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Divorce
in Canada is governed by Divorce
Act (R.S., 1985, c.3 ) a
Federal Law. Unlike the United States where marriage and divorce is largely in the realm of the states, the Constitution of Canada makes matrimony and its termination clearly a federal issue rather than a provincial one.
The federal government shares with the provinces concurrent jurisdiction over child and spousal support when either are incidental to divorce. The provinces have exclusive jurisdiction over spousal and child support, property division, custody and access, adoption, and child protection as part of the provincial government's jurisdiction over property and civil rights. Locate the province of interest and click on it.
Click on the Province of interest
Divorce in Canada- A spouse may only apply for a divorce when the spouses have been separate and apart for at least one year, when there
has been adultery or where there has been abuse.
Child Custody- Child custody can be applied for either under a provincial act or under the federal Divorce Act, where appropriate. The best interest
of the children is the basis of judicial decisions.
Child Support- Child support is determined by the federal Child Support Guidelines. The amount of support is determined by the payor's income and the number of children requiring support. Expensesthat qualify as special or extraordinary as defined in Section 7 of the Child Support Guidelines e.g. certain medical, health, education, employment and extracurricular expenses may be ordered by the court. Such expenses must be necessary and coincident with the best interests of the children and must be reasonable means and needs of the parent and child,
Division of Property- Marital property may be divided at any time during or after the the separation, divorce or death. All marital property is presumed to be split evenly between the spouses.
Spousal Support- The entitlement and value of spousal support is determined
on a wholistic basis that varies greatly depending on the circumstances. There is no single basis of entitlment and there is no single philosophy behind the reasons for support.
The three grounds of entitlement are compensatory, non-compensatory,
and contractual. Based on the court case Moge v. Moge, the court found that in most marriages one party tends to suffer economic disadvantage from the marriage. The disadvantaged party may be compensated to the point of returning both parties to the point they were before the marriage
breakdown. Compensation is measured on the degree of contribution to the marriage, sacrifice, and hardship. Contract-based support is based on what is agreed between the parties in their separation agreement or marriage contract. The non-compensatory basis focuses on the mutual obligation of support created by the marriage. So, in circumstances where one party is disabled the other party will be under an obglitaion to continue their support of the other as part of the initial obligation in marriage.
Separation- Separation occurs within the confines of contracts. The separation agreement is negotiated and drafted like any contract; it agrees to the division of property, assets, as well as support. A separation agreement can be invalidated if it is determined one party had unfairly negotiated.
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