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In divorce proceedings, the federal Divorce Act applies to custody, access and support issues. Using data from the Civil Court Survey, this article examines divorce cases as they proceed through the civil court system in seven provinces and territories (Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut, which represent 66% of Canada's population).3 Some of the key aspects associated with these cases are examined, including the volume of cases, the number and type of case events and the length of time taken to process cases. Prior to 1968, there was no federal divorce law in Canada and only some jurisdictions enacted divorce legislation. In 1968, Parliament enacted the federal Divorce Act, introducing the concept of permanent marriage breakdown and widening the reasons for divorce from adultery to include mental or physical cruelty, desertion, separation for three years or having an imprisoned spouse. Canada's current divorce law came into effect on June 1, 1986, after further reform of the Divorce Act in 1985.
A new divorce case is started when one or both parties in the marriage apply for a divorce with the court.
In addition to new cases each year, civil courts continue to process ongoing divorce cases, or cases that had been initiated in a prior year.
Civil courts handle divorce cases and all other family cases such as adoption, child protection, guardianship and cases involving property division, custody and access, and support under provincial law.
The main purpose of a divorce is to end the legal relationship of marriage and finalize the various issues that may still exist between spouses such as the division of assets or property, spousal support, child support, custody and access.
Divorce can be a very difficult, stressful transition and people going through a divorce may make use of various programs and services for support and guidance through the experience. According to the General Social Survey, close to 600,000 persons in Canada went through a divorce between 2001 and 2006. In some divorce cases, a joint application for divorce will be made, indicating that both parties have agreed to the divorce and any related issues.
The Divorce Act outlines the criteria for child and spousal support and custody of and access to children after a divorce.
Overall and in three jurisdictions, Nova Scotia, Ontario and Yukon, the breakdown by length of case is similar for both active divorce cases and all other active family cases (Table 2a and table 2b).
Family cases, including divorce cases, may flow in and out of court as issues are resolved. In all five jurisdictions, family cases not involving divorce were less likely than divorce cases to be active the year following initiation (Chart 2). A variety of activities take place as divorce cases proceed through court, and the process and forms required at different stages of a case vary among the provinces and territories. Disposition events, including judgments, consent judgments, case settlements, or decisions made to withdraw or dismiss an action, made up 18% of all divorce case events (Table 3). For divorce cases, the first occurrence of a disposition commonly takes place soon after case initiation. Judgments include all decisions made by a judge or master, such as orders, interim orders, summary judgments, judgments granting a divorce and other decisions that resolve matters associated with the case.
In four of the reporting provinces and territories, support judgments were reported in at least 13% of active divorce cases that had had a judgment over the length of the case, custody judgments in at least 9% and access judgments in at least 8%.15 One-half of all of these judgments occurred within the first six months of the case.
The divorce will not be finalized, but cases may also be disposed of if the parties settle or withdraw the case from court or if the court dismisses or discontinues the case. Each year, civil courts handle new divorce cases, as well as ongoing divorce cases from a prior year.
The Civil Court Survey allows for multiple issues, such as divorce, custody, access, support, and others, to be reported for a case as the case proceeds through court. Provincial and territorial law also governs the distribution of property upon divorce and all other family law matters related to parents and children, including adoption, child protection and guardianship. Divorce is an age-related phenomenon which decreases with age but the crude rates do not take into account the age structure of the population (Statistics Canada 2008d).


A recently separated or divorced person was considered to have dependent children if they had any biological or adopted children with a former spouse or common-law partner and the children were under the age of 23 at the time of the survey. In Canada, many couples experience divorce, with just over one-third of all marriages ending in divorce (Statistics Canada 2008a). Most divorces in Canada today are based on the reason that the couple has been separated and living apart for at least one year (Statistics Canada 2008c). In some provinces, legislation allowed a husband to obtain a divorce on the grounds of his wife's adultery, and a wife to do so provided she could establish that her husband had committed certain acts or adultery coupled with cruelty or desertion (Douglas, 2001). This legislation established one ground for divorce in Canada: "breakdown of marriage" building upon the concept introduced in 1968.
Divorce rates have since continued a downward trend, reaching 221 divorces per 100,000 population in 2005. The court must register all new divorce applications with the federal Central Registry of Divorce Proceedings (CRDP) to ensure that no other proceeding involving the same parties has already been started elsewhere.
In Ontario, six in ten divorce cases were new that year, compared to Nova Scotia, Alberta and Yukon at about four in ten. Lawyers and counselling services are commonly used by individuals during their divorce and there are also programs and services available to help divorcing spouses resolve issues and conflict before they go to court (Text box 2). More than eight in ten (82%) of these persons made use of one or more services to work through their divorce (Text Table 2).
These programs provide information on the demands and challenges of parenting after separation or divorce, and educate parents on methods of communication, co-parenting and the effects of conflict on children (Department of Justice 2006a). There may also be community resource centres available to provide support and guidance through a divorce. Recently divorced persons are those persons aged 15 and over who had experienced a divorce between 2001 and 2006. At least one-quarter of all divorce cases with issues dealt with the three issues of access, custody and support (Text Table 4). The vast majority of all process events were document filings which often accompany various stages of case activity, from the documents required at case initiation, to those filed during court hearings and those filed upon decisions made by the court.10 Almost two-thirds (65%) of all divorce case events for the seven reporting provinces and territories were document filings, ranging from 58% in Ontario to 87% in the Northwest Territories (Table 3). Divorce cases may involve many judgments over time as various issues, like custody, access, and support are resolved. This article has examined the processing of divorce cases through civil court in seven provinces and territories, Nova Scotia, Ontario, Alberta, British Columbia, Yukon, Northwest Territories and Nunavut, using data from the Civil Court Survey. For this analysis, a case is counted as a divorce case if divorce has been one of the issues reported for the case, over the length of the case. Differences in the age structure of the provincial and territorial populations contribute to some of the variation in crude divorce rates among the provinces and territories. Recently divorced persons included all those who were divorced between 2001 and 2006, whether they had been initially separated from that union within this same time frame or whether their initial separation occurred prior to this reference period. This survey coverage allowed for the inclusion of all parents whose children were under 18 at the time of any separation or divorce occurring within the five-year time frame of the survey. In 2005 alone, there were over 71,000 divorces granted in Canada (Statistics Canada 2008b). Divorce cases are governed by the legislation contained in the federal Divorce Act and can be handled by two types of civil courts: superior courts and unified family courts. Over the last four decades, changing socio-cultural conditions have contributed to a greater social acceptance of divorce, subsequently influencing changes to divorce legislation and the grounds for divorce. In other provinces, either spouse was allowed to seek a divorce on the basis of adultery. These changes sparked a large jump in the number of divorces and the rate of divorce more than doubled between 1968 and 1969, from 55 divorces per 100,000 population to 124.


The court cannot grant a divorce until a clearance certificate has been issued by the CRDP and filed with the court confirming that there are no other ongoing actions. About 13% of recently divorced persons with children used these types of programs during the divorce process.
About one in ten recently divorced persons made use of a family law information centre (11%) or community resource centre (10%) during their divorce.
The other spouse then has the opportunity to file an answer or Statement of Defence within a certain length of time to contest or dispute the divorce. The law also provides that custody and access decisions must be based on the best interests of the child and a court will not grant a divorce unless satisfied that reasonable arrangements have been made for the care and support of the children (Divorce Act 1985). Custody was an issue in at least 39% of cases, while access was identified in at least one-third of divorce cases with an issue.
Alberta and Yukon tended to have a larger proportion of older divorce cases with almost one-quarter (24%) more than four years old. Many of these documents were affidavits (23%), orders (14%), various notices and motions (10%), case initiating documents such as applications (9%), and divorce certificates (6%). A judgment was the first disposition in almost all divorce cases with a disposition (91%). The majority of ongoing cases were no more than two years old, although there were some provincial and territorial differences in the age of divorce cases being handled through the court.
30 and 50 year total divorce rates per 1,000 marriages, Canada, provinces and territories, annual (rate per 1,000 marriages).
Divorce can be a very challenging transition as couples work their way through the divorce and decide on arrangements for the support and care of any children involved.
In jurisdictions with no divorce legislation, divorces were granted on a case-by-case basis by private acts of the Parliament of Canada. Marital property issues are generally dealt with at the same time as divorce but under provincial and territorial family law legislation. For a more detailed analysis on navigating couple dissolution and results related to both separated and divorce individuals, refer to Navigating Family Transitions: Evidence from the General Social Survey. Information related to these issues may be under reported and findings are limited to divorce cases where the information is available. Studies have shown that there are many negative consequences associated with divorce such as reduced financial resources and a greater risk for children of divorced parents to experience social and academic difficulties and behavioural problems (Ambert 2009). In most provinces and territories, the parties to an uncontested divorce no longer have to appear in court before a judge (Department of Justice Canada 2006b).
Decisions that resolved matters related to the case were commonly reached within the first six months of case initiation and the majority of divorce cases never reached a trial within the four-year period examined. Instead, a judge may grant a divorce judgment after reviewing the application and adequacy of the documentation filed.
Many of these systems do not capture the nature of corollary issues or relief sought when divorce cases are first initiated. Some of the information on the issues involved in divorce cases has been derived from activity over the life of the case, such as information on court orders although there is often limited judgment detail obtainable. Information related to these issues may be under reported and findings are limited to divorce cases where the information is available.



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