Divorce and Legal Separation Law

There are three types of proceedings under the Divorce Act:

• Divorce Proceedings; and
• Corollary relief proceedings; and
• Variation proceedings

A divorce proceeding is one in which either or both spouses seek a divorce alone or together with a child support order, spousal support order, or custody order. A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

A corollary relief proceeding is one in which either or both former spouses seek a child support order, spousal support order, or a custody order. This allows the parties to divorce at an earlier stage and deal with corollary issues at a later date. A court in a province has jurisdiction to hear and determine a corollary relief proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding or both former spouses accept the jurisdiction of the court.

A variation proceeding is one in which either or both former spouses seek a variation order. A variation order varies, rescinds, or suspends, prospectively or retroactively, a support order or a custody order or any provision thereof. A court in a province has jurisdiction to hear and determine a variation proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding or both former spouses accept the jurisdiction of the court.

A breakdown of the marriage can only be established once the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined and are still living separate and apart at the commencement of the proceeding.

The Divorce Act contains three obstacles or “bars” to divorce.

• First, if the court finds there has been collusion, the court must dismiss the application.
• Second, if the court finds that reasonable arrangements for the support of the children have not been made, the granting of the divorce must be stayed until such arrangements have been made.
• Third, where the divorce is proceeding on a breakdown of the marriage based on adultery and the applicant has condoned or connived in the act or conduct complained of, the application must be dismissed unless in the opinion of the court the public interest would be better served by granting the divorce.