The present federal Divorce Act has been in force in Canada since June 1985. At the time of its enactment, the Divorce Act and related legislation brought about much needed change in six major areas; the grounds for divorce, the procedure to be used for uncontested divorces, access to the courts, the aims of support, the rights of children, and the enforcement of support, custody and access orders.
For more information download the Centre for Public Legal Education Alberta’s Free Financial Support booklet.
Grounds for Divorce
The Act establishes a breakdown of marriage as the sole grounds for divorce. This breakdown of marriage can be established in one of three ways: spouses living separate and apart for at least one year; adultery of the other spouse—that spouse must be willing to swear an affidavit admitting the adultery; or mental or physical cruelty of the other spouse. Examples of mental cruelty may include excessive drug and alcohol abuse or constant verbal abuse.
The Divorce Act simplified the grounds for divorce and, for all practical purposes, eliminated conduct of the parties as a factor to be considered by the court; therefore, evidence of misconduct is no longer required. After a one-year period of separation, both spouses now have grounds for divorce regardless of conduct. The effect is to reduce the conflict between the spouses and to prevent one spouse from delaying the divorce by refusing to initiate proceedings after a marriage breakdown. Due to the increasing mobility of society, under the Act, the rules with regard to residency requirements have been simplified, and only require that one of the spouses must be “ordinarily resident” in that province for one year; that is, one of the spouses must have lived for one year in the province where she is filing for the divorce. Further, divorced spouses seeking to change a custody, support, or access order granted at the time of divorce are no longer required to return to the province in which the divorce was granted. The Divorce Act allows a variation proceeding in any province where the ex-spouse applying for the change is now living, provided the ex-spouse has resided there for one year.
Bars to Divorce
Divorce law sets out three things you cannot do when applying for a divorce. These are called “bars” to divorce. Three of these bars are called “collusion,” “connivance,” and “condonation.” Collusion is where you make up a story to obtain a divorce. Connivance refers to encouraging your spouse to behave in such a way as to give you grounds for divorce. For example, you cannot knowingly encourage your spouse to commit adultery. Condonation refers to forgiving your spouse for his or her behaviour; that is, if you forgive your spouse for an act of adultery and allow the marriage to continue you do not have grounds for divorce based on that one act. A subsequent act of adultery for which you did not forgive your spouse would be necessary.
Applying For a Divorce
Either or both spouses, immediately upon separation, can now commence divorce proceedings. However, the Divorce Act encourages the reconciliation of spouses and thus allows the spouses to cohabit again after separating for up to ninety days without affecting your divorce status. The Act further requires that a lawyer acting for the spouse applying for the divorce must not only determine that there is no possibility of reconciliation, but must encourage mediation of any issues under dispute. Divorce mediation is a process whereby spouses may be helped to resolve issues arising out of the divorce in a less adversarial fashion using the services of a neutral third party who is often a family law lawyer.
Spousal and Child Support
In making an order for spousal support, the Divorce Act recognizes that marriage is an economic partnership and that both you and your spouse must share equally the economic consequences of marriage breakdown, including any financial consequences arising from the care of the children of the marriage.
Help might be needed for a financially dependent spouse to become economically self-sufficient and the courts can order support to be paid indefinitely or for a reasonable period of time, with strict limitations on the court’s discretion to vary that order after the end of a fixed term. The financially dependent spouse is expected to become financially self sufficient, whenever possible.
The court no longer considers the conduct of the spouses a factor in assessing support. Rather, it reviews the length of time the spouses were married, the functions of each spouse during the marriage and any previous order or agreement providing support for the spouse or the children. In making orders for custody, and access affecting the children of the marriage, the court will look to the best interest of the child as the determining factor. The Divorce Act allows the court to make an order regarding custody or access in favour of either or both spouses (joint custody), or any other person it deems suitable. This means that aunts, uncles, grandparents, or other interested parties may apply for custody of, or access to, the children (for more information on custody and access, see the section on Spousal and Child Support later in this chapter, as well as the next chapter on Women and Children). The Act further recognizes that the spouses have a joint financial obligation to support the children and that obligation is divided between them according to their respective ability to contribute. (For more information on support, see the section on Spousal and Child Support later in this chapter, as well as the next chapter on Women and Children).
Uncontested Divorce
Under the Divorce Act, you may now obtain an uncontested divorce without going to court. This means that if you and your spouse can agree (that is, if there is no dispute on the issues of custody, access, support, or costs) a divorce can be granted without the necessity of a formal court hearing.
The court may grant a divorce based on affidavit evidence only (i.e., the parties to the divorce do not have to go to court—only sworn written evidence is presented). Once the Divorce Judgment is obtained, the Certificate of Divorce is granted automatically after thirty days unless one of the parties appeals. Either party can then obtain a certified copy from the Court of the Certificate of Divorce as proof that the divorce is final.
Uncontested divorce packages are available from the Queens Printer (Edmonton—5th Floor, Park Plaza, 10611-98 Avenue, Edmonton. Phone 780-427-4952 (elsewhere in Alberta, phone 310-0000) or at local stationery stores and registries. Independent legal advice should be obtained in all but the simplest of situations. You must fill out the documents yourself and you are responsible for having papers typed and photocopied. You must also file all the documents at the Court House with the Clerk of the Court. You may use a process server to serve all documents on the other party. The minimum cost of any uncontested divorce is approximately $210, exclusive of any legal fees, and a Certificate of Divorce takes approximately three to four months to obtain.
For more information download the Centre for Public Legal Education Alberta’s Free Financial Support booklet.