The Divorce Act applies to those living in Canada for at least 12 months looking to dissolve their marriage.

Regardless of where you were married, provided you lived in Canada for at least 12 months, the Divorce Act will apply to your case.

The Divorce Act deals with all aspects of the separation of a marriage couple such as:

1. Parenting rights and obligations
2. Contact with their child
3. Child support
4. Spousal support
5. Changes to the support obligations

History of divorce law in Canada

Prior to 1968, Canada did not have a uniform divorce law applicable across the entire nation.

Each Canadian province would independently handle the divorce in accordance with their own local laws.

Interestingly, in the province of Quebec, the Civil Code of Lower Canada stated that a marriage can only be dissolved by the natural death of one of the parties. 

For so long as the couple was alive, their marriage could not be dissolved.

Divorce Act of 1968

In 1968, the Canadian government finally adopted the Divorce Act, representing a federal law applicable across the entire Canadian nation.

Every province and territory was bound to respect the terms of the Divorce Act regulating and governing the separation of married couples.

Initially, the Divorce Act provided for several grounds:

1. Acts of adultery committed by the other spouse
2. Separation for over three years due to imprisonment, addiction, disappearance, refusal to consummate the marriage or living separate and apart
3. Bigamy
4. Physical and mental cruelty 
5. Conviction of a sexual crime

Divorce Act of 1986

In 1986, the Canadian Parliament modified the Divorce Act as follows:

• Eliminated bigamy as a ground for divorce
• Reduced the separation to a period of 12 months and recognized that the demonstration of a spouse living separate and apart was sufficient as an acceptable ground for divorce 
• A divorce application can be initiated by one spouse or jointly by both spouses

Changes to the Divorce Act effective July 1, 2020

The federal government has brought important changes to the divorce act taking effect starting as of July 1, 2020.

These changes related to the language used to refer to the care of the children after the separation along with how a parent can move with or without a child.

Previously, the Divorce Act referred to children using terms like custody and access rights. 

With the changes to the Divorce Act, we are going to refer to children as decision-making responsibilities, parenting time and contact with children.

Decision-making responsibility

Decision-making responsibility is a parent’s duty to make important decisions about their child’s life such as health, education, religion, culture, medical treatment, activities and so on.

In Quebec, the Civil Code of Quebec deals with the parental authority concept having a similar definition.

The decision-making responsibilities can be shared or awarded to one spouse only.

Parenting time

Parenting time is the new concept referring to the child in the care of a spouse. 

We used to refer to this as the custodial and non-custodial parent.

The spouse with parenting time will have the ability to make the day-to-day decisions concerning the child without having to consult with the other.

Contact with child

Contact refers to the time a parent or someone like a grandparent who has the right to have contact with the child exercises that contact.

This used to be access rights.

If you are granted rights of contact with a child, you do not have the ability to make the day-to-day decisions relating to the child.

Parenting plan and orders

Parenting plan and parenting orders refers to the parenting agreement between the parents or a judgment rendered by the court relating to the parenting rights and obligations related to a child or children.

Parenting plan used to be called a custody agreement and parenting order was a custody judgment.

Best interest of the minor child

The changes to the Divorce Act establishes a list of factors the court must take into consideration when evaluating a child’s best interest.

Article 16(3) of the Divorce Act lists the factors the court must consider to evaluate a child’s best interest:  

1. the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
2. the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
3. each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
4. the history of care of the child;
5. the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
6. the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
7. any plans for the child’s care;
8. the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
9. the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
10. any family violence and its impact on, among other things,
    1. the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    2.  the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
11. any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Family violence

The court must also consider the impact of family violence when rendering a judgment impacting a child.

The court must evaluate a parent’s ability and willingness to care for his or her child.

Many children are victims of family violence during and after separation and the Divorce Act is now empowering the courts to make the most appropriate decision related to the child. 

The Divorce Act sets out the factors that the court must consider in article 16(4):

1. the nature, seriousness and frequency of the family violence and when it occurred;
2. whether there is a pattern of coercive and controlling behaviour in relation to a family member;
3. whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
4. the physical, emotional and psychological harm or risk of harm to the child;
5. any compromise to the safety of the child or other family member;
6. whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
7. any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
8. any other relevant factor.

Relocation and change of residence

The changes to the Divorce Act also deals with the relocation of a parent with a child.

The relocation with a child after separation is a highly disputed topic between parents resulting in legal battles before the court.

Relocation under the Divorce Act means a change in the home of a child or person with parenting time or decision-making responsibilities affecting those with parenting time, decision-making responsibility or contact with the child.

The Divorce Act now provides for a process that parents must follow should they wish to relocate.

The person who wants to move must give a 60 day prior notice of their intention to move giving details about the relocation.

The other parent or person with parenting time ie decision-making responsibility will have 30 days to object to the relocation.

People with contact rights will not have the right to object to the relocation.

If there is an objection, the court will ultimately decision to approve or not the relocation by analysing some factors:

1. Reasons for the move
2. Impact on the child
3. Past judgments 
4. Reasonable plan on how parenting time, decision-making responsibility and contact will be handled after the move 

Legal resources

Here are some useful links for legal resources to help you in your research:

1. Divorce Act
2. Strengthening and modernizing Canada’s family justice system by the Canadian Department of Justice
3. Legislative background from the Canadian Department of Justice

Conclusion

The Divorce Act has been adopted since 1968 and has gone through several important changes. 

In 2020, the Canadian government brought about important changes to the Divorce Act to keep up with the societal and cultural changes that have taken place.

It may take some time before the legal system, judges, lawyers and legal officers fully shift their mindset and adopt the new principles outlined in the Divorce Act.

This is a normal and natural evolution of the laws.

Time will tell how the new principles of the Divorce Act will be interpreted by the Courts.

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