Issues to Consider when Divorcing

When you separate or divorce in Canada, you must consider a number of different issues, which can be broken down into the following broad categories:

  • Property;
  • Child Custody and Access;
  • Child Support; and
  • Spousal Support.

Each of these general categories can then be broken down further. Family law is extremely complex and you should consult with a family lawyer to fully appreciate and understand the many issues applicable in your particular circumstances. A list of Family Law Professionals in your area whom you may wish to consult, is provided in the directory. (Note that listing does not endorse, confirm or represent the expertise or competence of any of the persons listed.)

Once you understand the law and how it applies to your situation, there are many different ways to resolve family law disputes without necessarily having to go to court, including negotiation, mediation, arbitration, and collaborative family law. The dispute resolution method that works best depends on you and your situation.

Grounds for Divorce under the Divorce Act

There are two ways through which someone can demonstrate to a court that there has been a breakdown of the marriage under the Divorce Act:

  1.  The spouse has committed adultery, or treated their partner with the type of physical and mental cruelty that makes it intolerable for them to live together; or
  2. They have lived separate and apart for at least 1 year before starting the divorce proceedings.

The first basis for claiming a divorce is less common, especially since cases of adultery or cruelty are usually followed by periods of separation. If an application is brought under a claim of adultery the person with whom the affair took place can be named, and will have have the right to be served materials and respond fully.

When applying for a divorce due to separation, the couple must still be living separate at the time of the application. The calculation of this period allows for attempts at reconciliation that do not exceed 90 days, and circumstances which may not be under the party’s control.

The shift to a no-fault divorce in Canada was described in the Supreme Court of Canada case of Pelech v. Pelech:

38.              Prior to 1968, the granting of a decree of divorce under the various legislative schemes operative throughout Canada was linked to the commission of a matrimonial offence. The 1968 Act consolidated several regimes into a single code and by and large preserved the concept of matrimonial fault as the measure of relief. However, it also introduced in s. 4 the criterion of permanent marriage breakdown as an alternative basis of relief. MacKeigan C.J. summarized the shift in attitude signalled by the new legislation in Connelly v. Connelly (1974), 47 D.L.R. (3d) 535 (N.S.C.A.), at p. 539:

I respectfully agree with this implied recognition that the Canadian Divorce Act of 1968, 1967‑68 (Can.), c. 24, by making marriage breakdown the primary practical basis for divorce, has removed “blame” as a determining factor in maintenance. No longer is it necessary, if it ever was necessary, which may be doubted, to balance and assess relative degrees of “guilt”. Certainly there is now no basis in the Act for applying a moralistic appraisal process to breakdown cases in general.

Bars to Divorce under the Divorce Act

There are 3 bars to divorce under the Divorce Act:

  1. Collusion between the parties;
  2. Failure to make reasonable arrangements to support the children; and,
  3. Where an applicant has condoned or connived an act of adultery, when that act is the basis for applying for divorce.

Collusion is defined in the Act as “an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice.” Justice Dunn of the Ontario Superior Court of Justice stated in Kaur v. Brar,

[11]      It is clear from cases such as McKenzie v. McKenzie, (1982), 26 R.F.L. (2d) 310 that a marriage entered into for the purpose of giving a party immigration status does not, by itself, invalidate the marriage…
[12]      Collusion in divorce applications has been interpreted by the Courts to include the dissolution of marriages that are a part of an immigration scheme.  If a trial judge makes an affirmative finding of collusion, then the petition for divorce must be refused.  Schuett v. Schuett (1970), 3 O.R. 206 (Ont. C.A.), McKenzie v. McKenzie(1982), 26 R.F.L. (2d) 310 (Ont. C.A.).  While these cases were decided pursuant to the predecessor of the current legislation, s.11 of the Divorce Act now places a positive duty on the Court to satisfy itself that there has been no collusion before allowing an application for divorce.

Reasonable arrangements for the support of the children can be put into writing through a separation agreement or court order, but this is not always necessary. A lawyer in your jurisdiction can assist in drafting this kind of agreement.

The interpretation of conniving an act of adultery is derived from the English case of Churchman v Churchman [1945] 2 All ER 190, where the party has a “corrupt intention of promoting or encouraging either the initiation or the continuance of the wife’s adultery.” Lord Merriman P. explained this further, stating,

It is the essence of connivance that it precedes the event and generally speaking the material event is the inception of the adultery and not its reputation although connivance at the continuous of an adulterous association may show that the party conniving must be taken to have done so at the first.
Justice Laidlaw summarized the principles of connivance in Maddock v. Maddock, [1958] O.R. 810:
  1. Connivance may consist of any act done with corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery.
  2. Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the other spouse.
  3. The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.
  4. Acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance.
  5. “The Court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances and be led to a conclusion contrary to the justice of the case”: (from Churchman v. Churchman, [1945] P. 44, at p. 52)
  6. There is a presumption of law against the existence of connivance and the Court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration.

Overview of Documents Needed in a Family Law File

Family law files involve a lot of preparation, and there’s plenty of information exchanged between the sides.

Having the proper documentation is absolutely essential to resolving the matter, especially if a case appears as if it is going to court. Knowing what documents you require beforehand is helpful, as it can take a lot of time to gather the necessary information.  Original documents may be required in some instances, although copies may be sufficient in others.

If parties are represented, the lawyers will typically keep the originals of many of these documents. They are required to care for these documents properly, and will return them at the conclusion of the file or the termination of the retainer agreement.

One important exception to this is the piece of identification you provide when you initially retain a lawyer, which will be copied and returned to you immediately. Identification requirements are quite routine, and should not be taken as a sign that the lawyer does not trust you or thinks you are pretending to be someone else.

 

Click here to download or print this file.

 

Disclaimer: Although the checklist is very detailed, not all of the disclosure items listed will be necessary or relevant to your case. Furthermore, the checklist is not comprehensive and you may be required (or requested) to provide additional documentation that is not listed.

Any private information that you provide or receive in connection with your case should be used only for the purposes of resolving your family law case, and for no other purpose. Improper use of another person’s financial information may have legal consequences. This list has been compiled by My Support Calculator for informational purposes only and does not constitute legal advice. You should always defer to a lawyer for legal advice.

Additional Documentation to Provide to Your Lawyer: Consider providing your lawyer with the additional information found in here. Ontario residents may also want to consider completing a draft Financial Statement: Draft 13.1 Financial Statement with Instructions (ON only)

Overview of Information Required for Your Family Law Case

One of the best ways that you can save money and keep your legal fees down is to be properly prepared. Family law cases can be complex and require a lot of information.

There are lots of documents required when planning your family law file. There are also lots of questions and details that are helpful to provide at the initial stage of your file.

In addition to obvious questions such as details about you, your spouse, your relationship, and your children, the court or lawyers involved will also want to know employment information about you and your partner, detailed information about your assets and liabilities, and information about the matrimonial home.

Bringing several pieces of identification for a meeting with a lawyer, and a chequebook, is usually a good idea. Identification requirements are common across Canada, and should not be considered an insult or a sign that the lawyer mistrusts you. A cheque may be needed to provide a retainer to establish the lawyer-client relationship.

Filling out the following document will save you a considerable amount of time at a lawyer’s office, and should help the lawyer prepare for your file.

Click here to download or print this file. 

Documents Required:
See list of documents to provide to your lawyer: Basic Documents Required For Your Family Law Case.
For Ontario residents, also complete a draft Financial Statement: Draft 13.1 Financial Statement with Instructions (ON only).

Terminating Support for Adult Children

The decision in Diment v. Diment by Justice Midwinter of the Manitoba Court of Queen’s Bench deals with a motion by a father to terminate child support for an adult child, and a cross motion by a mother to vary the proportionate sharing of the child’s post secondary education and dental expenses.

The child attended a full-time nursing program until April, 2012. During the summer of 2012 (Between April and August), the child was employed, and earned approximately $6,400. She continued to reside with the mother during that time.  The child resumed full time attendance at school in September, 2012.

The father moved for an order terminating his child support obligations for May – September, 2012, when the child was not attending school and was employed. He took the position that the child should use her earnings from the summer job to contribute to her expenses. The father agreed that the child resumed being a child of the marriage in September, 2012, but claimed that only Table support was payable commencing in September, 2012. Finally, the father sought an order terminating child support for the child commencing December, 2013, pursuant to a prior agreement between the parties. The mother took the position that the father should pay child support for summer, 2012, and that he should pay his proportionate share of the child’s section 7 expenses while the child was attending school in 2013.

The judge found that it was reasonable to expect the child to contribute some of her earnings toward her expenses, however, he noted the Manitoba Court of Appeal’s comments in Rebenchuk v. Rebernchuk, that

…. to reduce or eliminate parental support because the child took several breaks to work and save money, or opted for part-time studies, would penalize her efforts to achieve her goals with limited means.

In determining the appropriate level of child support for the adult child attending a program of education, the judge cited the framework set out by the Court of Appeal in Rebenchuk:

[20]  Based on Rebenchuk, there are three steps to consider.

1.  Does the person for whom support is sought a child of the marriage?
2.  Is the table amount in the guidelines inappropriate? If not, then the guidelines should be awarded.
3.  If the answer to step two is yes, what level of support is appropriate?

The judge found that steps 1 and 2 of the Rebenchuk inquiry were met. He noted that the child remained a child of the marriage, and that:

 Once the daughter returns to full-time attendance at her program, and for the full term of 2012, there will be a requirement for support over and above the table amounts by virtue of tuition. Accordingly, I am of the view that the second step in the case of Rebenchuk has been met.

Moving on to step 3 of the inquiry, the judge made the following findings in determining the appropriate level of support:

  • If the parents’ marriage remained intact they would have decided to support their daughter in her ultimate aim of receiving a practical nursing certificate;
  • The degree to which the child is able to earn an income to contribute to her own education is not entirely clear, and there was no evidence that the child still had access to her previous employment;
  • The child’s living expenses were reasonable since she was living at home with her mother and was being supported;
  • The child’s career plans appeared reasonable;
  • The child would likely benefit from her program of study, in that completion of same would hopefully result in a career and full-time employment
  • It was unclear whether part-time employment was available to the child while she studied full-time; and
  • It was unclear whether the child was eligible for student loans or other financial assistance.

On the basis of the findings above, the judge ordered the father to pay Table child support for the period between April and August, 2012. The father’s motion to terminate Table child support as of December 31, 2012 was granted, on consent, however, the father was ordered to contribute his proportionate share toward the child’s 2013 tuition expenses and any dental expenses as they arise.

The judge in Diment made a finding that the child continued to be a child of the marriage, notwithstanding that not attending a full-time program of education. His decision is consistent with section 1(1) of the Divorce Act, which defines a “child of the marriage” as a child who is “… (b)  the age of majority or over … but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life.”

It is noteworthy that child support for adult children of unmarried spouses is subject to the definition of “child of the marriage” in the various provincial family law statutes, and the definitions are not always consistent with the Divorce Act.  For example, section 31 of Ontario’s Family Law Act provides that a parent is obligated to child support for a child over the age of majority only if that child “is enrolled in a full time course of education.”

Although provincial legislation in Ontario clearly treats children of unmarried spouses differently than children of married spouses, no steps have been taken to amend the legislation to date. Litigants with adult children should therefore be mindful of the legislation pursuant to which child support is being requested and/or ordered in their case.

New Divorce Application Practice Direction in B.C.

A new Practice Direction was released in B.C. for divorce applications, providing guidance on the preparation of Final Orders in Undefended Family Law Cases under Rule 10-10, and Summary Trials under Rule 11-3:
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New B.C. Practice Direction on Appeals from Provincial Court

A new Practice Direction is available for appeals from the Provincial Court under Section 233 of the B.C. Family Law Act. Rule 18-3 of the Supreme Court Family Rules states,

Directions

(3)  A notice of appeal must include

(a) the standard set of directions, in the form directed by the Chief Justice, governing the conduct of the appeal…

The new directions for these circumstances are as follows:

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Who is a “child of the marriage”?

One of the most contentious issues around child support is defining who is a child of the marriage, and therefore entitled to be supported.

The Divorce Act defines a “child of the marriage” as a child of two spouses or former spouses, who is under the age of majority (and under the parents’ charge), or who is the age of majority or over and still under the parents’ charge because of illness, disability or other cause.

Because the age of majority varies across jurisdictions in Canada, the definition of a “child of the marriage” will depend on the province in which the child is living. The age of majority is 18 years of age in Alberta, Manitoba, New Brunswick, Ontario, P.E.I., Quebec and Saskatchewan. For all other provinces, the age of majority is 19 years of age.

It also means that older children who continue their education beyond high school, and who continue to rely on their parents, can still be considered children of the marriage, entitled to support.

Furthermore, a child of the marriage does not have to be biologically related to both parents; it will suffice if one or both parents stand “in the place of a parent” (sometimes referred to as in loco parentis). In other words, an adopted or step parent will, in most cases, have an obligation to support a child.

The leading case for step-parents is the Supreme Court of Canada case in Chartier v. Chartier, where the court looked at the actions and intentions of parents, and stated:

38 …The appellant argued that the test for whether or not a person stands in the place of a parent should be determined exclusively from the perspective of the child.  I cannot accept this test.  In many cases, a child will be very young and it will be difficult to determine whether that child considers the person as a parental figure.  Further, an older child may resent his or her step-parent and reject the authority of that person as a parent, even though, objectively, that person effectively provides for the child and stands in the place of a parent.  The opinion of the child regarding the relationship with the step-parent is important, but it constitutes only one of many factors to be considered.  In particular, attention must be given to the representations of the step-parent, independently of the child’s response.

The definition of in loco parentis has been applied quite broadly by courts. In Gardiner v. Gardiner the Supreme Court of Nova Scotia held that a woman who had no intention of adopting children but treated them kindly while living in the same house as their father stood in the place of a parent.