Canada’s Divorce Law

Over the last two decades, Canada’s family law has undergone significant and regular modifications. In practice, many couples today live together or separately outside of their marriage. Furthermore, many children now live with stepparents or single parents. Once again, more women work both within and outside the home. Divorce law is an important component of family law in Canada (Deech 3). This study largely examines the history of divorce legislation in Canada. It also highlights some of the factors that lead to the country’s continuous growth in divorce rates.  Accordingly, the paper agrees with the general proposition regarding the relationship between the divorce rate and the divorce law.

 The family law continues having a tremendous impact on the Canadians growing numbers as every year; more people experience separation or divorce. Currently, about 40% of marriages end up in divorce in Canada. The literature of social science is full of evidence that relates to some of the negative impacts that the divorce has on other family members including the children’s emotional well-being. In the same way, the separation and divorce also cause some well-known financial damages to the affected families. Notably, the first federal Act of Divorce was passed in 1968 (Lipson 52). As a consequence, society is becoming more tolerant of remarriage and separation. The affected divorce law by the Divorce Act of 1985 is making easy remarriages and separation through major reforms (Douglas 29).

The Divorce Law History in Canada

Canada had no federal law before 1968 (Abernathy and Arcus 4). In Quebec and Newfoundland, where the provincial legislation was lacking, individuals had to seek the private Act of Parliament’s passage to end their marriages. Again, referencing the 1857 English Matrimonial Causes Act incorporated the provincial law in most other jurisdictions in Canada. This Act allowed a wife to obtain a divorce on the grounds of her husband’s rape, adultery, bigamy, or bestiality among others. In the same way, the husband can file a divorce against his wife on the grounds of adultery and so on. However, some of the acts of provincial divorce continued to be effective until 1968 (Pearl 77). Remember, the Divorce Act was enacted by the parliament in 1968 (Robertson 21).

According to Abernathy and Arcus (6), the concept of the permanent marriage breakdown was introduced by the Divorce Act of 1968 as a ground for divorce. However, the fault-based grounds for divorce were retained, the most important of which were the cruelty, adultery, as well as the desertion. There was a lot of controversy for the move away from grounds for divorce that is fault-based. The combination of the grounds of fault and no-fault was continued in the 1985 Divorce Act. This change was a recognition that can sometimes be terminated without the cause of breakdown being a matrimonial offense. Here, the reliance on allegations that are a fault in the proceedings that are fault can prolong and exacerbate what is already a potentially harmful process that is both expensive and unpleasant (Deech 4). In order to spare some couples such process that is painful, the legislatures decided to broaden the grounds for divorce for the inclusion of one no-fault ground.

According to Robertson (44), the husbands and wives were also able to access the grounds for divorce that was set out in the Divorce Act in 1968. In effect, the double standard that was existing under the Act of Matrimonial Causes was removed. Various grounds for seeking a divorce was listed in sections 3 and 4. In section 3 of the Act, the grounds set out included rape, adultery, as well as other sexual offenses like the act of homosexuality, mental or physical cruelty, and bigamy. In the same way, section 4 of the Act set out some grounds that apply only if the parties involved have been living apart or separate, and the marriage was permanently broken based on some specified factors. These factors may include the respondent of the spouse having been imprisoned for more than two years. The divorce can also be granted because the spouse of the defendant deserted or disappeared from the petitioner, being a drug or an alcoholic addict, or if the spouse failed in consummating the marriage (Veitch 29).

It could not be possible to grant divorce decrees under the legislation of 1968 unless there was a trial held before a judge (Pearl 84). The judge has to be satisfied on some conditions. For example, the parties involved in the case must not have colluded with each other. In other words, they must not have conspired with the intention of misleading the court. There must also be grounds to prove that the parties consented for a divorce. Practically, family law is a divided legislative responsibility area in Canada. Even though the field of divorce is reserved by the Constitution Act of 1867, the jurisdiction is granted concerning the civil and property rights to the provincial legislatures. In this case, the parliament is provided with the exclusive jurisdiction for legislation in substantive divorce law area, which involves matters of corollary like the custody and support (Lipson 69).

In the area of family law, the provincial legislation helps in covering matters that relate to the separation of unmarried or married couples. It also includes custody and support in cases that involve the division of the property, no seeking of divorce, support and other obligation’s enforcement, and the protection of child among others (Deech 8). There is a development of most reform initiatives through the efforts of the coordinated federal-provincial-territory because of the family law jurisdiction’s overlapping nature. However, the statutes of the provincial family law across the country have significant differences (Abernathy and Arcus 7).

The Canada’s Law Reform Commission in its influential report about the law of household in 1976 gave some recommendations. Some of these recommendations aimed at reducing the traditional adversarial approaches’ hostility to divorce. In effect, it was also to promote resolutions that are more constructive of the disputes of the family on separation. Here, the marriage breakdown was the only ground for divorce in Canada (Veitch 31). This law further gave recommendations of the establishment of the Unified Family Courts across the country for granting the exclusive jurisdiction over the issues of the family law (Walton 25). There has only been a partial following of the final recommendation with the Unified Family Courts creation for some cities in Canada. In the same way, the Divorce Act of 1985 resulted in the partial removal of the component that is faulty from the actions of divorce. As a consequence, it also results in the creation of a marriage breakdown (ground for divorce), which is easily established by the provision of either three fault-based criteria such as mental cruelty, adultery, or physical cruelty, or the separation for a period exceeding one year (Douglas 33).

In summary, the first federal Act of Divorce was passed I 1968. In effect, the concept of the permanent breakdown was introduced as a ground for divorce. Subsequently, in 1976 there was a recommendation of the commission report about the law reform on family law. In this case, the breakdown of marriage was seen as the sole ground for divorce. Again, the Divorce Act was passed in 1985 that reduces the required separation period to one year for meeting the ground for divorce as a result of the marriage breakdown. The divorce act evaluation (phase II) was passed in 1990 by the department of justice. It concluded that the adversarial ground for the proceedings of the divorce had been reduced by the no-fault ground for divorce that was introduced in 1985. The public discussion paper about the custody and access that was created in 1993 and was released by the justice department also aimed at coming up with the favorable marriage laws in Canada. For example, Canada’s supreme court succeeded to handle the Young versus Young decision on the access parents’ rights. The single motion of members of the liberal MP Beryl Gaffney supported the elimination of the support of support be included in the income of recipients that the house of commons passed in 1994. In the following year, 1995, the law committee of the provincial, federal, and territorial reported and recommended on the free support of the child. Here, there was also a recommendation of the guidelines of the child support. In the same year, a Reform MP, Daphne Jennings introduced a private bill of Member (bill C-232) which was to amend the Act of Divorce for the facilitation of the custody and the applications of access by the grandparents. However, the standing committee of on legal affairs and justice of the house of commons studied and defeated the bill.

The year 1996 resulted in the introduction of the new child support package’s federal budget announcement. This statement included the guidelines of the federal support of the child. It also aimed to eliminate the mechanism of deduction/ inclusion for the assistance of the child, as well as the measures of enforcement and the working income supplement’s enhancement of the Child Tax Benefit. The Act for amending the divorce was introduced in the bill C-41 of 1997. This bill also included the Act of the agreement enforcement assistance as well as the family orders, as well as the pension and attachment diversion Act (Snell 11). It came into force on 1 May 1997 after receiving a Royal Assent on 19 February 1997. December 1998 marked the tabling of the special joint committee report on child access and custody. This procedure was carried out for the sake of the children. In May 1999, the government released a response to the select committee report on child access and custody in an attempt to strategize for reform. The report about the implementation of the guidelines of the federal child support was released by the justice of Canada in 2002. In 2008, the guidelines of the spousal support advisory were issued after thorough consultation (Snell 18).

The Reason for the Continues Rise in the Divorce Rate

In Canada, the rate of divorce has significantly increased since the 1960s. However, the years that follow the 1969 Act of divorce resulted in the trebling of the number of divorce cases (Douglas 37). Even though the rate of divorce has been declining since 2005, its rate has had a steady increase since the 1970s. Several factors are contributing to the ever rise of the rate of divorce in Canada. Some of the reasons include the economic factors, changing roles of the gender, social policy, as well as the new right (Schlesinger, Benjamin 175).

The changes in the social policy present one of the factors explaining the rise in the rate of divorce in the 1969 and early 1970s. This act resulted in the extension of the divorce grounds to what is known as the “irretrievable breakdown.” Here, even only one partner was able to end the marriage through divorce. However, there was an already rise in the rate if divorce even before the enactment of the law (Schlesinger 182).

Again, some women find it necessary to divorce due to the new right that claims the benefits of the generous welfare for single mothers. In most cases, the child goes with the mother if the divorce occurs within a family. As a consequence, the mother of the child finds it hard to find full-time job. Therefore, benefits become an essential link in trying to explain the chain of an increase in divorce. Moreover, these new rights would also be seeing the rise in the rate of divorce as a sign of wider decline in moral.

Economic factors are another reason contributing to the increase in the rate of divorce. In Canada, there is an increase I inequality thus the lower social classes are receiving less pay in comparison to the ever-rising costs of living (bill/ mortgages). For this reason, the marriage partners are now forced to do work for pay to get by, which in turn put a lot of strain on marriages. This scenario contributes to a lot of cases of divorce. In this respect, the rate of divorce appears higher among the low-income families.

According to many commentators, the women’s changing position in society plays a significant role for the understating of the increase in the rate of divorce. Today, most women are in employment meaning that they can easily survive without husbands. For this reason, they can end any marriage that is not satisfactory. Moreover, there has been a decline in the traditional and religious values in Canada hence contributing to the rise in the number of cases of divorce. In fact, the social stigma that is attached to divorce is becoming less. In this case, people are free to choose whether they should continue staying in a marriage or get divorced. This change is a reflection of the decline in the social structure’s importance and the increase in the consumer culture.

Link Between the Rate of Divorce and Divorce Law

I wholeheartedly agree with the general proposition that regards the connection between the rate of divorce and the divorce law. For example, the divorce act of 1985 resulted in the change of rules by which the jurisdiction could be assumed by the court in light of dealing with a petition for divorce. The Act’s section 3 to 6 defines some of the circumstances in which a provincial court will have the jurisdiction for hearing any petition for divorce. In other words, the court is provided with the jurisdiction if both the husband and wife are the ordinary residents of the province in which the proceedings commence. Note that the court does not hear any subsequent variation that grants an original judgment of divorce. As already mentioned, the Act of 1985 resulted in significant changes to the grounds that are available for divorce (Walton 26).

Again, this proposition of law increases the rate of divorce in more other ways. For example, divorce can be granted because there is a marriage breakdown. Proof can establish this scenario that the husband and wife have lived apart and separated for more than one year. Another test for the breakdown of marriage is the fact that the respondent spouse has committed either mental or physical cruelty or adultery. Here, the continued cohabitation is rendered impossible. The time has to be calculated from the date that the spouses started living apart and separate in a scenario where the ground is a breakdown of the marriage. Even though the divorce application can be made within one year, it can only be granted after the year runs out. For this reason, many spouses consider opting for divorce in case of such separations. In effect, contributing to the rise in the rate of cases of divorce in Canada.

The Canada’s laws also provide for the use of mediation as a method to resolve some of the disputes within a family without having to resort to legislation, or it can also serve as one of the processes of the legislation. Sometimes, the court becomes affiliated to the means of mediation; however, it may be private. Often, the private counsel represents the parties that are involved in the process of mediation throughout the session. The mediator’s professional qualifications have a wide variation, although there is a development of a system of national accreditation through the Family Mediation Canada’s auspices. According to the advocates of the mediation, the resolving disputes is essential to people as they quickly settle their matrimonial affairs more easily compared to the litigation. As a result, the process also contributes to the ever-rising of the cases of divorce within the country (Walton 29).

Conclusion

This paper successfully explored the history of divorce in Canada. Besides, it has explained some of the reasons that contribute to the rise in the divorce, as well as the link between the rate of divorce and divorce law. It is observed that the amendments in the family law have made it easier for spouses to divorce more without difficulty. Now, many couples live together outside their marriage or separate. Besides, a lot of children currently live with step-parents or single parents. Again, more women work within and outside their homes. In Canada, the divorce law acts as one of the crucial family law components. Some of the major contributors of divorce, according to the paper are seen to be cruelty (both mental and physical), adultery, economic factors, among others.

Works Cited

Abernathy, Thomas J., and Margaret E. Arcus. “The Law and Divorce in Canada.” The Family Coordinator, vol. 26, no. 4, 1977, pp. 4-9. JSTOR, doi:10.2307/581764.

Deech, Ruth L. “COMPARATIVE APPROACHES TO DIVORCE: CANADA AND ENGLAND.” The Modern Law Review, vol. 35, no. 2, 1972, pp. 3-8. Wiley-Blackwell, doi:10.1111/j.1468-2230. 1972.tb01322. x.

Douglas, Kristen. Divorce Law in Canada. [Ottawa], Parliamentary Information and Research Service, 2008.

Lipson, Norman. Guide to Marriage, Divorce and Family Law in Canada. Toronto, Coles, 1980.

Pearl, David. “I Divorce You. I Divorce You. I Divorce You.”.“ The Cambridge Law Journal, vol. 29, no. 01, 1971, pp. 60-99. Cambridge University Press (CUP), doi:10.1017/s0008197300089303.

Robertson, Gerald B. Mental Disability and The Law in Canada. Scarborough, Ont., Carswell, 1994.

Schlesinger, Benjamin. ”Children and Divorce in Canada.“ Journal of Divorce, vol. 1, no. 2, 1978, pp. 175-182. The Haworth Press, doi:10.1300/j279v01n02_08.

Snell, James G. In the Shadow of The Law. Toronto, University of Toronto Press, 2016.

Veitch, Edward. ”Divorce Under the Divorce Act of Canada, 1968-1978.“ Journal of Divorce, vol. 2, no. 3, 1979, pp. 29-31. The Haworth Press, doi:10.1300/j279v02n03_07.

Walton, F. P. ”Divorce in England, The United States and Canada.“ The Yale Law Journal, vol. 22, no. 7, 1993, pp. 25-31. JSTOR, doi:10.2307/784319.