Divorce Act

The Divorce Act is a federal Act that deals with the following issues:

1. Custody
2. Child Support
3. Spousal Support
4. Divorce

Only married couples can use the Divorce Act. Common law couples can only use the Family Law Act. If you are married, you can rely on both acts for your case. These Acts provide guidance on what your rights are and are substantially similar to one another, but sometimes there are important differences between the two, and you should choose the Act that suits your case best.

Advantages of Divorce Act

Custody

One of the most significant advantages of the Divorce Act is that it encourages Maximum Contact on Custody issues. This Act says that a child should have maximum contact with both parents in appropriate cases. So for fathers who are looking for shared or 50/50 custody, this Act may assist them better than the Family Law Act, which does not have any provisions for Maximum Contact.

The Canadian government recently even tried to change the Divorce Act to have a presumption that 50/50 custody was suitable in most cases, thereby making it easier for (mostly) fathers to have equal parenting rights. However, that Bill was rejected because lawyers argued that each case is different and should be decided on its own facts.

Enforcing Orders under the Divorce Act

The other advantage of the Divorce Act is that it is a Federal Act meaning it applies across the country. The Family Law Act only applies to BC. So if you have an Order under the Divorce Act in BC and move to another province and want to change or enforce your Order, it is always easier to have the Order under the Divorce Act because other provinces will find your Order easier to enforce or change.

Getting Divorce

You can only obtain a divorce by relying on the Divorce Act. The Family Law Act does not deal with divorce. To get divorced, you will have to:

1. Be separate and apart from your spouse for more than one year. You can live ‘separate and apart’ under the same roof;
2. Prove adultery;
3. Prove that you have been physically or mentally abused and therefore do not have to wait one year (very difficult to do); or
4. Show that the marriage was fraudulent.

What the Divorce Act Does Not Do

The Divorce Act does not deal with property or debt. Even if you are married, you will have to rely on the Family Law Act to deal with those issues. So your case can be decided by the Court relying on both the Divorce Act and the Family Law Act depending on its facts.

The Family Law Act is often more detailed and provides more guidance on spousal support, child support and custody issues so that you can rely on both Acts for these issues.

The Acts and which one to use are complicated areas of family law. For more information or to set up a consultation, please get in touch with us.