Canadian Divorce Laws

Jodee Redmond
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Canadian divorce laws have gone through a number of changes. At one time, it was only possible to obtain a divorce in certain provinces. However, it is now much easier to get divorced in Canada.

History of Canadian Divorce Laws

If you are thinking about getting a divorce in Canada, it may be helpful to understand the history of the country's divorce laws.

Divorce Laws in Canada Prior to World War II

Before the Second World War, divorce was not a common occurrence in Canadian society. Before 1925, each individual province had jurisdiction over divorce. The laws varied depending on which part of the country one lived in and divorce was not even a legal option in some regions. Divorce courts were only operating in British Columbia, New Brunswick, and Nova Scotia before World War I.

If you wished to get a divorce but lived in a province where there was no such legal recourse, you would have few options. The parliament had the power to grant a statutory divorce, but this process was quite expensive. People who were not wealthy could separate (or one partner could desert the family) with no legal dissolution of the marriage. Some people crossed the border into the United States to seek a divorce.

The federal government took over jurisdiction over divorce in 1925. At that point, a divorce could be sought on the grounds of adultery.

Reform of Canadian Divorce Laws

Canadian divorce laws were changed in 1968. Under the new law, a divorce could be granted on the grounds that the marriage had broken down. This meant that the couple could be divorced after a three-year separation. The other grounds for divorce were infidelity and cruelty.

The Divorce Act, 1985

Divorce laws in Canada were again changed in 1985. Under the provisions of the Divorce Act, a couple could be divorced after being separated for one year. Only one of the parties was required to give his or her consent for the divorce to be granted. As a result of the new, "no-fault divorce" legislation, divorces in Canada increased. In 1987, more than 96,0000 divorces were granted nationwide.

Breakdown of the Marriage

In Canada, the only ground for divorce is the breakdown of the marriage. Section 8(2) of the Divorce Act defines "breakdown of the marriage" as follows:

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Other Provisions of the Divorce Act

Other sections of the Divorce Act address the issues of spousal support and child support. Custody and access are also dealt with by this piece of legislation. As the Divorce Act is a federal law, these issues are decided in the same manner nationwide. Issues arising with respect to the division of marital property fall under provincial legislation. The rules may vary depending on the province.

The Divorce Act also allows a couple to be divorced and have issues pertaining to spousal or child support, custody, or access issues to be decided separately. This would allow one or both parties to remarry, if they wish, without having to have all the outstanding issues settled first.

With the changes to Canadian divorce laws, it is now relatively easy to legally dissolve a marriage. While the legal part of divorce is now easier to navigate, however, the financial and emotional effects of divorce are still difficult to deal with.

Canadian Divorce Laws