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First enacted: S.C. 1968-69, c. 24 Repealed and re-enacted: S.C. 1986, c. 4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 Nova Scotia from 1758, in New Brunswick from 1791, and in Prince Edward Island from 1833);^[2][3]
• In the three prairie provinces and the northern territories, divorce was available under the English Matrimonial Causes Act 1857,^[4] which was incorporated into their local law in 1870 under the terms of the Rupert's Land Act 1868;^[5][6][7]
• In 1867, the Colony of British Columbia had declared that the laws of England, as they stood at November 19, 1858, were to apply "so far as they are not from local circumstances inapplicable",^[8] and this declaration was later held to have included the 1857 UK Act as it stood at that time;^[9] Until 1937, there was no right of appeal from a BC divorce proceeding.^[10]
• In Quebec, the Civil Code of Lower Canada declared that "Marriage can only be dissolved by the natural death of one of the parties; while both live it is indissoluble."^[11][12] Newfoundland never enacted a divorce law, and the local courts did not even grant judicial separations until 1948.^[13] The only way for an individual to get divorced in these provinces—as well as in cases where the domicile of the parties was unclear—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, divorce was not available (although several efforts had been made prior to Confederation to bring it about),^[14] and individuals seeking a divorce also had to apply to Parliament for a private bill of divorce. In 1930, Parliament passed the Divorce Act (Ontario), which authorised divorces and annulments to be pursued in the courts of Ontario for Ontario residents according to the law of England as it stood at July 15, 1870 (and thus on the same footing as the prairie provinces and the territories).^[15]

Ontario and Quebec residents could attempt to obtain a divorce in the United States, but the validity of such decrees could be subject to review in the Canadian courts on the issue of domicile.^[16] In 1885, the Supreme Court of Canada ruled that a New York divorce was valid, even though the husband was living in Montreal, as "the burden was on the husband of showing that he had actually changed his domicile animo et de facto".^[17] The consequences where a divorce was not recognized (eg, it was obtained in a divorce mill, such as Reno, Nevada once was) and where one of the parties had already remarried proved to be awkward in certain cases.^[18]

The UK Act provided that a husband could sue on grounds of adultery, but a wife would have to allege adultery together with other grounds.^[19] In 1925, Parliament provided that a wife could sue on grounds of simple adultery.^[20]

In 1930, Parliament extended relief to deserted wives, by providing that, in the provinces where divorce was available, they could pursue proceedings on the grounds of desertion, so long as there had been separation from the husband for at least two years.^[21] In 1963, provision was made for the Senate of Canada to be able to dispose of parliamentary divorce petitions by way of resolution instead of by a private Act.^[22]

Reform of the law

In 1968, Parliament passed its first Divorce Act, which established a uniform divorce law across Canada.^[23] In addition to bringing about uniformity, the 1968 Act:

• placed both spouses on an equal footing in pursuing divorce, and broadened the grounds from adultery, to include mental or physical cruelty, desertion, separation for three years or having an imprisoned spouse,^[24][25] and
• declared that "the domicile of a married woman shall be determined as if she were unmarried, and, if she is a minor, as if she had attained her majority",^[26] with one year's residence in the province where the divorce order was sought.^[27]

In 1986, Parliament replaced the Act, which modernized the law of divorce further.^[28] One change made was to eliminate the domicile requirement and to reduce the separation period to one year.

Later amendments

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 Section 15 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.^[29] That Act also amended the Divorce Act to change the meaning of "spouse",^[30] to provide that it means "either of two persons who are married to each other."

When later court proceedings revealed complications arising from the impact of domicile on the validity of same-sex marriages solemnized in Canada,^[31] the Civil Marriage Act was amended in 2013 to provide for divorce to be available to nonresident spouses in the province where the marriage took place.^[32]

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,^[33] 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; though, 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 a spouse the power to file an affidavit with the court if they are experiencing barriers to religious remarriage. If the barrier has not since been removed after the affidavit is sent, section 21.1(3) of the act gives courts 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.”^[34][35]

References

Further reading

• Da Costa, D. Mendes (1969). "The Divorce Act, 1968 and Grounds for Divorce Based upon Matrimonial Fault". Osgoode Hall Law Journal. 7 (2): 111–154. 
• Backhouse, Constance (1986). ""Pure Patriarchy": Nineteenth-Century Canadian Marriage" (PDF). McGill Law Journal. 31 (2): 264–312. 
• Douglas, Kristen (27 March 2001). "Divorce Law in Canada". Library of Parliament. 

External links

• Extracts from the Code of Rules of the Senate of Canada regarding Bills of Divorce published in the Canada Gazette.