Divorce Act (Canada)

Divorce Act
An Act respecting divorce and corollary relief
Citation	R.S.C. 1985, c. 3 (2nd Supp.)
Enacted by	Parliament of Canada
Date assented to	13 February 1986
Date commenced	1 June 1986
Related legislation
First enacted: S.C. 1968-69, c. 24 Repealed and re-enacted: S.C. 1986, c. 4
Keywords
Divorce; Canada

The Divorce Act^[1] is the federal Act that governs divorce in Canada. The Constitution of Canada gives the federal Parliament exclusive jurisdiction to regulate the law of marriage and divorce.

History of divorce law in Canada

There was no uniform federal divorce law in Canada until 1968. Instead, there was a patch-work of divorce laws in the different provinces, depending on the laws in force in each province at the time it joined Confederation:

• In the three Maritime provinces, divorce was governed by laws enacted by the colonial governments prior to Confederation in 1867;

• In the four western provinces and the northern territories, divorce was available under the English Matrimonial Causes Act 1857,^[2] which was incorporated into their local law in 1870 under the principle of the reception of English statute laws in a colony;^[3]

• In Quebec and Newfoundland up to 1968, there was no divorce law. The only way for an individual to get divorced in these provinces was to apply to the federal Parliament for a private bill of divorce. These bills were primarily handled by the Canadian Senate where a special committee would undertake an investigation of a request for a divorce. If the committee found that the request had merit, the marriage would be dissolved by an Act of Parliament.

• In Ontario, prior to 1930 there was no divorce law and individuals seeking a divorce similarly had to apply to Parliament for a private bill of divorce. In 1930, Parliament passed the Divorce Act (Ontario) which authorised divorces in the courts of Ontario for Ontario residents.

In 1968, Parliament passed the first Divorce Act which established a uniform divorce law across Canada.^[4] The 1968 Act widened the reasons for divorce from adultery to include mental or physical cruelty, desertion, separation for three years or having an imprisoned spouse.

In 1986, Parliament passed a new Divorce Act to modernise the law of divorce further.^[5] One change made was to reduce the separation period to one year.

Same-sex divorce

Same-sex marriage began to be available in various provinces from 2003 onwards, following a series of court cases which held that same-sex marriage was required by the equality provision of the Canadian Charter of Rights and Freedoms. Shortly thereafter, the question of same-sex divorce arose. Section 2 of the Divorce Act originally read: "'spouse' means either of a man or woman who are married to each other." This definition of "spouse" meant that the Divorce Act did not provide a means for a same-sex married couple to obtain a divorce. However, a judge in Ontario (in September 2004) and a judge in British Columbia (in June 2005) both agreed that this section of the act was discriminatory and granted divorces to same-sex married couples.

In 2005, Parliament passed the Civil Marriage Act, which made same-sex marriage available throughout Canada.^[6] That Act also amended the Divorce Act to change the meaning of "spouse", to allow for same-sex divorce.^[7] Section 2 of the Divorce Act now defines "spouse" to mean "either of two persons who are married to each other."

Religious divorce

Section 21.1 of the Divorce Act was enacted in 1990, after much lobbying from Jewish women’s groups such as the Canadian Coalition of Jewish Women for the Gett,^[8] as a way of solving the problem of agunah in Canada. This section of the Act puts pressure on a spouse who refuses to grant a religious divorce; it does not give courts the power to actually order the granting of a religious divorce or provide the religious divorce themselves. The section gives the spouse the power to file an affidavit with the court if they are experiencing barriers to religious remarriage. If the barrier his not removed after the affidavit is sent section 21.1(3) of the act gives court the power to dismiss any applications under the Divorce Act filed by the withholding spouse and to “strike out any other pleadings and affidavits filled by that spouse under [the] Act.”^[9][10]

References

External links

• Divorce Act of Canada
• Extracts from the Code of Rules of the Senate of Canada regarding Bills of Divorce published in the Canada Gazette.
• Kristen Douglas, "Divorce Law in Canada," Library of Parliament (Law and Government Division), 2001.