The Divorce Act or the Children’s Law Reform Act: Which to use?

Recent changes to the provisions dealing with post-separation parenting arrangements in Ontario’s Children’s Law Reform Act (CLRA) bring it into alignment with the federal Divorce Act. Women may wonder whether one piece of legislation is better for their case than the other.

This is very much a fact-specific decision. If the woman has a lawyer, the lawyer will know which legislation is the most appropriate, once they gather some basic information from the woman. If the woman is unrepresented, she will have to figure this out on her own.

Either way, here are a few factors for you to discuss with women in this situation to help them understand what each law has to offer them and which one might be the most appropriate in their situation:

1) Is she seeking a divorce?

The primary purpose of the Divorce Act, as its name indicates, is to provide divorces for married people who wish to legally end their relationship.

It is a federal law, so applies to people regardless of where they live in Canada or where they got married. As long as their marriage is legal under Canadian law and one of the two spouses has lived in the province or territory where they wish to make their divorce application for a certain period of time, they can use the Divorce Act.

If a woman is married and wants to apply for a divorce, she can use the Divorce Act to also sort out arrangements for the children and other family law issues. She could also opt to use the CLRA to address child-related arrangements and then use the Divorce Act to apply separately for a divorce. Her choice will depend on other factors in her situation.

Women who are not married to the other parent of their children or who are married but not pursuing a divorce can use only the CLRA to resolve parenting arrangements for her children.

2) Is Ontario the children’s habitual residence?

As noted above, the Divorce Act applies to people living anywhere in Canada. The CLRA is a provincial law specific to Ontario.

Child-related matters must be dealt with where the children have been “habitually resident.” This term means the place where they lived with their parents before the parents separated. For example:

• If the family lived in Sault Ste Marie, Ontario, until the mother left the father, if she and the kids moved to Thunder Bay or British Columbia or France, the child-related issues would have to be dealt with, at least initially, in Sault Ste Marie. Depending on the circumstances, she might be able to have the case moved to her new location, but the starting place would be Sault Ste Marie, and the law to be used for dealing with parenting issues would be either the Divorce Act, because it is federal, or the CLRA, because it is Ontario’s law.
• If the family lived in Grande Prairie, Alberta, before the parents separated, and then the mother moved to Ontario, she would have to use Alberta family law or, once she had lived in Ontario for long enough, the Divorce Act to resolve any child-related legal issues
• If the family had lived in Ontario for several years, moved to British Columbia for a short-term work-related reason, the parents separated and the mother returned to Ontario with the children, she might be able to make an argument that the children’s habitual residence was Ontario, which would allow her to use the CLRA for parenting arrangements.

When discussing family law matters with women, it’s important not to assume they have always lived in Ontario. Ask, and If Ontario is not where the children have been habitually resident, make sure the woman knows to share this information with her lawyer. If she does not already have a lawyer, she should seek legal advice about this as soon as possible.

3) What family law issues does she wish to address?

Women need to use the right legislation for the issues they wish to resolve.

The Divorce Act has jurisdiction over divorce, which no provincial laws can address. The Divorce Act can also address parenting arrangements (formerly known as custody and access), child and spousal support and property division. The Divorce Act does not address restraining orders or orders for exclusive possession of the matrimonial home.

The CLRA cannot give someone a divorce, but it can address parenting arrangements and child support.

Another provincial law, the Family Law Act, addresses spousal support, property division, restraining orders and exclusive possession of the matrimonial home.

Often, a woman’s case will rely on both the CLRA and the FLA, if she has both child and non-child related issues to sort out.

4) How do the two pieces of legislation address family violence?

As a result of recent revisions, both the Divorce Act and the CLRA provide a detailed and almost identical definition of family violence as well as very similar lists of factors for courts to consider when the issue of family violence has been raised.

The Divorce Act definition of family violence is:

any conduct, whether or not that conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct

The CLRA definition is:

any conduct by a family member towards another family member, that is violent or threatening, that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person – and in the case of a child, the direct or indirect exposure to such conduct, whether or not that conduct constitutes a criminal offence

Both statutes then list examples of behaviour that would constitute family violence:

• Physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person
• Sexual abuse
• Threats to kill or cause bodily harm to any person
• Harassment, including stalking
• The failure to provide the necessaries of life
• Psychological abuse
• Financial abuse
• Threats to kill or harm an animal or damage property, and
• The killing or harming of an animal or the damaging of property

5) Are there financial implications of either statute?

It costs money to apply for a divorce: $632 in court fees. There are no fees to start a case under the CLRA to deal with child-related matters.

6) Are there time-related considerations?

In Canada, with rare exceptions, there is a one-year period that must pass between the date of separation and the issuing of a divorce. This means that if a woman is using the Divorce Act to also resolve issues related to the children, she won’t have a final order for some time. However, she can start an application for a parenting order under the CLRA as soon as she separates and might have an interim order within weeks or, if not, a few months.