The Divorce Act governs when two people can get divorced. It also grants jurisdiction to the Court to address issues related to custody, child support, and spousal support at the time a divorce is sought and on a final basis once a divorce is achieved. The issue of divorce is solely in the authority of Federal Parliament and can only be granted by a Supreme Court Judge. A person may apply for a divorce in a province if one of the spouses is ordinarily a resident in that province prior to the claim for the divorce being made or both spouses consent to that province having jurisdiction. The parties, however, do not have to wait for the grounds of divorce to be crystallized (e.g. one year of separation elapsing) prior to filing the claim for divorce.
A divorce cannot be consented to and an Order of the Court must be obtained. Currently, two people of the opposite sex can get married. As well, two people of the same sex can get married at the current time. Since 2005, any person who is married to another person (both married couples who are part of a same sex relationship or an opposite sex relationship) can get divorced, pursuant to the provisions of the Divorce Act.
The three bases upon which a divorce can be granted are the following:
1) Adultery: A person has had sexual intercourse with another person since their date of marriage without the consent of their spouse;
2) Cruelty: One spouse has treated the other spouse either physically or emotionally in a manner, which renders their continued co-habitation impossible. This conduct must be extreme and outside of normal arguments and contact. Generally one is thinking of extreme emotional and physical abuse when discussing legal cruelty;
3) One year of separation: The parties have lived separate and apart for over one year prior to the divorce being granted. The parties generally will have lived apart for a year prior to getting their divorce. This is usually the time they have been apart but could include times they were living under the same roof if prior to physical separation they had actually started to live separate lives. The Court looks at all the factors to determine this. These include but are not limited to whether parties are still intimate, interacting as a family unit and whether or not they still share finances.
Adultery and cruelty require independent corroboration to be founded. This usually means having a third party or the offending party confirm conduct often in Affidavit form. As what amounts to adultery or cruelty can often be subjective, these grounds are not now often pursued and the most common ground is one-year separation when parties seek divorce.
In the context of granting a divorce, the only bar to granting a divorce after one year separation is that the parties children are not properly cared for financially. This generally requires payment of support in accordance with the Child Support Guidelines and that there be no arrears in support. In this context, it is important that parties acknowledge and maintain their child support obligations if they wish to obtain a divorce.
Under the Divorce Act, once the Court has granted final relief on support or custody and access they can vary the relief by subsequent application on what is called a material change in circumstances. In this context, a material change is anything which had the court know about the facts at the time of the original Order being granted would have lead to a different result. A common example is an increase or decrease in income of the parties, which would lead to variation of child support.
Similarly even for unmarried people operating under the Family Law Act, which is the provincial legislation in British Columbia dealing with asset and debt division, guardianship, child parenting time and child and spousal support, if there is a material change in circumstances, the parties can apply to court for a new Order based on this change.
It should be noted that unmarried people must obtain their relief under the Family Law Act which also contains provisions for child and spousal support to continue after death of a parent by an order against the estate, spousal and child support in unmarried situations, including spousal support for mothers of children who have never lived with the father of a child but who have had a child with the father.
Contact us for a no-charge 20 minute consultation*:
Dubas and Company
email: jdubas@divorcebc.net
605 – 938 Howe Street
Vancouver, BC V6Z 1N9
Tel: 604.697.9107
Fax: 604.697.9108
*20-minute consultations must be in-person at our law offices, if at all possible.