Pursuant to s. 3 of the DA, the court can grant a divorce only when at least one of the spouses has been ordinarily resident in the province for at least one year prior to the commencement of the divorce proceeding. Although the courts have tended to be liberal when interpreting “ordinary residence,” mere residence for one year may not be sufficient if the court’s jurisdiction is challenged. In assessing ordinary residence, the court will look for an intention to continue a regular and customary mode of life in the province (Jadavji v. Jadavji, 2001 BCSC 1027).

Duties of Counsel Under DA, s. 9 and FLA, s. 8

Unless clearly inappropriate, s. 9 of the DA imposes an obligation on a lawyer in a divorce proceeding to discuss with the client whether there is a possibility of reconciliation of the spouses, and to inform the client about marriage counselling and guidance facilities that may be available to assist the spouses in reconciling. You must also discuss the advisability of mediating matters relating to support and the care of any children of the marriage.

The Family Law Act contains a similar provision at s. 8, along with a requirement to consider issues of domestic violence.  In particular, the provision requires family dispute resolution professionals (which includes lawyers) to screen for family violence and to assess whether certain dispute resolution processes are appropriate.  As a lawyer, you must advise parties of the processes, services and facilities available to clients to ensure that your client is making informed decisions about the range of options available for resolving family law disputes and to maximize opportunities for early, cooperative settlement in order to reduce the emotional and financial costs of separation.

Grounds for Divorce

The grounds for divorce are set out in s. 8 of the DA. The sole ground is marriage breakdown, which may be established upon proof of one of the following:

  • the spouses have lived separate and apart for at least one year before the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding;
  • the respondent spouse has committed adultery; or
  • the respondent spouse has treated the claimant spouse with such physical or mental cruelty that continued cohabitation is intolerable.

The term “separate and apart” has been interpreted to include circumstances where the parties continue to reside under the same roof following marriage breakdown. This is increasingly commonplace as parties cannot afford to maintain two separate residences pending property division and support agreements or orders.

Adultery can be proven by an admission in affidavits, interrogatories or examinations for discovery of the party said to have committed adultery, by evidence at trial, or by the evidence of other witnesses of circumstances that would lead the court to conclude that adultery had occurred.

Physical or mental cruelty requires proof of acts of a grave and weighty nature, usually by evidence from a physician, psychiatrist or psychologist.

It is unusual for parties to obtain a divorce on the grounds of adultery and cruelty because of the type of proof that is required.  Most wait until they have been separate and apart for a year and obtain the divorce at that point.  Parties may deal with all matters other than divorce prior to the one year time period and the matter of whether there is a divorce or not has no bearing.  If you have a client who wants to go ahead with obtaining a divorce on the grounds of adultery or cruelty, you should provide advice regarding the necessity or utility of using those grounds.

Where the parties have been separated for more than one year, the court has discretion to decline to hear evidence of adultery or cruelty if such would tend to stigmatize a party or be contrary to the best interests of the children, and will grant the divorce on the basis of separation (see, for example, McPhail v. McPhail, 2001 BCCA 250).

Divorce proceedings can be commenced at any time, even immediately after separation, as long as the claimant has ordinarily resided in the province for at least the preceding year.  The actual divorce order will not be granted until the parties have been separated for one year, or meet the other requirements under the DA regarding adultery or cruelty.

The DA imposes a duty on the court to satisfy itself that reasonable arrangements have been made for the support of the children of the marriage (s. 11(1)(b) of the DA) before making a divorce order.  In the absence of proof of reasonable arrangements the court must stay the divorce until such arrangements have been made. The court will not permit parents to ignore or avoid addressing child support issues as child support is the right of the child. If child support cannot be paid or the payor cannot be located or is beyond the reach of the court, that information must be provided to the court and if the judge is satisfied that there is no viable means of pursuing child support, a divorce most likely will be granted.

In appropriate circumstances, it is possible to resolve all corollary and property issues (or, if circumstances do not permit resolution of all issues, at least child support) by way of a separation agreement and then apply for divorce on an uncontested basis.

Community Discussion

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Although it is possible to live separate and apart at the same residence for the purposes of determining the separation date, my understanding is that there has to be a cessation of all of the usual family functions i.e. cooking and eating together, no family gatherings, except many children's birthdays.  At times determining when separation actually takes place can be challenging.  Many individuals equate the end of sexual intimacy with separation, which is ot the case.

Except in cases there is family violence, I do ask about the prospect of reconciliation and advise that I can provide names of counsellors.

Over the course of the years I have found that many former partners wish to enter into their own child support arrangements that donot meet the requirements of section 11(1)(b) of the Divorce Act.  They cannot comprehend that they are not permitted to do so and it is very difficult to get this point across.