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Canadian Divorce Laws

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Canadian Divorce Act:

The Divorce Act of 1968 governs divorce in Canada. Unlike the United States where divorce laws differ from state to state, federal laws govern divorces in Canada. All provinces follow the same laws and regulations. The act was revised in 1986 to establish grounds for divorce and guidelines for child support and spousal support.

This article outlines general laws and regulations pertaining to who grounds for divorce in Canada, period of separation and the role legal counsel and the courts play in divorce.

Chapter 8

(1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage:

(2) Breakdown of a marriage is established only if:

(a) The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) The spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(c) Committed adultery, or

(d)Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Calculation of period of separation:

(3) For the purposes of paragraph (2)(a),

(a) Spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

(b) A period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated.

(i) By reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

(ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totaling, not more than ninety days with reconciliation as its primary purpose.

Duty of legal adviser:

Chapter 9

(1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

(a) To draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

(b) To discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counseling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Idem:

(2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

Certification:

(3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.

Duty of court — reconciliation:

Chapter 10

(1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Adjournment:

(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall:

(a) Adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

(b) With the consent of the spouses or in the discretion of the court, nominate

(i) A person with experience or training in marriage counseling or guidance, or

(ii) In special circumstances, some other suitable person, to assist the spouses to achieve a reconciliation.

Resumption:

(3) Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.

Nominee not competent or compellable:

(4) No person nominated by a court under this section to assist spouses to achieve reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose.

Evidence not admissible:

(5) Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve reconciliation is not admissible in any legal proceedings.

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