Domicile in Canada

CANADIAN DIVORCE LAW
(With thanks to the Legal Assistance Center)

Before 1968, Canadian divorce law varied from province to province. Adultery was the sole ground for divorce in most provinces, except in Nova Scotia where cruelty was an additional ground. Spousal support was typically only an obligation that could be imposed on a guilty husband, in favor of his innocent wife. However, the Divorce Act of 1968 introduced nationwide no-fault grounds (in addition to fault grounds) for divorce, and established equality in support rights and obligations between men and women.

Canada's current divorce law came into effect on 1 June 1986. This federal law sets forth the grounds for divorce (which are both non-fault and fault based) and the criteria for spousal and child support and custody of and access to children on or after divorce that apply throughout Canada. The standards for property distribution upon divorce fall outside of the Divorce Act, however, and are regulated by provincial or territorial legislation.

GROUNDS FOR DIVORCE

Under the 1986 law, there is one ground for divorce in Canada: "breakdown of marriage." This ground is established if (1) the spouses have lived apart for at least one year immediately preceding the divorce judgment, (2) the defendant spouse has committed adultery, or (3) 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. It should be noted that 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, which allow a quicker divorce (without the one-year waiting period) are fault-based and are available only to the "innocent" spouse.

Canadian divorce law seeks to encourage reconciliation. The 1986 Act (as did the 1968 Act) requires divorce lawyers to discuss the possibility of reconciliation and to inform clients of available counseling or guidance facilities. The 1986 Act further requires lawyers to promote negotiated settlements and mediation of support and custody disputes.

The 1986 Act (again, like its predecessor) also requires that the court, before considering the evidence in a divorce case, must be satisfied that there is no possibility of reconciliation between the spouses, unless it would not be appropriate to do so under the circumstances. Moreover, the court must adjourn the proceedings if at any stage it sees a possibility of reconciliation, to give the parties the opportunity to attempt to reconcile. The court, either on its own motion or on request of the parties, may appoint a qualified person or agency to assist the parties in this attempt. However, once 14 days have passed from the date of the adjournment, the court must resume the proceeding on the application of either or both spouses. The 1986 Act and its predecessor make clear, however, that any person nominated to assist the parties in a reconciliation attempt cannot testify in any subsequent divorce proceeding, nor is evidence of any admission or communication made in a reconciliation attempt admissible in such a proceeding.

The 1986 Act sets forth four bars to divorce: collusion, connivance, condonation, and the absence of reasonable arrangements for child support. Collusion, which is an absolute bar, exists where the parties have agreed to subvert the administration of justice, for example by fabricating or suppressing evidence. Agreements between the spouses that regulate the economic and child-related consequences of a separation are not collusive, however. Connivance and condonation apply only in cases based on adultery or cruelty, and are not an absolute bar (which means that a court may grant a divorce regardless of connivance or condonation if it believes doing so is in the public interest.) Connivance occurs where the plaintiff has actively promoted or encouraged the defendant's commission of the act that is being relied upon. Condonation occurs where the plaintiff, knowing of his or her spouse's adultery or cruelty, forgives the offence and continues or resumes marital cohabitation with the spouse. However, consistent with its aim of encouraging spousal reconciliation, the Act provides that the resumption of cohabitation during a time period (or periods) totaling less than 90 days will not be considered condonation. Finally, in all types of divorce cases the court must satisfy itself that reasonable arrangements, in light of the circumstances of the case, have been made for the support of any children of the marriage. If such arrangements are not present, the court cannot grant a divorce until they are made.

CONSEQUENCES OF DIVORCE

Division of property

Questions of the division of property upon divorce in Canada are governed by provincial and territorial law. Every province and territory in Canada has legislation establishing property sharing rights between spouses upon divorce. These laws were passed to ameliorate the hardships arising from the doctrine of separate property (whereby each spouse retained his or her own property in a divorce) and to ensure that each spouse would receive a fair share of the assets accumulated during the marriage.

In general, the statutes address the questions of what property is subject to division, how that property is to be valued, and how it is to be shared. Some distinguish between "family" assets used by both spouses and "business" or "commercial" assets used by one. Most of these laws exclude pre-marital assets and certain post-marital assets (such as third party gifts or inheritances) from division. Most give the court the power to divide specific assets, although in at least one province (Ontario) it is the value of the property, as opposed to the property itself, that is shared. In general, under these statues, the division of property upon divorce is not dependent on which spouse owned or acquired the assets.

Custody and access

Under the 1986 Act, a court may grant “custody of, or access to, any or all children of the marriage to any one or more persons." As a result, split custody and joint custody are options, as is awarding custody of or access to the children to third parties, such as grandparents. However, third party applications for custody or access can only be brought with permission from the court.

The 1986 Act provides that decisions as to 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. The court cannot, however, take into consideration the past conduct of a person unless the conduct is relevant to that person's ability to act as a parent.

In addition, in making a custody or access decision, the court is required under the 1986 Act to "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."

In a similar vein, the Act entitles a spouse who is granted access to a child to make enquiries 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.

The 1986 Divorce Act sets forth the following factors that a court must consider in determining whether to award child support (or spousal support): "the condition, needs, means and other circumstances of each spouse and of any child of the marriage for whom support is sought, including (a) the length of time the spouses cohabited; (b) the functions performed by the spouses during cohabitation; and (c) any order, agreement or arrangement relating to support of the spouse or child." Moreover, the Act expressly provides that, in determining support, "the court shall not take into consideration any misconduct of a spouse in relation to the marriage."

The enforcement of a child support order is governed by provincial and territorial legislation. Enforcement of spousal support orders, even those granted in a divorce action, is a matter governed by territorial and provincial legislation, not by the Divorce Act.