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What
is the difference between separation and divorce?
A separation occurs when one or both spouses decide to live apart with
the intention of not living together again. Once you are separated, you may need
to discuss custody, access and child support with your spouse. You may also need
to work out issues dealing with spousal support and property. You can resolve
these issues in different ways:
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You
can negotiate a separation agreement. A separation agreement
is a legal document signed by both spouses which details the
arrangements on which you have agreed. In some jurisdictions,
independent legal advice is required to make the document legally
binding. |
| · |
You
can make an application to the court to set up custody, access,
support and property arrangements under the provincial or territorial
laws that apply to you. |
| · |
You
can come to an informal agreement with your spouse. However,
if one party decides not to honour the agreement, you will
have no legal protection. |
To
legally end your marriage, you need a divorce, which is an order signed
by a judge under the federal law called the Divorce Act.
What if we were never legally married?
If you are not legally married, divorce does not apply to you. However, you can
still negotiate a separation agreement or make an application to the court under
the laws in your province or territory to set up custody, access, child support
and other arrangements. Common-law spouses have fewer rights upon separation
than married couples.
Is the marriage over once I begin divorce proceedings?
The marriage is not over until a judge grants you a divorce order at the end
of the process.
Before you begin divorce proceedings, you may wish to consider whether marriage
counselling could help you and your spouse. Once you have started formal divorce
proceedings, you may stop the process at any time if you and your spouse wish
to think about reconciling. <To
Top>
Who can apply for a divorce in Canada?
You can apply for a divorce in Canada if:
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you
were legally married in Canada or in any other country; and |
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you
intend to separate permanently from your spouse and believe
there is no chance you will get back together, or you have
already left your spouse and do not intend to get back together;
and |
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either
or both of you have lived in the Canadian province or territory
for at least one year immediately before applying for a divorce
in that province or territory. |
Do I need a reason to get a divorce?
To get a divorce, you will have to show that your marriage has broken down. The
law says marriage breakdown has occurred if:
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you
and your spouse have lived separate and apart for one year
with the idea that your marriage is over; or |
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your
spouse has committed adultery and you have not forgiven your
spouse; or |
| · |
your
spouse has been physically or mentally cruel to you, making
it unbearable to continue living together. Cruelty may include
acts of physical violence and those causing severe mental anguish. |
You
can get a divorce if one of these situations applies to you.
Do
I have to prove that my spouse is responsible for our marriage
breakdown?
Under the Divorce Act, you do not need to prove that your spouse was
at fault in order to get a divorce. If the reason you are asking for a divorce
is marriage breakdown, shown by one year of living apart, either of you can
request a divorce. It does not matter which one of you decided to leave. In
fact, the law gives you the choice of applying to the court together to ask
for a divorce.
However, if the reason you are asking for a divorce is marriage breakdown because
of adultery or mental or physical cruelty, you will have to have proof of what
happened.
How do I start a divorce application?
It is always advisable when starting a divorce application to speak to a lawyer
knowledgeable about family law. A lawyer can tell you exactly how the law applies
to your situation and how to protect your rights. You can then decide what
to do.
| 1. |
To
start a divorce application, you fill out the appropriate forms
for your province or territory. If you have a lawyer, he or
she will fill out the forms for you and will be responsible
for processing the divorce. You may obtain forms at government
bookstores, some private bookstores and, in some cases, from
the Internet. In some jurisdictions, court offices and information
centers provide forms. |
| 2. |
There
are a few things in particular that you have to include in
the forms. If there is a child of the marriage, you need to
write down the parenting arrangements, including financial
support. If these arrangements are in dispute, you will need
to describe the arrangements that you are seeking. |
| 3. |
Once
you have completed all the forms, you file them at the courthouse,
pay the required court fees, and follow the court rules and
procedures for your province or territory. |
What if I apply for a divorce and then try to live with my spouse
again?
Before or after you have applied for a divorce on the ground of one-year separation,
you can live together for up to 90 days for the purposes of reconciliation.
If things don't work out, you can continue your action for a divorce as if
you had not spent this time together.
What happens if my spouse and I agree on all the issues raised
by the divorce?
If you and your spouse agree on all issues, you have an uncontested divorce.
How
are decisions made about custody of the children?
Often, deciding on a parenting arrangement after a marriage is over is not
easy. Under the Divorce Act one or both parents may have custody of
the children.
If you cannot agree on a parenting arrangement, the divorce law sets out some
basic principles that a judge must use when making decisions about children.
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The
best interests of the children come first. |
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Children
should have as much contact as possible with both parents so
long as this is in the children's best interests. |
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The
past behaviour of a parent cannot be taken into consideration
by the court unless that behaviour reflects on the person's
ability to act as a parent. |
When
deciding on the best interests of the child, the judge will take
into account a number of factors including:
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Care
arrangements before the separation. (Who looked after the child
most of the time? Who took the child to the doctor and dentist?
Who arranged extracurricular activities? Who dealt with the
child's school and teachers?) |
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The
parent-child relationship and bonding. |
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Parenting
abilities.
|
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The
parents' mental, physical and emotional health.
|
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The
parents' and the child's schedules.
|
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Support
systems (for example, help and involvement from grandparents
and other close relatives).
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Sibling
issues. Generally, brothers and sisters remain together,
but under some circumstances it may be necessary to consider
separating them.
|
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The
child's wishes. (There is no magic age at which a child has
the right to decide where he or she is going to live. The
court gives more weight to the child's wishes as the child
matures. An older teenager's wishes will often be decisive.) <To
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What is joint custody?
Sometimes both parents want a divorce, but want to continue to share their
responsibilities as parents equally. Joint custody means that both of you have
custody of the children. In other words, you both continue to share in making
all the major decisions concerning the children (about discipline, school,
major outings, holidays, etc.). If there is joint custody, many different living
arrangements are possible. The children may live with each parent about the
same amount of time or live mostly with one parent.
What are my responsibilities if I have custody of my children?
If you and your spouse agree that you should have custody of the children,
or if the judge decides that you should have custody, you have the responsibility
for making the major decisions about your children's upbringing and schooling.
The children will usually live with you most of the time.
In most cases, the other parent still has responsibility to care for the children
some of the time. Remember, the law says that there should be as much contact
as possible with both parents as is best for the children. However, in serious
circumstances, a judge may decide that it is in the children's best interests
not to spend time with the other parent.
Children benefit from the opportunity to develop meaningful
relationships with both parents and with other extended-family
members as long as it is safe and positive to do so.
I don't have custody. Can I still spend time with my children?
Generally, the parent who does not have custody of the children still has responsibility
to spend time with them. If you cannot agree on these access arrangements,
the court will decide for you.
A parent with access:
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usually
spends time with the children, such as on a weekday evening,
on weekends and on holidays; and |
| · |
may
ask for information about the children—news about their
health and well-being and about how they are doing at school. |
As a parent
with access responsibilities, you can ask the court to order the
other parent to give you advance notice—at least 30 days—if
he or she intends to move the children to another home.
Do I have to use the terms “custody” and “access” when
deciding upon parenting arrangements?
The Divorce Act uses these terms, but this does not limit the types
of parenting arrangements that may be included in written agreements or legal
documents. Other words or descriptions can also be used to set out parenting
roles and responsibilities.<To
Top>
How
is the amount of child support determined?
Even after divorce, both parents have a legal duty to support their children
financially.
Once you have worked out the residential arrangements for your children, you
will need to look at the payment of child support. Before granting a divorce,
the judge must be satisfied that appropriate financial arrangements have been
made.
You will use a set of rules and tables, called child support guidelines, to
help you figure out the amount of child support. The federal government has
produced a number of publications to help you calculate child support. (See
page 17 for information about obtaining these publications.)
Who pays child support depends on the child's residential arrangements. The
basic amount is based on three things:
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the
paying parent's income; |
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the
number of children involved; and |
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the
province or territory where the paying parent lives. |
In some
circumstances, the base amount can be increased or decreased. For
example, the amount could be adjusted if the children have special
expenses, such as childcare. The amount could also be adjusted to
prevent financial hardship for a parent or the children. This might
be fair when, for example, the parent paying the child support is
suffering a hardship—perhaps because that parent is supporting
a new family and has a lower standard of living than the parent receiving
the child support.
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The
person who receives the child support payments does not have
to list them as income on his or her income tax form. |
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The
person paying the child support cannot deduct the support payments
from his or her income. |
How is spousal support decided?
During a marriage, spouses usually share their love, their time and their income.
They both invest in their life together. But unlike an investment with a bank
that pays a given amount of interest, an investment in a life together is difficult
to add up and then divide.
For example, you may have worked and paid all the bills. Maybe you worked while
your spouse trained to get a better job. Or you may have helped in your spouse's
business. Often, a spouse gives up a job so that he or she can stay home, manage
the household, and care for the children. These contributions to a marriage
all have value. The Divorce Act sets out factors and goals to be considered
when figuring out if one spouse should pay another spouse financial support
after a divorce. Among these factors are answers to the following questions.
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How
long did you live together? |
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What
was your role in the marriage? |
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Who
is living with the children? |
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The
amount of spousal support to be paid depends on the needs of
each spouse and on their income and resources. |
Other
things are also important. The law sets several goals to keep in
mind.
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Spousal
support should give value to the contributions made during
the marriage. If one spouse has benefited financially from
a contribution, the other spouse should be compensated. |
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Another
goal is to make sure that after a marriage is over, one spouse
doesn't suffer economic hardship. |
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A
third goal is to make sure that the spouse who lives with the
children is not at a financial disadvantage because of that. |
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Finally,
spousal support should help each spouse become economically
independent within a reasonable amount of time, if possible. |
A judge
can order one spouse to pay spousal support to the other for a particular
amount of time or indefinitely.
Does it matter whose fault it is that the marriage is
over?
The reasons your marriage is over have nothing to do with your financial obligations
to each other after a divorce. The divorce law says clearly that the court
will not consider the behaviour or misconduct of either spouse in deciding
on support payments. Fault is not taken into account. <To
Top>
How do we divide up our property?
The Divorce Act does not deal with sharing your property or debts. Each
province and territory has its own law that sets out the rules for dividing
the property and debts you and your spouse have.
" Property" includes such things as the home you and your spouse shared,
its contents, any other real estate, pensions from employment, Canada or Quebec
Pension Plan credits, RRSPs, investments, bank accounts and cash. Debts include
such things as amounts you owe on your credit cards, your mortgage, and any loans
you have. Some provinces or territories also include business assets in their
definition of property. It is very important to receive legal advice on property
division.
Usually, people who are separating come to an agreement about how to divide
the property and debts fairly. This agreement may become part of the written
separation agreement.
For separation agreements to be legally binding, they usually require independent
legal advice and full financial disclosure.
In some provinces and territories, if you wait too long after your separation
or divorce to make a claim, you may lose all your rights to share in family
property or spousal support.
Canada Pension Plan (CPP) credits are a special
category of property. Once you and your spouse are separated,
and if you meet other basic requirements, you or your spouse
can fill in a form to ask the CPP to divide equally the
CPP credits you both earned while you were married. The
Quebec Pension Plan (QPP) also allows you to split your
pension credits.
Your local Canada Pension Plan office has pamphlets that tell you how to do
this.
For more information on dividing property, please consult a lawyer. <To
Top>
Some
important words about family violence
“
Family violence” is a term that includes many different
forms of physical or psychological abuse or neglect. It can be
experienced by adults or children in a family.
Many forms of family violence are crimes, including:
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physical
abuse (such as hitting, punching, kicking, burning, cutting,
stabbing, forcibly confining or shooting); |
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sexual
abuse (such as any unwanted sexual touching or sexual activity
and any sexual conduct with children) |
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some
forms of psychological abuse (such as threatening violence,
destroying property, stalking), |
| · |
financial
abuse (such as taking a pay cheque, failing to provide the
necessaries of life). |
Other forms of family violence are not crimes but are often signs that violence
will get worse (such as yelling, humiliating, controlling movements).
Family violence can have serious - and sometimes fatal - consequences for victims
and those that witness the violence.
If your spouse physically or psychologically abused you or your children, your
family's future safety becomes of primary concern. There are many people and
organizations available to help you in this situation, such as lawyers, social
workers, counsellors, support groups or your local shelter or transition house.
Traditional mediation or counselling with your spouse may not be appropriate
in these circumstances. However, in some provinces or territories, specialized
counselling procedures have been developed to support couples when there are
concerns about violence. Working together doesn't always mean sitting in the
same room. <To Top>
What if my former spouse is not obeying
the court order or divorce judgment?
Your divorce judgment may include court orders dealing with parenting, child
support and spousal support. Both parents must obey these orders. When one
parent does not, the other parent can take action. Here are two examples.
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When
you are scheduled to see your child but your former spouse
will not allow it, you can go back to court to ask for help.
A judge may set out a very specific schedule for access or
grant extra time to make up for the visits you missed. You
could also ask the judge to change the parenting arrangements. |
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When
your spouse is supposed to pay child or spousal support under
a court order, but is not paying, enforcement offices will
help you collect the money. All provinces and territories have
these offices. |
To find
out how you can get help dealing with these situations, get in touch
with your local court or family law information office, the support
enforcement program in your province or territory, or a lawyer.
How can I get a court order changed?
The divorce judgment legally ends your marriage and that cannot be changed.
But sometimes you may need to change other parts of the judgment, such as the
parenting arrangements for the child, or child or spousal support. You may
ask a judge to change an order for custody or access when there has been a
significant change in the condition, means, needs or other circumstances of
the child and/or yourself or the other parent since the last order was made.
You may ask a judge to change an order for child support if:
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the
special expenses of the child change; |
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your
income or your former spouse's income changes; and/or |
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there
are other significant changes in your circumstances or those
of your
former spouse or the children. In some cases, you may also
change a spousal support order. |
If you
cannot agree, you can go back to court, present your case and ask
a judge to make a new order. <To
Top>
Where
can I get more information?
There
are many professional people, organizations and other sources that
can help you or provide more information:
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A
family law lawyer. |
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An
information centre specializing in family justice. |
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A
parent education course for separating parents. |
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Duty
counsel at a legal aid office. |
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A
community legal clinic. |
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A
university law school with a student-run legal information service. |
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A
public legal education and information organization. |
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A
law society or bar association referral service for a lawyer. |
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A
mediator, social worker or counsellor. |
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An
emergency shelter. |
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A
divorce support or self-help group. |
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Relevant
library books and videos. |
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A
multicultural community organization. |
The yellow
pages, white pages or blue pages in your telephone book have listings
for many of these resources. A librarian at your public library may
also be able to help you. <To
Top>
Note:
Divorce Q & A has been extracted and summarized from “Divorce
Law Questions and Answers”. Department of Justice Canada;
Ottawa, 1986. Full text is available on the internet at: http://canada.justice.gc.ca/eng/pi/pad-rpad/res/divorce/divorce.pdf
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