27 October 2013

Supreme Court Publishes Rules for Divorces Under Civil Marriage Act

Regular readers will recall the August amendments to the federal Civil Marriage Act intended to allow non-resident same-sex couples marrying in Canada the ability to get divorced when they reside in countries which do not recognize same-sex marriages; see my post on the subject, "Civil Marriage Act Amended to Allow Non-Residents to Divorce."

Since the amendments were made, I am aware of two lawyers who have begun divorce proceedings under the Civil Marriage Act, as they were entitled to do, despite the absence of rules and forms. The Supreme Court has at last filled the gap and announced, effective 28 October 2013, a new Practice Direction on the issue, PD-43 (PDF). Here's the Practice Direction in a nutshell:
Claims for a divorce under the Civil Marriage Act are to be starting by one or both spouses filing a Requisition in Form 31. 
Where only one spouse is asking for the divorce and the other spouse consents to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. the other spouse's affidavit consenting to the divorce.
Where only one spouse is asking for the divorce and the other spouse does not consent to the divorce, the applicant spouse must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by the applicant spouse, 
  3. the applicant's affidavit stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted, and
  4. an order from a court in the country where either spouse lives saying that the other spouse cannot consent to the divorce issues because of mental incapacity, that the other spouse is unreasonably withholding his or her consent to the order or that the other spouse cannot be found.
Where both spouses are asking for the divorce, they must also file:
  1. their marriage certificate, 
  2. a draft divorce order in Form 35 signed by both spouses, and 
  3. an affidavit from each spouse stating that the marriage has broken down because the spouses have been separated for at least one year, that neither spouse resides in Canada and that each of the spouses live in a country in which a divorce cannot be granted.
If the court is satisfied that the divorce should be given, the divorce will be effective from the date of the order without an appeal period. The court registry will issue a Certificate of Divorce to a spouse who requests one. 
The Practice Direction sets out examples of the forms to be used — and remember that these are civil court forms, not the usually family law court forms usually used in divorce cases — as well as handy and important reminders such as these:
  • the Practice Direction does not apply to divorces under the federal Divorce Act; and,
  • no claims for other orders, like about support, the care of children or the divisions of property made be made in divorce proceedings under the Civil Marriage Act.


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