Act (current version) Before 1985, matrimonial offences allowing divorce included bestiality, adultery, desertion, and cruelty. As of 1985, with the new Divorce Act, separation can be the sole ground for divorce; in other words, no-fault. The court does not punish people for matrimonial offences. Unfortunately, many divorcing Canadian couples spend thousands of dollars and many years fighting in court trying to prove that their spouse is wrong, and they are right. The good guy versus bad guy debate results in nothing but lost money and time. The courts do not care about behaviour – good or bad unless it is extreme enough to impact the children’s best interests. This is hard to prove and does not often result in the feeling of vindication for either party. 38 | P a g e

Business & Family Law, 8-Divorce Unequal Division of Property A spouse will not be punished with an unequal division of property because of bad behaviour unless there is a valid reason for the property to be divided unequally under the relevant property division law. Large legal bills pile up because of the expectation that a Judge will award one party more due to the other party’s behaviour or on the claim of “compensatory spousal support.” The unequal distribution of assets is rare. How to get a Divorce in Canada You need to apply to a court for a divorce. As a general rule, to be able to divorce in Canada, you must meet ALL of the following criteria :  Your marriage is legal under the laws of Canada, or under the laws of a country that Canada recognizes.  Your marriage has broken down.  You or your spouse lived in the Canadian province or territory where you apply for your divorce for a full year immediately before making your application. A Judgment will be granted in open court as the result of a trial or application, or it will be signed in the Judge’s office via a Desk Divorce. The document granting a divorce is called the “Divorce Judgment.” The Divorce Judgment will only be granted if the divorce is uncontested or if issues in the divorce are resolved, and divorce has also been requested. Remember, even if you have grounds for divorce, the courts may refuse to grant the divorce, especially if they are not satisfied with the child custody and support arrangements that are in place. A Desk Divorce A desk divorce refers to an application that is uncontested, and both parties have agreed to get divorced without an application in open court. Uncontested does not mean that they did not have issues that needed to be resolved but rather that they both want a divorce and are not contesting it and have agreed on the terms. In a Desk Divorce, the Parties do not have to appear in front of a Judge. After the parties resolve all the issues, they can then submit the final divorce documents. The clerks and the Judge will then review the documents. The Judge will ensure that the support for dependent children, both physically and financially, is to his/her satisfaction. If the application satisfies the Judge, then they will sign the Divorce Judgment. 39 | P a g e

Business & Family Law, 8-Divorce Canadian and Provincial Divorce Legislation Family Law Legislation  Each province has unique legislation  Applies to unmarried couples, or married couples who are not seeking a divorce.  Outlines the care and support of children and spouses/partners Divorce Act  Applies across Canada  Applies to married couples who are seeking a divorce.  Outlines the care and support of children and spouses. Property Legislation  Provincial legislation and names vary per province  Outlines the property division upon separation Top Definitions for Divorce Custody Decision making power for a minor child. Access Time spent with a minor child. Contact Time Time spen t with a child for a non-custodial adult. Child of the Marriage A child under the age of majority who hasn’t withdrawn from the care of his/her parents, or is over the age of majority but can’t leave because of health, disability, or any other reason (post-secondary education). 6-Resumption of cohabitation 40 | P a g e

Business & Family Law, 8-Divorce Go to: https://www.mathewsfamilylaw.com.au/reconciliation-and-resumption-of- cohabitation/ Reconciliation and Resumption of Cohabitation Reconciliation and resumption of cohabitation can have a monumental effect on your divorce proceedings. A reconciliation will affect your date of separation, which in turn can affect property division and other aspects of your case. The impact of reconciliation combined with the attitude that the courts generally prefer parties to reconcile, has resulted in some special rules with regard to reconciliation and resumption of cohabitation. First, with regard to reconciliation, if the court determines that based on the evidence or attitude of the parties, a reasonable possibility of reconciliation exists, the court has the power to suspend the proceedings. This adjournment is designed to allow the parties the time and opportunity to consider reconciliation. However, if either party wishes to resume court proceedings, the court is compelled to grant this request. Moving back in together, more specifically, resumption of cohabitation can also have a huge impact on your divorce proceedings. If you resume cohabiting, and then later agree to separate again, the period of time you had previously been separated may not apply when trying to meet the twelve-month separation requirement for divorce. Now you may be wondering – what exactly equates to a resumption of cohabitation? The answer is that both parties must intend to resume cohabiting, act on that intention, and also be living on substantially the same terms as they were prior to the separation. An agreement to move back in together that never comes to fruition does not meet this standard. Also, simply moving in under the same roof but not resuming other aspects of the marital relationship will not equate to a resumption of cohabitation. If you are considering moving back in with your ex, you should be aware of the special rules regarding resumption of cohabitation. As we mentioned earlier, the court has a preference for parties to make amends, and they would prefer parties at least attempt reconciliation if there is a chance it might work rather than be too afraid to try because of the impact that a reconciliation can have on the divorce proceedings. For this very reason, the court allows parties to move back in together for one period of time up to three months without there being any prejudice to their application for divorce. Practically speaking, if you resume cohabiting and then separate again within three months, you may use the period of time you were previously separated in calculating the twelve-month requirement. On the other hand, if your resumption of cohabitation lasts for three months or longer, you will have to separate for a further twelve months before you can file for divorce. 41 | P a g e

Business & Family Law, 8-Divorce Also go to: https://www.matthewsfolbigg.com.au/news/family-law/divorce-lawyer- explains-resumption-cohabitation/ Once a divorce lawyer has proved that you and your former partner have separated, your divorce lawyer must then prove to the court that there is no likelihood that your cohabitation will resume. Resumption of cohabitation involves the re-establishment of the relationship to the point that it reverses the separation. What happens to the 12 months separation if you and your ex-partner try to make things work again? The Family Law Act promotes reconciliation where possible. For this reason, Section 50 of the Family Law Act permit couples to resume cohabitation during their 12 months separation however it must only be for one intervening period of less than 3 months for it not to “re-start” the 12 month separation period. For example, a couple who have been separated for 2 months, then attempt to reconcile for a period of less than 3 months. After the 2 months of reconciliation, one or both of the spouses decides that the marriage is still not working out. In this case, the original date of separation will stand and the parties will be able to continue the remaining months left to satisfy the required 12 month separation with it only being extended by the attempted reconciliation period of 2 months. 42 | P a g e