The Divorce Act sets out the law about the divorce process for Canadian residents and is applicable in all parts of Canada. To get a divorce in Canada, there must be a breakdown of your marriage. The law says marriage breakdown has occurred if:
- You and your spouse have lived "separate and apart" for one year with the idea that your marriage is over;
- Your spouse has committed adultery (had sexual intercourse with someone else) 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.
A divorce granted by a judge is the only way your marriage will be terminated under the eyes of the law. While separation for one year is grounds for divorce, you still need to go through the legal process to obtain a divorce.
If you are separated but have yet to obtain your divorce, you should take steps to avoid unexpected or unwanted results arising from the automatic operation of law. For example, if you were to pass away before obtaining your divorce, your spouse might retain certain rights to your estate, whether or not he/she is included as a beneficiary under your Will. Your family law lawyer can assist you in taking steps to avoid such unexpected or unwanted consequences.
Individuals who intend to marry or couples who are already married may enter into an agreement in which they agree on their rights and obligations on separation. Marriage contracts can be entered into and are legally enforceable for both same-sex and opposite-sex marriages. The agreement can address issues such as ownership in or division of property and support obligations. However, the agreement cannot include the matrimonial home. Your family law lawyer can assist with explaining all of the legal requirements regarding your separate and family property and other issues to be included in your marriage agreement in order to ensure that it will be enforceable if your relationship ends. It is important to note that a marriage contract minimizes the cost of a divorce as most matters are settled with the marriage contract, this also lowers costs associated with litigating the matter in court.
Couples who cohabited and are now living separate and apart may enter into an agreement as a written record of how they have settled the issues arising from the end of their relationship. The agreement can address issues such as custody and access, division of property, debts and support obligations. Separation agreements are legal contracts that can be enforced by the court and have a serious and long-lasting impact on your rights and obligations. The court also has the power to set aside agreements, where parties concluded agreements that had scant or non-existent financial disclosure as well as situations where one party refused to obtain independent legal advice respecting his or her rights and obligations under the contract. It is therefore essential that you have your lawyer prepare your separation agreement. Spouses cannot have the same lawyer. Each party should retain counsel and obtain independent legal advice so thay are informed of your rights and obligations.
Child support is the right of the child. Upon separation, the parent who does not live primarily with the children has an obligation under the law to pay child support to the other parent. It is customary to apply for support immediately after separation or as part of the divorce application. Even if child support is not sought at first, you can apply if your situation changes and you feel you need the support at a later time. With the introduction of the Child Support Guidelines in 1997, the law on child support became relatively straightforward. In most cases, a table based purely on the income of the support payer determines the appropriate amount of child support.
In addition to monthly child support, a payor parent must pay his/her proportionate share of special and/or extraordinary expenses. "Special Expenses" include university costs such as residence, tuition and books, medical costs such as braces, babysitting or daycare costs, and some but not all extracurricular activities.
There are four issues to spousal support, standing, entitlement, quantum and duration There are numerous factors that affect the amount of support and how long you can receive it. These include the length of time of cohabitation; the functions performed by each spouse during cohabitation; the economic advantages or disadvantages to you arising from the marriage or its breakdown; the economic hardship arising from the breakdown; and your ability to become self-sufficient. Spousal Support Advisory Guidelines or the S.S.A.G.s. are a very real factor in family law today. It is a mathematical formula that produces a range of spousal support depending on the age of the spouses, the incomes, the length of the relationship etc.
Custody is the right to make the important decisions about the care and upbringing of a child. Custody normally includes the physical care, control and upbringing of the child. If one party has custody then that party makes the major decisions for the child. If the parties have joint custody then they make the major decisions together. There are different types of child custody arrangements that can be negotiated with your spouse in order to avoid having all of the decisions made by a court.
The property regime laid out in Part 1 of the Family Law Act is generally referred to as a deferred community property regime. This means that all property acquired during the course of the marriage by either party, with certain exceptions, is deemed on the breakdown of the marriage, to be the property of both parties notwithstanding legal title. The parties share in the growth of the assets (and debts) that accumulated during the marriage. The spouse with the higher Net Family Property owes one-half of the difference to the other party. The matrimonial home is subject to special rules. The value of the matrimonial home is always divided equally, even if it was owned by one party at the beginning of the marriage. A matrimonial home received as an inheritance or gift from a third party during the marriage will not be considered as an allowable exclusion.