We do our best to supplement our own posts with some relevant information we discover out there in cyberspace. Even stuff from the United States or other countries besides Canada. Here is one piece we discovered recently:
Canadian divorce while in the US? Etc. : Canadians in the USA ….
Hello I am in need of some info. Had a Canadian friend visit me at the end of January/end of February, and, that crazy thing …
We also keep our eyes on discussions people are having that may be of interest. This is one of those:
How can a canadian woman best protect themselves during divorce?
Get a good Canadian lawer, Ae??
continue reading…
Obviously there are many sites on the Internet dealing with divorce. Here are some links to several other sites.
Family Courts, Men Roll the Dice on Spousal Support
leads to quantifiable improvements in relationships
Sampling of Provincial & Federal Legislation Affecting Women in Western Canada
Content provided courtesy of Google, Yahoo and Technorati.
We recently had a question about whether a judge could order a couple who had not lived together for over a year to do so before granting a divorce. Under no circumstances can a judge order them to live together for any amount of time. The closest thing to what you say is that a judge can refuse to grant the divorce if he believes there is a a possibility of reconciliation. The Divorce Act says:
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(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall
(a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and
(b) with the consent of the spouses or in the discretion of the court, nominate
(i) a person with experience or training in marriage counselling or guidance, or
(ii) in special circumstances, some other suitable person,
to assist the spouses to achieve a reconciliation.
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In actual practice the only evidence on this issue that the judge will have in an uncontested divorce will come from the affidavit(s) of the applicant(s) which will just state that there is no possibility of reconciliation and the judge will accept that.
Under section 9 of the Divorce Act a lawyer has the duty to discuss the issue of reconciliation with his/her client and inform him/her about “marriage counselling or guidance facilities” and “mediation facilities” for assisting in negotiating terms of divorce.
In a recently released judgment (Schwabe) the Ontario Superior Court of Justice examined a case where spousal support was being paid after a long, traditional marriage had ended. Traditional in the sense that the wife had stayed at home with the children during the 3 year marriage while the husband pursued his career. When the marriage ended, the wife was unemployed and the husband was bringing in about $90,000 a year.
The couple separated in 1999. In 2000 they agreed to spousal support payments of $2,500 per month. When their divorce was granted in 2002 the court cut it back to $2000 per month which was to end in 2004 unless the wife had been unable to find full-time employment. She was not and so in 2004 the court extended the payments but, and this is important, it decided to divide the risk between the parties by reducing the payment to $1,000 per month.
Now in 2008 the husband had asked the court to end support but the court declined. It held that the wife had continued to do her best to find full-time employment, was working part-time, and was pursuing her education toward being better qualified for a full-time teaching job. So, the $1,000 monthly payments are to continue until the wife gets a full-time job. In 3 years, if nothing changes, the court will consider the husband’s request again.
For a while we have been fielding frequent inquiries from gay and lesbian couples who have been married in Canada but live in the States wondering how they can get a divorce. The problem is that, to get a divorce in Canada one of the spouses must reside here. But to get divorced in the US the marriage must first be recognized. Until recently that meant that vows made in Canada by same-sex partners to remain together “until death do us part” had to be taken literally.
However, recently a justice of the New York Supreme Court ruled that under state law the marriage of two women which took place in Canada could be recognized in New York for the purposes of allowing them to obtain a divorce.
As far as I know this is the first and only instance where a US court has recognized a same-sex Canadian marriage. Those in similar circumstances who reside in one of the other US states may still find themselves in a legal limbo but, if the New York decision establishes a precedent, that may not last much longer.
An interesting question will be whether it turns out that the right to divorce will precede and even help bring about the legalization of same-sex marriages in the States by acclimatizing people to the concept.
Another interesting aspect of this case is that the court held that New York law recognizes any marriage which is valid in the jurisdiction in which it takes place with two exceptions. The first would be situations which are specifically prohibited by legislation. The second would be situations which are said to offend natural law such as polygamy and incest.
One can make a strong case against incest on both genetic and psychological grounds as offensive to “natural law”. But surely if social taboos have broken down to the point where same-sex marriage is inoffensive then why not polygamy as well?
For further reading on this subject see:
LESBIAN COUPLE MARRIED IN CANADA CAN DIVORCE IN NEW YORK
In most divorce cases neither spouse needs to appear in a court room before a judge. That’s because most divorces are uncontested and can be dealt with by the court simply as a matter of paperwork. Yes, you still need to have all your documents in order, and yes, this can be a royal pain in the backside (which creates the need for services like our divorce document preparation service) but at least you avoid the ordeal of an actual court room appearance.
But what about cases which are not uncontested and the spouses lives far apart? If the unsettled issue is the proper amount of child support, in Canada there is a provision for something called a provisional order. The spouse asking for support goes to court before a judge near his home, provides the relevant documents, tells the judge what the support amount should be and why and then the judge makes a provisional order.
Then, that provisional order, along with the rest of the court file, gets sent to a judge near the other spouse’s home. There the other spouse can appear before that judge, provide the relevant documents and have her say about what the right amount should be and why. It is then up to that judge to either confirm or modify the provisional order.
The problem is that the cases where provisional orders can be used are limited to support cases and only where both spouses reside in Canada. In other cases it may be prohibitively expensive and even unfair for one spouse to have to travel to and from one or more hearings near the home of the other spouse.
Another option is for the spouse who lives away to attend the hearing via video conference. Video equipment is set up in the court room, as well as an appropriate location near the remote spouse. This gives the remote spouse the opportunity to observe the proceedings, including the body language of the witnesses and likewise allows those in court, including the judge, the opportunity to observe the remote spouse.
As the cost of such technology decreases this option is becoming more affordable and will probably become more widely used. However, there are still the associated costs of renting the equipment and hiring the technicians to set up, operate, and take down the equipment. This can make it all a more expensive proposition than the actual travel. However, for someone who cannot travel due to work, health or other issues, it is a viable alternative to relinquishing your legal right to be heard.
