Divorce Law In Canada: Proposals For Change
Published under the authority of the Minister of Justice.
Egalement disponible en français.
© Minister of Supply and Services Canada 1984
ISBN 0-662-52350-4 Cat. No. 12-43/1984
(letter from then Minister of Justice)
When Canada’s first uniform divorce laws were passed in 1968, the federal government promised to review those laws as circumstances changed. In the fifteen years since then, much has happened in Canada. There have been shifts in the traditional roles of family members, a broader understanding of the complexity of marriage relationships, and greater acceptance of divorce as a reasonable solution to a marriage that has broken down. It is time, therefore, to reassess our divorce laws in terms of current social realities.
That view is supported by legal associations, church representatives, mental health professionals, social workers, women’s groups and concerned individuals across Canada. They agree with our belief that the current Divorce Act is needlessly adversarial. They share our concern that the present law, which places an emphasis on the fault of one spouse for the marriage’s failure, makes a difficult situation even more difficult, and minimizes any chance of reconciliation.
In addition, the Divorce Act, as it now stands, is vague about the rights of children, even though divorce can have a tremendous impact on their welfare.
Our proposals for reform in no way undermine the important role that marriage and family play in our society. They simply recognize that when a marriage does break down beyond repair, it should be dealt with as realistically, painlessly and fairly as possible. The proposals also recognize the need for explicit guarantees that the best interests of children be protected when their parents divorce. Divorce is a subject that affects very many Canadians – it is estimated that one out of every three marriages now ends in divorce. Therefore, I encourage groups and individuals to write to me and let me know their views on the proposals for changes to the Divorce Act. In that way, we can better ensure that the revised laws will meet the needs of Canadians.
Yours sincerely,
Mark MacGuigan
TABLE OF CONTENTS
Page
1.1 Marriage and Divorce in Canada ……………………. . 2
1.2. The Need for Reform …………………………….. . 3
1.3. The Objectives of Reform …………………………. . 3
1. The Grounds for Divorce ………………………….. . 6
2. The Trial Procedure ……………………………… . 7
3. Access to the Courts ……………………………… . 8
4. Maintenance Awards ……………………………… . 9
5. The Rights of Children ……………………………. . 10
1. Divorce Reform in Other Countries ………………….. . 12
2. Family Law Reform ………………………………. . 12
3. The Law Reform Commission of Canada. 1976 …………. . 13
4. Improving the Family Courts ……………………….. . 14
5. Sharing Matrimonial Property ………………………. . 14
1. The Grounds for Divorce 18
2. The Trial Procedure 20
3. Access to the Courts 21
4. Maintenance Awards 22
5. The Rights of Children 23
6. Enforcing Maintenance and Custody Orders 24
50 CONCLUSION
1. A New Role for Divorce Law 28
2. Questions About Reform 29
3. Summary of Proposals 31
INTRODUCTION
Marriage And Divorce In Canada
The concept of the family and the sanctity of marriage remain deeply rooted in Canadian society. Traditionally, those who marry do so believing they have made a life-long commitment. Unfortunately, and for many reasons, society has to face the difficult question of what to do when a marriage fails, bearing in mind the serious emotional and financial consequences for the spouses and their children.·
While wishing to preserve the unity of families, and encouraging reconciliation of estranged partners where possible, society must provide for the legal consequences of family disputes and make reasonable provision for divorce as the termination of a marriage that has failed or broken own irreparably. In Canada, these provisions are presently contained in the Divorce Act of 1968. The first uniform divorce law to come into effect in Canada, the Act was introduced with the intention that it be reviewed s circumstances changed, to ensure that it kept pace with current social realities.
The Divorce Act has been in effect virtually unchanged now for 15 years; it is due for serious reconsideration, given the significant social and economic changes Canada has experienced during the past years. These changes range from shifts in the traditional roles of family members to an increasing acceptance of divorce and a greater understanding of the complex circumstances involved in the marriage relationship .
More Canadians than ever before are affected by the financial, psychological and emotional costs of divorce. The number of divorces granted has risen from 29,775 in 1970 to 70,436 in 1982. Nearly 40% of Canadian first marriages now end in divorce. The divorce rate of 286 per 100,000 population in 1982 showed nearly 100% increase from that recorded a decade ago in 1972. Marriages ending in divorce today have lasted an average of 12 years compared to nearly 16 years in 1969 and Canadians are divorcing at a younger age than before. Less than 1% of all divorce petitions are rejected by the courts, and only one of twenty divorce cases are actually contested at the time of the trial; yet the complications of current divorce law result in considerable court expense and an enormous backlog of cases waiting to be heard. Canadians involved in divorce have spent an estimated $500 million in legal fees alone over the last ten years.
With the growing signif1cance of divorce as a social phenomenon, it is not surprising that divorce law has become the subject of much interest. Criticism has centred on the grounds to obtain a divorce, its process. its implications in terms of spousal financial support, and the custody and support of children.
2. The Need For Reform
Over the years it has become apparent that the current approach to divorce is no longer the best way to resolve marital conflict. Divorce is based on an adversarial process, where spouses are encouraged to tight with each other. This heightens already painful tensions, encourages bitter court scenes, and effectively reduces the possibility of reconciliation. The hostile nature of such a divorce process, often dehumanizing and negative throughout, extends beyond the courtroom and interferes with any chance that the family might have to establish a semblance of positive post-divorce contact.
Reform has been urged by legal associations, church representatives, mental health professionals, social workers, women’s groups and concerned individuals throughout Canada. All agree that the current divorce process is needlessly adversarial and fails to promote reconciliation or mediation between parties involved in divorce; the Divorce Act does not guarantee that financial and child custody arrangements after divorce are fair to all involved, including the children; and the formal court procedure required for divorce is excessively complicated, at tremendous expense to both society and the individuals participating in the process.
3. The Objectives Of Reform
One objective of any divorce law reform should still be to preserve the family unit, if at all possible, by providing an effective attempt at reconciliation. But if the marriage is beyond repair, another objective of divorce laws should be to recognize that fact and permit the marriage to come to an end as peacefully and painlessly as possible, encouraging the use of mediation services, if appropriate, in the process of determining the consequences of divorce. In accordance with these objectives, and recognizing the inadequacy of the present law, the federal government is proposing some fundamental changes to the Divorce Act. To encourage discussion of these proposals, this paper presents an outline and critical assessment of the law. looks at recent trends in divorce reform and attempts to show how the proposals are an effective response to the need for reform.
PRESENT DIVORCE LAW
The Grounds For Divorce
Under the present Divorce Act, there are two basic categories of grounds for divorce: fault and marriage breakdown.
Grounds based on the principle of fault allow a divorce to be granted to one spouse if the other spouse is found to have committed a matrimonial offence. A “matrimonial offence” is any behaviour included in a specific list of wrongful activities, such as adultery. physical or mental cruelty, sodomy, or bestiality.
The permanent breakdown of a marriage is allowed as a ground for divorce, provided that the spouses are living apart from each other, and there are circumstances which can be used as evidence for the breakdown. While not technically a “fault” ground, the circumstances allowed evidence for marriage breakdown tend to put one spouse more at fault than the other. For example, if one spouse has been severely addicted to narcotics or alcohol for at least three years, the other spouse may use this fact as evidence of the breakdown.
If the spouses are living apart for an extended period of time, the separation itself can be used to demonstrate marriage breakdown. The length of time a couple must live apart before applying for a divorce depends on the behaviour of each spouse; here again the notion of fault can play a role. A spouse who has been deserted may apply for a divorce after three years. If the deserting spouse is seeking a divorce, the required separation is extended to five years.
The only circumstance accepted as evidence of marriage breakdown which does not imply fault is when a couple have separated by mutual consent. In this case, a separation of three years is required before divorce can be granted.
By placing the emphasis on the fault of one spouse in the failure of a marriage, the present grounds for divorce tend to make an already difficult situation more difficult. The divorce process is based on the ability of one spouse to blame the other for destroying the marriage. Beginning with accusations of misconduct, the original marital conflict :an easily escalate into an unproductive round of counter-accusations and reprisals. Such a process effectively discourages any inclination either spouse might have to attempt reconciliation or to co-operate in resolving such issues as maintenance or child custody.
The fault grounds are based on the unrealistic assumption that the causes of marriage breakdown can be specified in a limited list of behaviour. Marriages fail for many complex reasons, usually involving both partners. Rarely can one single act of misconduct be said to cause a total breakdown of marriage. A recent study of the causes of divorce indicates that the grounds used in divorce actions have, in fact, little relation to the actual reasons for divorcing, but are chosen for the sake of convenience in meeting the requirements of the law.
While most divorce proceedings last from six months to one year, 65% of the cases citing adultery receive a conditional judgement within six months.
A divorce based on fault grounds can often be granted as soon as the courts have time to deal with the case. If a spouse wants to avoid using fault grounds altogether, a separation period of three or five years must be endured to “prove” that the marriage is beyond repair. In effect, there is a penalty for not using fault grounds. The penalty is arbitrary and encourages those considering divorce to fabricate fault grounds. Most divorce actions are uncontested and involve some form of agreement between the spouses at the time of the trial. In many cases, assertions of “fault” may be made simply to comply with the law, which does not allow for a more straightforward divorce by consent.
2. The Trial Procedure
The Divorce Act states that, in any divorce action, a formal trial is required before a divorce can be granted. The divorce trial is, in principle, the same adversarial process used in such civil actions as a lawsuit over the breach of a business contract. One often speaks of a spouse “suing” for divorce, and it is literally true that every divorce action is a· lawsuit.
The adversarial process is designed for situations where one side of a dispute must be right, and the other side must be wrong; the trial is to determine which is which. The participants are set against each other as legal adversaries, while a judge observes the combat. and eventually selects one side as the “winner”. The winner is on the right side, and is innocent; the loser is wrong, guilty of inflicting some harm on the other.
While there are situations for which the adversarial process may be well suited, it does not seem that a divorce action should normally be such a case. People suffering through the failure of their marriage seldom fall neatly into the categories of a right side and a wrong side, an innocent victim and a guilty villain.
Nor does the formal trial seem to be a constructive way of dealing with every divorce case, especially when the spouses agree to the divorce and have arranged its consequences. By insisting that the breakdown of a marriage be subjected to the adversarial process, couples are encouraged not to seek a cooperative resolution of their difficulties. In fact, a cooperative attitude under such circumstances can be harmful to the financial and family interests of a spouse, since the outcome of the trial is, in principle, determined by which spouse can most successfully attack the other. Conflict is intensified, and where children are concerned, the bitterness can continue to infect the family’s relationship after divorce.
When there are disputed issues, such as child custody or maintenance, which cannot be resolved and are genuinely contested during a divorce, recourse to a formal trial may be necessary. But such cases are few; as mentioned before, 95% of divorce cases are uncontested at the time of the trial. The trial required by law then becomes a mere formality, which clogs up an already strained court system and costs the parties involved substantial legal fees.
3. Access To The Courts
The Divorce Act, sets up three requirements which must be satisfied before one may apply for a divorce in a particular province. The applicant must have a permanent home in Canada. Either the applicant or his spouse must also normally live in the province for the 12 months preceding the application and actually be in the province for at least 10 months.
Canadians are becoming increasingly mobile, changing their place of residence more frequently in pursuit of a career, education, or for family reasons. As a result, a large number of people are finding it difficult to satisfy these rigid requirements and are being denied access to divorce courts.
The purpose of the requirements is to prevent someone from applying for a divorce in a particular province simply because to do so favours his or her own interests and inconveniences the other spouse. For example. the rules prevent someone normally living in Ontario from applying for a divorce in Alberta with the sole purpose of making it difficult for his or her spouse to contest the case. Some adjustment of the rules must be found which will continue to prevent such actions, yet allow people their rightful access to divorce courts.
4. Maintenance Awards
The courts have the power to order one spouse to provide the other with financial support after divorce in lump sum payments or in payments at set intervals. The purpose to be served by these maintenance awards is not mentioned in the Divorce Act, and the criteria to be used in determining their cash value are poorly defined. This lack of clarity has resulted in significant variations in the nature and amount of awards that have been granted.
When determining the level of maintenance awards, the courts have often focused on the behaviour of the spouses rather than concentrating solely on the needs and financial abilities of each spouse. If the financially dependent spouse is the one who is guilty of some misconduct, this means that he or she may receive a lower maintenance award. But since guilt of a matrimonial offence does not increase the financial resources available, a financially independent spouse guilty of misconduct does not normally pay higher maintenance. As a result, a “guilty” spouse is liable to financial penalty only if he or she is the dependent spouse.
There is a tendency for the courts to grant maintenance awards on a long-term basis, which suggests that these awards are primarily intended to provide one spouse with “security for life”, regardless of the circumstances involved in each case. While it is true that in many cases a dependent spouse should be entitled to long term support, this is not always the case.
Having withdrawn from the labour force to provide child care and household management, a financially dependent spouse may find it difficult, or even impossible. to earn a reasonable income after divorce. This diminished capacity to earn an income is a direct result of the marriage and should be taken into account when a maintenance award is determined. In many cases, however, a dependent spouse may be able to adjust to the labour force, especially if provisions are made for job training or further education. Such a spouse may eventually become self sufficient and financially independent. but the present Divorce Act does not recognize that specifically. Given the needs and circumstances of each spouse, self-sufficiency may be both a viable and a desirable goal to be considered when determining maintenance awards.
5. The Rights Of Children
The Divorce Act is even more vague about the rights of children affected by divorce than it is about maintenance awards. The interests and rights of the children of divorced parents are not even mentioned in the Act. and children are not entitled to have a voice in decisions affecting them or in the arrangements made for their maintenance and custody. The Act does not provide for possible independent representation of children, even if their own interests conflict with those of their parents. Nor is it clear whether or not a person other than a parent, such as a grandparent,. can apply for custody or access to a child.
With 50% of divorce cases involving children, divorce proceedings have affected 500,000 children since 1969. A divorce has a major and direct impact on the interests and the welfare of a child. A child will be subjected to a significant reorganization of his or her life and family relationships, and it is surely unacceptable that no explicit acknowledgement of this fact is provided.
In actual practice, the courts have acted on the presumption that where children are concerned, their best interests and welfare are to be given primary consideration. But without clear guidelines in the Divorce Act. children are exposed to considerable risk of mistreatment. It is often said that children are “caught in the middle” of a divorce; custody and access rights can he used as pawns in financial bargaining games between parents, or as tools to vent bitterness on a spouse. There must be explicit guarantees in divorce law to ensure that divorce proceedings and post-divorce arrangements will be fair to children.
TRENDS IN DIVORCE REFORM
l. Divorce Reform In Other Countries
Until recently, divorce law in most Western countries was similar to Canada’s present law, based on the principle of fault. Proof that a “guilty” spouse had committed some matrimonial offence entitled the “innocent” spouse to a divorce.
There has been, however, a growing recognition in these countries that marriage breakdown often occurs without the breakdown being the “fault” of either spouse. A gradually increasing shift away from the fault concept began around 1950. England, France, Germany, Sweden and several of the United States have all moved towards divorce based on marriage breakdown alone. Some countries have now eliminated the concept altogether as a ground for divorce. The emphasis is shifting away from a concern about the grounds for divorce to a concern that the economic consequences of divorce be fair to the parties involved.
2. Family Law Reform
Divorce law is part of the broader field of family law, the body of legislation designed to define the rights and obligations of family members and provide a way to resolve family conflicts should the need arise. Legislative authority over family law is a responsibility shared between the federal and provincial governments. The federal government has exclusive jurisdiction to legislate in matters dealing with divorce, including the consequences of divorce, such as the custody of children and financial support. The provinces have jurisdiction over many aspects of the marriage relationship short of its termination, such as family support, custody and the welfare of children during legal separation. The provinces also deal with marital property and assets, and have enacted legislation determining the division of property on marriage breakdown.
The provinces have been actively engaged in family law reform. In provincial law concerning separation, child support and financial support between spouses before divorce, the trend has been to minimize the principle of fault, with a greater emphasis on marriage as a partnership between equals. There is also increasing dissatisfaction with the adversary process in family courts. Many provinces are exploring alternative methods for resolving family disputes, such as counselling and mediation services. The concern is to make the operation of family law less damaging and more supportive emotionally and psychologically for those involved.
3. The Law Reform Commission Of Canada, 1976
In 1976 the Law Reform Commission of Canada completed a major study of family law in Canada. This study resulted in a number of recommendations, the most important of which are summarized below.
1) Divorce Law
a) The “fault” principle should be eliminated. and ”marriage breakdown”, established if either spouse asserts that the marriage has failed, should be adopted as the only basis for divorce.
b) The principle of “fault” should not be used in determining economic settlements between the spouses or the custody of children.
c) The purpose of maintenance awards. when granted to meet needs created by the marriage, should be to enable a formerly dependent spouse to overcome economic disadvantages and become economically self-sufficient. Maintenance should not be seen as a guarantee of security for life.
d) Adversarial proceedings in divorce actions should be limited.
e) The interests of children should be protected in the divorce process.
2) Matrimonial Property Each spouse should have a right to an equal share in property acquired during the marriage.
3) Unified Family Courts
a) Unified courts should be established to deal with all family law matters, including divorce.
b) Adversarial proceedings in these courts should be limited.
c) Counselling and mediation services should he provided by these courts as an alternative to the formal trial as a method of resolving family conflict. These recommendations were received favourably by the press, and those concerning divorce reform were supported in principle by the federal and provincial ministers responsible for justice in 1976. Since then. there has been growing support for a system of divorce which would eliminate the concept of fault altogether.
4. Improving The Family Courts
The Commission’s suggestion that family courts could offer counselling and mediation services as an effective alternative to the adversarial process attracted considerable interest, and attempts have been made to test the use of such services in practice. Since 1976. the federal and provincial governments have cooperated in setting up a number of unified family court pilot projects, which have been well received. The courts set up in Hamilton. Ontario, Saskatoon. Saskatchewan and St. John’s, Newfoundland continue to operate, and both New Brunswick and Prince Edward Island have established province-wide unified family courts. Manitoba is considering establishing such a court this year.
The pilot projects have shown that counselling and mediation services can provide valuable assistance in resolving family disputes. Experience with these projects suggests that existing community support services in many regions can be used to encourage non-adversarial procedures in family law matters. including divorce.
5. Sharing Matrimonial Property
At the time of the Law Reform Commission’s report not all provinces had legislation implementing the concept of marriage as a partnership entitling a dependent spouse to receive a share of the family assets and property acquired by the other; these were normally owned by the spouse who provided financial resources. Under these circumstances, adopting a no-fault divorce process such as the Commission proposed could have had disastrous results for a dependent spouse who would not have been entitled to share those assets.
With the present fault-centred system of divorce. the dependent spouse can bargain for financial or property assets in return for agreeing to a speedy divorce with the spouse who wants out of the marriage and is willing to accept the “blame” for the marriage breakdown. A no-fault divorce process would remove this bargaining power and might allow a dependent spouse to be forced unwillingly into a divorce after a very short waiting period. If the Law Reform Commission’s proposal for nofault divorce had come into effect without legislation to divide matrimonial property between both spouses, a dependent spouse could have been left with little or no resources, except for a possible maintenance award.
In recent years. however, all provinces have passed legislation providing for the division of matrimonial property. Most of the relevant statutes explicitly recognize that child care. household management and financial provisions are responsibilities shared by both partners, and that, generally speaking, each spouse is entitled to an equal share of the matrimonial property. There are differences among the provinces concerning what constitutes matrimonial property, and the factors which may justify an unequal division of property; for example. some provinces restrict matrimonial property to just those assets in use by the family. such as the house and car. while other provinces include such things as commercial investments or pension benefits. Despite these differences, all provinces support the principle of equal sharing.
PROPOSED REFORM
1. The Grounds For Divorce
The alternatives open for dealing with the grounds for divorce range from keeping the fault grounds and reducing the separation period required for marriage breakdown. but leaving things substantially as they arc; to an extreme form of “divorce on demand”. where either spouse can get an immediate divorce simply by asking for one. In assessing the alternatives, one needs to keep in mind both the specific criticisms of the present grounds and the general objectives to be achieved by divorce reform.
If the present fault grounds for divorce were retained. but the separation period required to use marriage breakdown as a basis for divorce was reduced. some of the difficulties with the present system might be resolved. Shortening the separation period would reduce the “penalty” paid by those who wish to avoid using fault grounds. As a result, people might be less inclined to “fabricate” fault grounds or use them simply for the convenience of a “fast” divorce.
Unfortunately, this suggestion involves little more than “tinkering” with the present system. It keeps the fault grounds but does nothing to deal with the fundamental criticism that has been directed at the fault approach to divorce. It still encourages the view of divorce as an adversarial conflict between an “innocent” and a “guilty” spouse. based on the naive premise that a single act of misconduct can cause the total failure of a marriage. The hostilities that can arise from this approach would still discourage attempts at reconciliation and interfere with the possibility of arriving at mutually agreed arrangements for the consequences of divorce. If we accept that the primary role of divorce is relief for marriage breakdown and not a reward or punishment for good or bad conduct, then any approach to divorce involving the principle of fault will perpetuate difficulties.
If fault grounds were rejected altogether. and “marriage breakdown” as we know it were adopted, the evidence required to prove marriage breakdown would be a three year separation period.
The requirement of a three year waiting period before a divorce is granted seems unnecessarily harsh on spouses who are certain that their marriage is beyond repair. No useful purpose is served by requiring people to prolong a relationship that no longer works.
If, on the other hand, the requirement of a separation period were eliminated entirely, a system of divorce known as “‘divorce on demand” could be adopted. In such a system. the breakdown of a marriage could be conclusively established if either spouse asserted that the marriage has failed, and a divorce could be granted immediately. A version of this system was adopted in Sweden in 1974.
The principle behind this approach is that marriage is based on the free commitment of either spouse, and should be dissolved if either spouse withdraws his or her commitment. Many people might find this principle attractive, and as an approach to divorce it does have some advantages. At the very least, the divorce process could be straightforward, inexpensive and non-adversarial. concentrating exclusively on the consequences of divorce. Adopting mere assertion of breakdown as the only requirement for divorce also has major disadvantages. and could be seen as jeopardizing the institution of marriage as such. Many marriages go through times at which they are particularly fragile and a system of divorce on simple demand does not encourage people to give careful consideration to a decision which might be made in a time of unusual stress. With no positive encouragement to consider reconciliation, the system may endorse hasty or impetuous divorces which both spouses might later regret. Thus, while divorce on demand could achieve some of the objectives of reform, the costs to both society and the individuals involved would be too high.
Some form of waiting period should be required. then, before a divorce is granted. A survey conducted recently indicates that approximately 85% of the Canadian adult population feel that a waiting period of one year or less would be appropriate to establish marriage breakdown. It seems that one year strikes a reasonable balance between the need to ensure that a decision for divorce is carefully considered, and the risk of imposing unnecessary hardship on spouses who feel that their marriage is beyond repair. If a one year waiting period is accepted. the only question that remains is whether or not further conditions should be required to establish marriage breakdown.
When both spouses assert that their marriage has failed and they agree to a divorce. there should be no requirement other than the one year waiting period. If during that year there is no reconciliation. no further evidence should be necessary to “prove” that their marriage has broken down.
When only one spouse wants the divorce. a separation period in which the spouses live apart from each other for a year should he considered sufficient evidence of marriage breakdown. If the spouses have already been living apart for one year or more when either spouse files for a divorce, it should he granted with no further waiting period. If, however, the spouses have been living together and one spouse files for divorce without the other’s agreeing to it. a separation period of one year would he required following the divorce petition.
These conditions could establish the basis for a no-fault approach to divorce. Marriage breakdown would be the only basis for divorce, and it could he invoked when: a) both spouses want a divorce, and have waited one year after filing the petition; or b) either spouse wants a divorce, and they have lived separately for one year before. or after. the petition is filed. While discouraging impetuous divorces, these conditions eliminate the concept of fault entirely and reduce the need for adversarial conflict in . the divorce process.
2. The Trial Procedure
Subjecting the breakdown of a marriage to an adversarial trial seems inherently inconsistent with the constructive resolution of family disputes, and the practice should be limited to those cases where it is absolutely necessary. The requirement of a formal trial is certainly questionable where no issues are contested.
Thus the requirement of a formal trial in all cases should be abandoned. and procedures should be developed for handling divorce cases where no trial is necessary. For example, a system could he established where an officer of the court examines written evidence submitted by the parties involved concerning their grounds for divorce, and its consequences in terms of financial and child custody arrangements. If the evidence shows that all legal requirements are fulfilled and there are no contested issues, further court proceedings would not he required. and a judge could grant the divorce.
By dropping the requirement of a trial in uncontested cases. the provinces would be allowed to develop appropriate methods for dealing with such cases. Since divorce procedure is generally governed by the provinces. specific details would not he developed in the Divorce Act.
Depending on the procedures used by the provinces when a trial is not necessary, a considerable simplification of the divorce process could he accomplished. This would yield substantial cost reductions for the legal system, both in terms of court time and expense and (possibly) in the use of Legal Aid funds. If the provinces wished to do so. the resources saved could be redirected to the use of counselling and mediation services, either attached to the court or within the community.
Counselling and mediation services offer valuable alternatives to the trial process as a means of resolving disputes. With the need for a trial in all cases eliminated. the use of such alternatives could he encouraged.
If mediation services were offered as an alternative to the adversarial trial. there would be less pressure on a spouse to translate marital problems into legal issues to “prove” marriage breakdown or “justify” dissatisfaction. As a result, spouses would be more likely to recognize marriage breakdown as a shared problem between equal partners. requiring reasonable and constructive cooperation for its resolution. Thus, the proposed reform provides a context in which counselling services might operate more effectively.
3. Access To The Courts
In order to remove the restrictions which deny many. Canadians access to divorce courts, the requirements concerning access should be simplified. The three requirements currently in effect should he replaced by one “ordinary residence” requirement. This would state that one may apply for a divorce to a court in a particular province if either spouse has normally lived in that province for at least one year prior to the application.
Under this requirement. the person who normally lives in a particular province and has done so for at least a year, but leaves the province for several months, would still be entitled to apply for a divorce in that province. But such a person would not be allowed to apply in a province where neither he nor his spouse has normally lived for at least one year.
This simplification should be sufficient to prevent unjustified “shopping around” for a convenient divorce court without imposing harsh restrictions on those who have found it necessary to change residences frequently.
4. Maintenance Awards
Many marriages follow a traditional model with one spouse providing financial support and the other spouse withdrawing from the labour market to provide child care and manage household affairs. Thus. one spouse becomes financially dependent and to some extent loses the capacity to earn an income.
The concept of equality in marriage requires that all the economic advantages (i.e. property) and disadvantages (i.e. lack of income capacity) created by the marriage be shared by both spouses on divorce. At the same time it should be recognized that circumstances change after divorce, and spouses should attempt, if possible and within a reasonable period of time. to become economically independent. As the Law Reform Commission stated in 1976. after divorce ‘”everyone is ultimately responsible to meet his or her own needs … eventually to become self-sufficient. as all other unmarried persons must be.”
This does not mean, of course. that economic self-sufficiency is always a reasonable goal for a formerly dependent spouse. For example. a woman who has been out of the work force for thirty years obviously may not be capable of achieving economic self-sufficiency when a younger. possibly childless. woman could do so. Such circumstances should be provided for. and a formerly dependent spouse should be protected from grave economic hardship which might result from the dissolution of the marriage.
The objectives of maintenance should be clearly spelled out in the Divorce Act to ensure that. as far as possible. the economic consequences of divorce are settled fairly and consistently in divorce cases. These objectives should establish general guidelines to he used in determining the nature and value of maintenance awards. ruling out such considerations as the behaviour of the spouses. The proposed objectives of maintenance include:
1) Recognizing that certain advantages ( e.g. property. an established career for the supporting spouse) and disadvantages ( e.g. lack of job training. poor income opportunity for the dependent spouse) arc the result of arrangements made during the marriage and should be shared equally by both spouses after divorce.
2) Ensuring that the economic burden of child care is shared by both spouses.
3) Enabling a dependent spouse to adjust to the labour market after divorce and to become self-sufficient. if possible. within a reasonable period of time.
4) Assuring that a dependent spouse will not he subjected to grave economic hardship, if self-sufficiency is not possible.
These objectives are not arranged in terms of priorities. but should operate together to provide a fair system of maintenance awards. Thus, provisions concerning self-sufficiency would not be used to impose on the dependent spouse an unfair share of the disadvantages arising from the marriage.
5. The Rights Of Children
Given the impact a divorce has on the interests and welfare of a child, divorce law should ensure that the rights of children are protected. A statement should appear in the Act guaranteeing that. in matters involving children, the paramount consideration is their best interests. The following guidelines should also be inserted in the Act to promote consistency and clarify the courts’ duty in making orders relating to children:
1) Where feasible. a child should have maximum access to both parents. Whatever the parents’ reasons for divorce, the child has an interest in maintaining a normal relationship with each parent. As far as the court can prevent it, any animosity the parents may feel for each other should not be allowed to interfere with this interest.
2) Both parents share the responsibility to support their children: hut when determining how much each parent should contribute. the financial resources and needs of both parents. and of the children. should be considered.
3) The court may grant custody. or access. to either parent. to both parents. or to any other person. In making such decisions. the court should. consider the best interests of the child, particularly the child’s interest in having maximum access to both parents.
4) With the court’s permission. anyone who has a sincere interest in the child. such as a grandparent, may apply for access to or custody of the child.
5) If the court decides representation is advisable or necessary. a child should he granted independent representation before the court. separate from that of either parent.
6. Enforcing Maintenance And Custody Orders
An issue of particular concern is the enforcement of maintenance and custody orders; such orders must be enforced if they are to be effective. There are no precise statistics available on the default of maintenance orders or the violation of custody orders. It is known, however, that enforcement procedures are far less effective than they should be, and the improvement of these procedures is an issue which must be dealt with by both the federal and provincial governments.
A maintenance debtor (a spouse or parent ordered to provide maintenance) may simply refuse to obey the order, and in many cases it is left to the dependent spouse to initiate any enforcement action. The debtor may be difficult to locate. If either spouse has moved to another province, then enforcement problems arc even more serious because of the differences in provincial procedures. The same types of difficulties can arise if a parent who has been denied custody of a child violates the custody order and takes that child. With both maintenance and custody orders, inadequate enforcement can result in severe hardship for parents and children.
Both the federal and provincial governments have taken action to improve enforcement procedures. Various provincial governments have adopted legislation which makes the enforcement of court orders originating in another province less complicated, and Canada has now ratified an international convention on child abduction. In 1982 the federal government amended the Criminal Code to make the violation of a custody order by the non-custodial parent a criminal offence. In the same year, Parliament adopted federal government legislation permitting the garnishment (the deduction of debts from a person’s salary) of the salaries of federal civil servants and the diversion of their pension benefits to satisfy maintenance orders.
The enforcement of maintenance and custody orders raises complex issues involving the responsibility shared by federal and provincial governments for family law. In l98l, a Federal-Provincial Committee was set up to investigate ways of improving enforcement in Canada, across provincial boundaries and within each province. The Committee submitted its final report to Ministers of Justice and Attorneys General in July 1983. along with a directory of enforcement procedures and personnel across the country. Some of the Committee’s recommendations are incorporated in the divorce reform proposals. For example. the proposals promote the courts ability to order security to be posted when maintenance awards are granted. Further provisions promote the powers of one court to vary maintenance and custody orders issued by another court.
Other recommendations made by the Federal-Provincial Committee are being considered by both federal and provincial governments, including the possibility of creating a central registry in which all maintenance and custody orders would be filed and the possibility of allowing access to information contained in government files relevant to location of a debtor.
CONCLUSION
I. A New Role For Divorce Law
The reforms under consideration arc the result of a new understanding of the purpose of divorce law. The dramatic increase in the divorce rate. and radically shifting patterns of family life. have forced us to re-examine the entire policy behind divorce legislation: Some attempt must he made to bring divorce law into line with the circumstances under which it must operate.
The increase in divorce rates does not mean that Canadians are “devaluing” marriage and the family. In fact, 75% of divorced Canadians re-enter family relationships after divorce. indicating a continued support for the values inherent in family life. The higher number of divorces docs indicate. however. that people are less likely to settle for a marriage that has broken down. It seems that people are more inclined then they have been in the past to strive for a better quality of life by dissolving unsatisfactory marriages.
It is inappropriate that divorce law place unreasonable obstacles in the path of those seeking relief from marriage breakdown. The state has no interest in the preservation of a failed marriage, or in making the release from a failed marriage more painful than is necessary.
Divorce should not be used as a forum for accusations or reprisals. in which the courts are asked to assign ”blame” and grant divorce as a reward or punishment for good or bad behaviour: it should be for the relief of marriage breakdown. While supporting attempts at reconciliation. it should assist couples to dissolve a “dead” marriage as painlessly as possible and encourage them to discuss the consequences of the dissolution rationally. No purpose is served by encouraging them to “fight”.
By refusing to stipulate a restrictive list of “grounds” for divorce. the law would place responsibility for assessing the viability of a continued relationship where it should be- with the individuals involved. Respecting their decision. the law should be concerned only that the decision is not impetuous and concentrate on the need that the arrangements made after divorce arc just and fair for both partners and their children. Thus the proposed reforms would respect the dignity and integrity of individuals both in marriage and divorce, enhancing the ideal of a free commitment to shared family values which remains deeply rooted in Canadian society.
Questions About Reform
Q. Are these proposals a step towards allowing “easy” or “fast” divorces?
A. The proposals would result in an “easier” divorce process. in the sense that it would be less painful and expensive, more efficient and fair. Marriage breakdown itself is a difficult experience for those involved; there is nothing to be gained by making the process more traumatic through severe divorce laws. The proposals actually represent a slight step away from the “fast” divorce. Under current law. a divorce based on fault grounds can be granted as soon as the court has time to deal with it. Under the proposals. there would have to be either a year’s separation before the divorce petition, or a year’s waiting period after the petition, before a divorce can be granted.
Q. Won’t divorce reform threaten the institution of marriage in our society?
A. No. Divorce, far from being a rejection of the values of marriage, is usually followed by re-marriage and most divorced people re-enter nuclear family arrangements. In fact, the proposals discussed here would enhance the values of marriage and the family. The way society deals with marriage breakdown through its divorce laws should reflect its views on marriage. If divorce laws present marriage as a trap from which one can escape only at great cost, the ideals of marriage and the family become less attractive.
Q. Will the proposals result in a higher divorce rate?
A. Not likely – research in other countries has revealed no causal connection between liberalizing divorce laws and changes in divorce rates. Divorce rates are more likely to rise because of other factors: for example. there tend to be more divorces during harsh economic times or periods of social crisis.
Q. The proposals eliminate fault as a basis for divorce. Does this mean that adultery. or physical cruelty. should not be considered good reasons for divorce?
A. No. But under the proposed reform. what counts as a “‘good reason'” for divorce is left up In the individuals concerned. It is not the specific act- be it adultery, physical cruelty or whatever -that is important, but rather the fact that the act results in marriage: breakdown in the: eyes of the spouse (s). If someone feels that the behaviour of his or her spouse is unacceptable. or constitutes a serious “‘matrimonial offence'”. a divorce would not be refused under the reformed divorce law.
Q. Will dropping the requirement that every divorce case be tried before a judge mean that ‘illegitimate” cases. which would be dismissed by a judge. might pass through the system undetected?
A. Since l968, only 0.8% of divorce actions have been dismissed. Whatever procedures are developed in place of formal trials should he just as efficient in ensuring that all legal requirements for divorce are satisfied.
Q. A thirty year old mother married ten years might get a job in the labour force after divorce. This job would probably provide low wages, but enable her to be “self-sufficient”. If, however. she had not arranged with her husband to provide child care and household management for the family she could have been well established in a career, earning a far more substantial wage. Would this fact be taken into account when maintenance awards are determined?
A. Yes, it would. While the goal of maintenance awards is to enable a once dependent spouse to become economically self-sufficient, the guidelines also state that economic disadvantages arising from marriage should he shared equally between spouses. The wife’s diminished income earning potential is such a disadvantage arising from marriage.
Q. A sixty year old housewife, out of the workforce for thirty years. has been recently divorced. Would she receive sufficient maintenance awards if unable or unwilling to re-enter the work force?
A. Yes. certainly she would. The guidelines take into account protection against grave economic hardship and she would be guaranteed such protection by the court. Any person out of the workforce for a long period of time would not be expected to re-train and re-enter the workforce if this was not a desirable course of action. As well. people in this kind of situation would also qualify under provincial matrimonial property legislation and assets arising out of the marriage would he divided fairly between the spouses.
3. Summary Of Proposals
1) The “‘fault'” grounds for divorce should be eliminated, and marriage breakdown adopted as the sole basis for divorce. Marriage breakdown could be invoked when:
a) both spouses assert that their marriage has broken down and they agree to a divorce. In this case, a divorce would be granted one year after the petition is made, or:
b) either spouse applies for a divorce. and the spouses have been living apart for one year before, or after. the application is filed.
2) Guidelines for determining maintenance awards should be stated in the Divorce Act. These would state that the objectives of maintenance awards arc to: a) recognize that the advantages and disadvantages arising from marriage are to be shared equally by both spouses:
b) ensure that the economic burden of child care is a responsibility shared by both parents:
c) enable a dependent spouse to adjust to the labour force and become independent, if this is possible, within a reasonable period of time:
d) ensure that where independence is not possible, a dependent spouse will not be subjected to grave economic hardship.
3) The Divorce Act should state that in issues where children are concerned, arrangements should be made in their best interests. Guidelines concerning the interests of children would include:
a) A child should have maximum access to both parents after divorce;
b) Both parents are responsible for the maintenance of their children;
c) The court may grant custody or access to either parent. both parents, or any other person if it is in the interests of the child to do so;
d) With the court\ permission, any person with a sincere interest in a child, such as a grandparent. may apply for access to or custody of that child;
e) A child should, if necessary, be given independent representation in court.
4) The requirement of a formal trial for every divorce should be dropped, allowing “out of court” procedures if the divorce is not contested.
5) The rules restricting access to divorce courts should be simplified, and should be based on the concept of “ordinary residence”. An applicant could apply for a divorce in a province if either spouse had normally lived in that province for one year prior to the application
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