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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
under (3) conditions:
1.
When the spouses have been separate and apart for at least one year
2. When there has been adultery or
3. where there has been abuse.
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.
Types of child custody-
Sole
custody- One parent is warded complete supervision over the child
Joint
custody- Both parents share custody of the child
Shared
custody- Both parents have joint custody, and each parent spends at least 40% of the child's custodial time with the child
Split
custody- One parent has custody over one or more children and the other parent has custody over the other children.
Courts will attempt to identify which parent was the primary care-giver, and generally award primary cistody to that parent.
Considerations can include:
getting
the children dressed in the morning
putting
the children to bed at night
teaching
the children to read
bathing
and grooming
arranging
for interaction with playmates
care
of the children while they are not in school or day care
preparing
meals
arranging
and transportation to medical and dental appointments
transportation
to and from school or daycare
transportation
to and from extracurricular activities
buying
the children's clothes
participating
in recreational or educational activities with the children
participating
in the children's religious training
helping
the children with their homework
arranging
the children's birthday parties
participating
in the children's religious training
attending
parent-teacher conferences
caring
for the children when they are ill
disciplining
the children
and
other considerations
Primary residence-
The primary residence is where the child lives the majority of the time. Parents may have joint or shared custody, but
the primary residence is is where the child lives most of the time e.g. 40% with Dad 60% with Mom- primary residence is with
Mom.
Access to the child (Visitation or co-parenting)
This is the amount of time a child will spend with each parent. The courts will generally award access to each parent
unless there is evidence that doing so will place the child in an unsafe environment. Occasionally, supervised access is
ordered when the court has concerns but believes it to be in the best interest of the child.
Child Support
Child support is determined by the federal Child Support Guidelines.
However, the cost of living in each Province determines the exact calculation. This means that the same Federal child support
laws apply to British Columbia, Alberta, Saskatchewan, Manitoba, Ontario, Quebec, Nova Scotia, Prince Edward Island, New
Brunswick, and Newfoundland, although the specific calculations are made by each Province. These calculations take into account
the Province cost of living, how much the parents earn (income) and the number of children that must be supported. Expenses
that 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. Review
child support guidelines that apply across Canada.
Complicating matters, the child support amount specified by Provincial child support tables may not be
the final amount ordered. Canada allows for the above mentioned special expenses, sometimes referred to as Section 7
Expenses,
which are expenses ordered to be paid in addition to child support. Those Section 7 expenses can include medical, day
care, extracurricular, private school and post-secondary expenses, and can be in addition to child support ordered using
guidelines.
There are occasions when child support orders fall below Province guidelines, but those are rare and require
special circumstances (significant incomes, children age 18, etc.)
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 holistic basis that varies greatly depending on the circumstances. There is no single basis of entitlement and there
is no single philosophy behind the reasons for support.
The three grounds of entitlement for spousal support 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 obligation 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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