Divorce and Family Dissolution in Canada

• Divorce is more complex than generally believed, with statistics often being misleading.
• In Canada, over one-third of all marriages end in divorce, with higher rates in some provinces and remarriages.
• Cohabitation dissolution rates are significantly higher than marriage dissolution rates.
• Families continue to fulfill essential social functions, despite high divorce and cohabitation rates.
• Family dissolution complicates but does not destroy family life.

Legal Context

• More than one-third of Canadian families experience family dissolution issues.
• Family dissolution is more regulated than family formation.
• The legal system balances different tensions in post-dissolution family law.
• Canada introduced no-fault divorce in the latter half of the 20th century, allowing divorce based on "marriage breakdown" without requiring fault.
• Legal regulations ensure continued parental responsibilities and financial obligations (e.g., child and spousal support) beyond divorce, applicable to both married and cohabiting partners.
• Blended families with children from previous relationships lead to complex caregiving and financial obligations, complicating legal and economic planning.

Historical Development of Divorce Law

• Early divorce law in Canada originated from the English Divorce and Matrimonial Causes Act (1857), which transferred jurisdiction to the Divorce and Matrimonial Causes Court and introduced divorce to English law.
• Many provinces allowed judicial divorce, but Québec and Newfoundland required a private act of the federal Parliament.
• Divorce laws varied by province, making the process cumbersome and expensive, raising concerns about "manufactured" evidence of adultery.
• The Divorce Act of 1968, Canada’s first federal divorce law, established fault-based (e.g., adultery, cruelty) and no-fault divorce grounds (separation of three to five years).
• The Act balanced family preservation with the need to end irreparable marriages amid fears of increased family breakdown.
• The Divorce Act of 1985 repealed the 1968 Act to make divorce proceedings more efficient and accessible and to reduce adversarial elements while increasing reconciliation chances.
• The 1985 Act aimed to provide a more humane resolution, recognized provincial responsibilities, and reduced the no-fault divorce waiting period to one year.
• According to section 3(1), jurisdiction in divorce proceedings requires either spouse to be habitually resident in the province for at least one year immediately before commencing the proceeding.

Bill C-78 (2021)

• Family dissolution causes emotional distress and significant economic consequences, including changes in household income and the need for new caregiving arrangements.
• Historically, religious traditions viewed marriage as indissoluble, which influenced the legal recognition of divorce, remnants of which remain in Canadian family law.
• The law balances supporting families with facilitating dissolution, prioritizing children’s well-being.
• Modern family law accounts for diverse family structures like nuclear, cohabiting, and blended families.
• Future reforms should improve access to divorce, fair division of responsibilities, and legal support for children.

Divorce, Separation, and “Corollary Relief”

• Separation is the period when spouses live apart, while divorce is the legal termination of marriage.
• Corollary relief includes child custody and access, child and spousal support, and division of property.
• These issues require ongoing legal intervention and may lead to post-divorce modifications.
• The chapter covers the legal framework, social and psychological impacts, the legal system's role in addressing family dissolution, and understanding the effects on children.

Social Context

• Family dissolution impacts emotional well-being, financial stability, parent-child relationships, and social identity.
• The law regulates family dissolution due to the state’s interest in protecting children and preventing disputes.
• Divorce rates in Canada show that over one-third of marriages end in divorce, varying by province and higher for remarriages; cohabiting couples have significantly higher dissolution rates.
• Factors contributing to high divorce rates include economic stress, changing societal values, and no-fault divorce laws.

Understanding the Social Context for Spouses

• Julien Payne identifies emotional, economic, and parenting crises experienced by spouses undergoing divorce, which legal mechanisms alone cannot resolve.
• Shelley Day Sclater notes that divorce involves loss but also opportunities for independence, with survival strategies differing based on coping mechanisms.
• Historically, divorce was seen as a moral failing, but modern society views it as a personal loss and transition.
• Gay Kitson & William Holmes found that divorce affects social status and identity, especially for those valuing marriage, and society may still stigmatize divorced individuals.
• Lawyers and policymakers must balance legal efficiency with emotional support, consider courts versus alternative dispute resolution, and ensure fair settlements and custody arrangements.

Understanding the Social Context for Children

• Children experience emotional, financial, and social effects from divorce but can also have positive feelings such as relief from abusive or high-conflict family situations.
• Statistics indicate that many Canadian children experience parental separation or divorce.
• Key concerns include custody and access arrangements, financial support, emotional well-being, and parental conflict.
• Courts prioritize the best interests of the child, focusing on stability, routine, and emotional security, and aiming for minimal disruption.

Final Takeaways

• Divorce is a major life transition affecting spouses, children, and finances.
• Family lawyers and policymakers must balance legal principles with social realities, with a central focus on the best interests of children.
• Future reforms should improve access to divorce, support systems, and fair resolution mechanisms.