The Divorce Act
Navigating the often complex terrain of divorce can be a daunting task. The Divorce Act (DA) in Canada provides the legal framework for divorce proceedings, but understanding the DA's provisions can be challenging. This post aims to provide information with respect to some of the key sections of the DA, helping you to understand your legal rights and obligations during a divorce.
Proceedings Under the Divorce Act
The DA recognizes three types of proceedings: divorce proceedings, corollary relief proceedings, and variation proceedings.
A divorce proceeding is initiated when one or both spouses seek a divorce, either alone or along with orders for child or spousal support, or parenting orders.
Meanwhile, a corollary relief proceeding is initiated when one or both former spouses seek child support, spousal support, or parenting orders.
Variation proceedings, on the other hand, are initiated to modify an existing order for child support, spousal support, or parenting orders.
Jurisdiction
For a court in a province to hear and determine a divorce proceeding, either spouse must have been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.
Duties on Parties
From March 1, 2021, the DA imposes several new duties on the parties involved in a divorce case. For example, any person with parenting time, decision-making responsibility, or a contact order must act in the best interests of the child.
One significant change is the requirement for parties to a proceeding to try to resolve the matters in dispute through a family dispute resolution process, as far as it is appropriate to do so.
Breakdown of Marriage
The only ground for divorce in Canada is a "breakdown of the marriage". A breakdown can be established once the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, or if one spouse has committed adultery or has been physically or mentally cruel to the other spouse.
Bars to Divorce
The DA lists three obstacles or "bars" to divorce: collusion, lack of reasonable arrangements for the support of the children, and connivance or condonation in cases of adultery.
Motion for Divorce Order
If all the documents are in order and there are no bars to the divorce, the court will sign the draft divorce order and mail it to the parties. The amount of time it takes to receive the divorce order depends on the court's workload.
Once a divorce "takes effect," it has legal effect throughout Canada. Unless special circumstances exist and a court order otherwise, a divorce takes effect on the 31st day after the day on which the order granting the divorce is rendered.
Understanding the DA is crucial during a divorce. It helps parties understand their rights and responsibilities, helping make the process less daunting. As always, it is recommended to seek legal advice to navigate these proceedings.
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