By Aditya Parihar
Divorce rates have been falling in Canada since the 1990s, according to Statistics Canada. However, there were still close to 43,000 divorces granted in this country in 2020, the latest result available.
Dissolving a marriage is governed by federal law although provinces and territories are responsible for the processes of getting a divorce. To be granted a divorce, a couple must prove they have been living “separate and apart” for one year. This is not necessary if one person can prove their spouse has been physically or mentally cruel making it intolerable to continue living together, or that one partner has committed adultery.
The actual marriage ceremony does not necessarily have to take place in Canada for a couple to be granted a divorce in this country However, they must be able to prove they have lived in a Canadian province or territory for at least one year.
The only way to legally end a marriage is to get a divorce, which is an order signed by a family judge that complies with the Divorce Act. The Act addresses issues such as child support, spousal support and parenting arrangements for children in divorce cases. Provincial or territorial laws may also apply to some issues, such as the division of marital property.
This piece of legislation has many moving parts and can be confusing, which is why it is in your best interest to seek legal advice before agreeing to any part of a separation or divorce.
At Demas Schaefer Family Lawyers we are experienced in divorce and family law litigation. We provide cost-effective and constructive solutions and our team has the experience to provide all levels of service to our clients. Our lawyers have been successful in high net-worth negotiations as well as in complex and high-conflict parenting and divorce disputes.
The Divorce Act vs. the Family Law Act
Two pieces of legislation are worth noting for couples whose relationship has ended. The first is the Divorce Act, the main federal law which only applies to married couples who have divorced or who have applied for a divorce.
According to the DoJ, provincial and territories have rules about child support, spousal support, and custody and parenting arrangements for children that apply when an unmarried couple separates and when a married couple separates but does not apply for a divorce.
Alberta’s Family Law Act applies to non-divorce situations, involving such issues as determining:
- parentage, including cases where the child was conceived through assisted reproduction;
- a child’s legal guardians;
- the rights and obligations of parents and guardians;
- the amount of contact between children and others important to them, such as grandparents or aunts and uncles;
- the amount of child support; and
- the amount of support for spouses or adult interdependent partners.
The first Divorce Act was enacted in 1968
Prior to 1968, there was no federal divorce legislation in Canada.
Instead, each province or territory had its own laws. From 1840 to 1968 in fact, many divorces were granted by private acts of the Parliament of Canada.
The Divorce Act established a uniform divorce law across the country. The legislation has been updated through the years, setting out rules governing the grounds for a divorce, child support and spousal support and custody and parenting arrangements for children.
The Act was first amended in 1985 when Parliament enacted “major revisions to almost every section” of the Act. One of the more notable changes in the amended legislation dealt with spousal support.
The new law “severed the relationship that had previously existed between the parties’ conduct and a spouse’s entitlement to support,” according to a Government of Canada publication. The 1985 Act also “brought significant changes to the available grounds for divorce.”
New rules also meant that lawyers had a duty to discuss the possibility of reconciliation with their clients along with the options of negotiating or mediating such divorce issues as support or custody.
Important changes came into effect in 2021
On March 1, 2021, the amended Divorce Act came into force. The government stated the changes to federal family laws were necessary “to promote the best interests of the child, address family violence, help reduce child poverty, and make the family justice system more accessible and efficient.”
The revamped law now has a bearing on how parenting, decision-making, and financial matters are addressed in court. It also deals with contact orders involving non-parents and mobility.
"The changes that we have made to modernize the Divorce Act have been a long time coming,” Minister of Justice and Attorney General of Canada David Lametti said at the time. “We understand how important the changes to the Divorce Act are to Canadians affected by separation and divorce, especially to vulnerable family members.”
Three federal family laws were amended: the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act.
One of the most significant changes made deals with family violence, which the government said “can take many forms and can cause significant harm to both victims and witnesses.”
Family violence is described as conduct that:
- is violent;
- is threatening;
- forms a pattern of coercive and controlling behaviour; or
- causes a family member to fear for their safety or the safety of another individual.
The behaviour does not have to be a criminal offence to be considered family violence. Included would be:
- A child’s direct exposure to family violence or indirect exposure, such as seeing that a parent is fearful or injured, is recognized as family violence and child abuse.
- Physical abuse, such as punching, slapping, kicking and forcible confinement.
- Sexual abuse, including sexual assault, forcing someone to watch violent pornography, or forcing someone to watch others have sex.
- Threats to kill or cause bodily harm to another person, such as a threat to physically harm a child’s friend.
- Harassment and stalking.
- Failure to provide the necessities of life.
- Psychological abuse, such as a pattern of ridiculing or criticizing a family member. The abuse must be threatening, constitute a pattern of coercive and controlling behaviour, or cause a family member to fear for their safety or the safety of another person.
- Financial abuse, such as not giving a spouse access to their bank account or preventing them from working.
- Killing or harming an animal or damaging property, or threatening to do so.
Call us if you have questions
The Divorce Act is complex and can be confusing. Failing to properly understand it can impact your ability to get a fair resolution at the end of your marriage. At Demas Schaefer Family Lawyers, we monitor any changes in the law so we can represent you effectively.
We are here to support and advise you every step of the way during your divorce. We offer a free 15-minute telephone or video consultation where we can discuss your case and explain your options. Contact us today for an appointment.