The processing of divorce cases through civil court in seven provinces and territories

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by Mary Bess Kelly

How many divorce cases are handled each year?
How many divorce cases are contested vs. uncontested?
What issues are dealt with in divorce cases?
How long are divorce cases active in court?
What kinds of court activity accompany divorce cases?
How often will divorce cases come to trial?
How quickly are decisions reached in divorce cases?
Summary
Detailed data tables
Methodology
References
Notes

Divorce is a complex issue and the circumstances surrounding every divorce are diverse. In Canada, many couples experience divorce, with just over one-third of all marriages ending in divorce (Statistics Canada 2008a). In 2005 alone, there were over 71,000 divorces granted in Canada (Statistics Canada 2008b). 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. 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).

All divorces in Canada must go through a civil court in order to be legally recognized. In Canada, the civil court system is divided between the federal and provincial and territorial governments. 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. Superior courts hear cases related to federal statutes, including divorce cases. Unified family courts are specialist courts that only deal with issues involving family law and may hear matters under both federal and provincial-territorial legislation.1

In divorce proceedings, the federal Divorce Act applies to custody, access and support issues. Provincial and territorial legislation determines these issues for married and unmarried parents seeking separation, and divorcing parents who choose to have these issues determined under provincial legislation during their divorce proceedings (Department of Justice 2002).2

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. Where relevant, the analysis in this article compares divorce cases to all other family court cases including property division, custody, access and support under provincial law, adoption, child protection, civil protection, enforcement, family estate matters and guardianship.4

How many divorce cases are handled each year?

The Divorce Act establishes one ground for divorce, "breakdown of the marriage" which can be established in one of three ways: separation of one year or more; adultery; or mental or physical cruelty. 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). 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. These changes have had an impact on the trend in couples seeking divorce (Text box 1).

Text box 1
Changes to divorce legislation over the last forty years are reflected in divorce rates

Prior to 1968, there was no federal divorce law in Canada and only some jurisdictions enacted divorce legislation. 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). In other provinces, either spouse was allowed to seek a divorce on the basis of adultery. In jurisdictions with no divorce legislation, divorces were granted on a case-by-case basis by private acts of the Parliament of Canada. In 1961, the crude rate of divorce in Canada was 36 divorces per 100,000 population, although there were substantial variations in rates among the provinces and territories (Text table 1).5

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. The grounds for divorce were equally available to husbands and wives. 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. Rates continued to increase through the 1970s and 1980s, climbing to 239 in 1985.

Canada's current divorce law came into effect on June 1, 1986, after further reform of the Divorce Act in 1985. This legislation established one ground for divorce in Canada: "breakdown of marriage" building upon the concept introduced in 1968. Reasons for marital breakdown included those contained in the Divorce Act of 1968 but reduced the separation period from three years to one. Amendments to the act also provided for parties to file for a divorce jointly (Douglas, 2001). After introduction of the Act, rates of divorce rose substantially as divorce became easier to obtain and those who had been waiting for the amendments to take effect, divorced under the new law. The rate of divorce peaked in 1987 at 362 divorces per 100,000 population. Marital breakdowns from the large cohort of baby boomers, who married in large numbers in the early 1970s, may also have contributed to the higher rates of divorce during this peak period (Statistics Canada 2008d).

After the spike in 1987, rates declined and then levelled off through the 1990s (Statistics Canada, 1997). Divorce rates have since continued a downward trend, reaching 221 divorces per 100,000 population in 2005.

Marriage rates, meanwhile, have continued to decline since the 1970s as common-law unions are becoming more common and fewer people are choosing legal marriage. In 2006, married-couple families accounted for 69% of all census families, down from 80% two decades earlier (Statistics Canada 2007). During the same time period, the proportion of common-law couple families rose from 7% to 16%.

Text table 1
Crude divorce rates, Canada, provinces and territories
Province or territory 1961 1968 1969 1985 1986 1987 1990 1995 2000 2005
Crude rate per 100,0001
Canada 36.0 54.8 124.2 238.9 298.8 362.3 282.3 262.2 231.2 220.7
Newfoundland and Labrador 1.3 3.0 20.0 96.6 118.8 193.7 175.5 170.6 169.9 153.5
Prince Edward Island 7.6 18.2 91.9 166.3 154.5 213.1 214.4 191.0 197.0 204.8
Nova Scotia 33.2 64.8 102.1 263.3 292.4 307.8 265.1 244.6 218.2 209.5
New Brunswick 32.4 22.9 55.3 187.3 237.6 273.1 228.7 191.6 227.3 192.2
Quebec 6.6 10.2 49.2 236.4 282.5 324.7 291.6 274.5 231.2 203.0
Ontario 43.9 69.3 160.4 223.4 290.7 403.7 280.2 264.4 223.8 229.4
Manitoba 33.9 47.9 136.3 213.3 272.6 356.5 252.4 235.3 212.0 206.9
Saskatchewan 27.1 40.0 92.1 187.3 240.0 286.4 233.9 228.4 214.7 194.1
Alberta 78.0 125.7 221.0 336.0 391.8 390.2 332.1 276.6 271.7 246.4
British Columbia 85.8 110.8 205.0 278.6 374.1 397.6 296.1 275.0 246.8 233.8
Yukon 164.1 200.0 262.5 389.9 379.6 546.6 289.0 371.9 222.4 350.2
Northwest Territories .. 36.7 96.8 130.8 171.6 195.8 155.0 142.8 229.8 152.5
Nunavut2 ... ... ... ... ... ... ... ... 25.5 33.3
Standard table symbols
1. Crude divorce rate is the number of divorces per 100,000 population.
2. Nunavut is included in the Northwest Territories before 2000.
Source: Statistics Canada, Canadian Vital Statistics, Vital Statistics Volume II, Marriages and Divorces, 1971, and Health Statistics Division, Divorces, Shelf tables, Catalogue Number 84F0213XPB and CANSIM table 101-6501.

A new divorce case is started when one or both parties in the marriage apply for a divorce with the court. 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. 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.

In 2008/2009, there were just over 56,100 new divorce cases initiated in the seven reporting provinces and territories (Table 1). Ontario represented almost 60% of this total, with 32,369 new cases, followed by British Columbia and Alberta at close to 20% each.

Among five of the reporting provinces and territories, the total number of new divorce cases has declined 6% over the four-year period ending in 2008/2009. During this time, declines have been steady in Nova Scotia, Ontario and British Columbia, while the territories have seen some year-to-year fluctuations (Table 1). (Data for Alberta and Northwest Territories are not available for part of this time period).

New cases represented one-half of all divorce cases proceeding through civil court in the reporting provinces and territories in 2008/2009. In Ontario, six in ten divorce cases were new that year, compared to Nova Scotia, Alberta and Yukon at about four in ten.

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. In 2008/2009, there were another 55,900 ongoing divorce cases in the reporting provinces and territories. These were cases that had some kind of case activity or event, such as a document filing, hearing or decision, during the 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. Divorce cases accounted for one-third (34%) of all family cases being handled by the courts in the reporting jurisdictions in 2008/2009 (Table 1). The proportion was smallest in Nunavut (6%) while in Alberta and Yukon, the two locations with the highest rates of divorce in Canada, divorce cases accounted for at least 40% of all active family cases.

In addition to family court cases, civil courts handle non-family, or general civil cases such as motor vehicle actions and bankruptcy matters. Within the context of all civil court proceedings, in other words both family and non-family actions, divorce cases accounted for 12% of all active cases in 2008/2009 in the seven reporting provinces and territories, ranging from 5% in Nunavut to 15% in Alberta.

How many divorce cases are contested vs. uncontested?

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. 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).

Text box 2
Lawyers and counselling services are commonly used by people going through divorce

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. The following examines the use of these services by divorced individuals in Canada, using data from the 2006 General Social Survey.6

According to the General Social Survey, close to 600,000 persons in Canada went through a divorce between 2001 and 2006. More than eight in ten (82%) of these persons made use of one or more services to work through their divorce (Text Table 2). The services of a lawyer were used by almost three-quarters (72%) of divorced persons, and counselling services were used by over one-third (35%) of divorced persons for either themselves or their children. Almost one-half of the recently divorced individuals had at least one child with a former spouse.7

All provinces and territories have, or are planning to have, programs and procedures in place to ensure that alternative dispute resolution services are available for addressing family law issues (Department of Justice 2006a). These services, such as mediation and conciliation, are designed to resolve issues and conflict between parties before they go to court. These kinds of services were used by almost one in five (18%) recently divorced persons.

Parent education programs are also offered in every province and territory in Canada. 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). About 13% of recently divorced persons with children used these types of programs during the divorce process.

Family law information centres have been established in most provinces and territories to provide information on the court system and other information or referrals that may assist individuals with their court cases (Department of Justice 2006a). There may also be community resource centres available to provide support and guidance through a divorce. About one in ten recently divorced persons made use of a family law information centre (11%) or community resource centre (10%) during their divorce.

Text table 2
Majority of divorced individuals use formal services during divorce
Type of program or service used Recently divorced persons, Canada1
percent
Used at least one program or service of any kind 82
Lawyer, including legal aid or duty counsel (for self or children)
72
Counselling (for self or children)
35
Conciliation, mediation or other Alternative Dispute Resolution service
18
Parent education or information sessions2
13
Family law information centre
11
Community resource centre for referrals or support groups
10
At least one other service3
8
Did not use any program or service 18
1. Recently divorced persons are those persons aged 15 and over who had experienced a divorce between 2001 and 2006. The General Social Survey sample included respondents in Canada's 10 provinces.
2. This percentage is based on those with children only.
3. Other service includes financial services and any other program or service.
Note: Any given respondent may have used multiple services. "Don't know" and "Not stated" responses were excluded.
Source: Statistics Canada, General Social Survey, 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. In other cases, a sole divorce application by one spouse will be filed with the court. 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. If an answer is not filed, the divorce will proceed through court as uncontested. 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). Instead, a judge may grant a divorce judgment after reviewing the application and adequacy of the documentation filed.

Most divorce cases proceeding through court are uncontested. In the seven reporting provinces and territories, an answer had been filed in less than one-fifth (19%) of all active divorce cases in 2008/2009 (Text Table 3). Figures in individual jurisdictions ranged considerably from lows of 0% in Nunavut and 2% in Yukon to a high of 26% in Alberta.

Text table 3
Active divorce cases in 2008/2009 with Statement of Defence filed during case by year of case initiation
Province or territory1 Year of case initiation Total Total active divorce cases2 Percentage with Statement of Defence filed
2008/
2009
2007/
2008
2006/
2007
2005/
2006
pre-2005/
2006
number percent
Nova Scotia 170 209 164 126 85 754 4,747 16
Ontario 3,195 3,406 2,033 1,048 0 9,682 52,977 18
Alberta 2,269 1,455 0 0 0 3,724 14,559 26
British Columbia 894 1,072 629 406 249 3,250 20,814 16
Yukon 2 0 2 0 0 4 175 2
Northwest Territories 7 8 11 0 0 26 134 19
Total 6,537 6,150 2,839 1,580 334 17,440 93,406 19
1. There were no cases with a Statement of Defence filed in Nunavut.
2. Excludes cases that were initiated before the province or territory began reporting to the Civil Court Survey.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey.

What issues are dealt with in divorce cases?

The Divorce Act outlines the criteria for child and spousal support and custody of and access to children after a divorce. It requires that lawyers promote negotiation, through means such as mediation, to settle these issues. 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). Marital property issues are generally dealt with at the same time as divorce but under provincial and territorial family law legislation.

Complete information is not available;8 however, findings from the Civil Court Survey show that one or more of the issues of access, custody, property and support were identified in at least 34% of all active divorce cases in the reporting provinces and territories in 2008/2009 (Text Table 4). The most common issues were support and property, each identified in about 80% of cases where an issue had been reported. 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.

Divorce cases can involve multiple issues as they go through court. At least one-quarter of all divorce cases with issues dealt with the three issues of access, custody and support (Text Table 4). At least 19% dealt with these three issues plus property during the life of the case.9

Text table 4
Active divorce cases by issue(s) identified over life of case, 2008/2009
Issues identified Ontario Alberta1 British Columbia Yukon2 Northwest Territories Nunavut Total
number
All divorce cases with the following issue(s) identified:
Access
4,174 3,524 4,311 . 32 17 12,058
Custody
4,335 3,191 6,467 75 56 33 14,157
Property3
3,345 17,233 7,703 . 43 15 28,339
Support
6,596 14,559 8,344 51 51 35 29,636
Access and custody
3,260 2,820 4,188 . 28 17 10,313
Access and custody and support
2,558 2,633 3,876 . 21 15 9,103
Access and custody and property
and support
1,088 2,633 3,024 . 13 4 6,762
Total unique divorce cases with above issue(s) identified 8,829 17,233 9,921 81 76 38 36,178
Total active divorce cases 54,972 29,267 21,955 225 135 50 106,604
  percent
All divorce cases with the following issue(s) identified:
Access
47 20 43 ... 42 45 33
Custody
49 19 65 93 74 87 39
Property3
38 100 78 ... 57 39 78
Support
75 84 84 63 67 92 82
Access and custody
37 16 42 ... 37 45 29
Access and custody and support
29 15 39 ... 28 39 25
Access and custody and property
and support
12 15 30 ... 17 11 19
Total unique divorce cases with above issue(s) identified 100 100 100 100 100 100 100
Percentage of total active divorce cases with issue(s) identified 16 59 45 36 56 76 34
Standard table symbols
1. Alberta data for family cases at the superior court level, which would include all divorce cases, are not available prior to October 2007/2008.
2. In Yukon, information on the issues of access and property is not available.
3. Property issues are generally dealt with at the same time as divorce but under provincial and territorial family law legislation.
Note: The data represented in this table are collected by the Civil Court Survey from the operational systems used to register and track civil court proceedings in the reporting provinces and territories. 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. The degree of under reporting is unknown. Data are not available for Nova Scotia. Categories are not mutually exclusive.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey.

How long are divorce cases active in court?

In 2008/2009, one-half of active divorce cases in the reporting provinces and territories were new cases started that year (Table 2a). Another one-quarter (26%) were initiated the year before and continued activity into 2008/2009. One-tenth (11%) of all active cases were more than four years old.

There is some provincial variation in the length of divorce cases. In Ontario, almost 60% of the active divorce cases in 2008/2009 were initiated that year, with 4% older than four years (Table 2a). Alberta and Yukon tended to have a larger proportion of older divorce cases with almost one-quarter (24%) more than four years old.

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). In Alberta and Nunavut, a greater proportion of divorce cases are older than other family cases. In Alberta, for example, 24% of divorce cases were more than four years old compared to 3% for other family cases. In British Columbia and the Northwest Territories, the reverse trend was true—the proportion of other family cases more than four years old was greater than that of divorce cases.

Family cases, including divorce cases, may flow in and out of court as issues are resolved. Unlike criminal cases, where charges against the accused are disposed of and cases are considered completed, family court cases may involve issues, such as child support, custody and access, that take time to resolve due to their complexity or level of conflict between the parties. Cases may also be brought back to court for variation on decisions previously made. Thus, cases may span over a number of years, but they may not necessarily have had activity in every year. One way of examining this phenomenon is to follow newly initiated cases over a period of years.

Complete information for all cases initiated in 2005/2006 is available for five of the reporting provinces and territories: Nova Scotia, Ontario, British Columbia, Yukon and Nunavut. Examining these cases for the four-year period ending in 2008/2009 shows that there is a fairly steep decline in activity over time. In particular, about one-half of these cases had activity the year after initiation, ranging from 47% in Yukon to 65% in Nunavut (Chart 1). At least one-tenth of divorce cases initiated in 2005/2006 in Ontario, British Columbia and Yukon continued to have court activity into the third year. The figures were higher for Nova Scotia (19%) and Nunavut (25%). By the fourth year, activity had declined to 3% of cases in Ontario up to 10% of cases in Nunavut.

Chart 1
Decline in activity for divorce cases initiated in 2005/2006 over four year period

Description

Chart 1 Decline in activity for divorce cases initiated in 2005/2006 over four year period

Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey

Two-thirds (67%) of the divorce cases that remained active into 2008/2009 were contested cases and at least 32% had dealt with the three issues of access, custody and support during the case.

In all five jurisdictions, family cases not involving divorce were less likely than divorce cases to be active the year following initiation (Chart 2).

Chart 2
Steeper decline in activity for all other family cases (non-divorce) initiated in 2005/2006, over same four year period

Description

Chart 2 Steeper decline in activity for all other family cases (non-divorce) initiated in 2005/2006, over same four year period

Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey

What kinds of court activity accompany divorce cases?

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. There may be documents filed and other events, such as hearings or conferences that move cases forward through the civil court process. These types of events have been defined by the Civil Court Survey as process events. Other events, defined as disposition events, resolve or dispose of part or all of a case. These include judgments and other decisions made to settle, withdraw or dismiss a case, among others.

As divorce cases proceeded through court in 2008/2009, most case events (82%) were process events (Table 3). 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). 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%). Almost all divorce cases had at least one document filing during the year.

There are more document filings the first year of a case than in subsequent years of activity. For cases initiated in 2005/2006, in British Columbia, for example, filings declined from representing three-quarters of all events the first year to just over one-half (52%) the following year (Chart 3).11 A decrease would be expected since there are certain documents required and associated with case initiation procedures and the early stages of a case.

Chart 3
Divorce cases initiated in 2005/2006 by event activity over four years

Description

Chart 3 Divorce cases initiated in 2005/2006 by event activity over four years

Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey

Pre-trial hearings made up 6% of all process events for active divorce cases in 2008/2009, while hearing adjournments accounted for 5% (Table 3). In 2008/2009, about one in five cases had a pre-trial hearing held during the year in most of the reporting provinces and territories (Chart 4).

Chart 4
Active divorce cases in 2008/2009 by type of event during the year

Description

Chart 4 Active divorce cases in 2008/2009 by type of event during the year

1. Excludes Ontario. Ontario figures include trial hearings for uncontested divorces. An uncontested trial is a trial in which only the party making the claim provides evidence and submissions. The figures are therefore not comparable.
Note: Data for Alberta for the vast majority of these event categories are not available, therefore Alberta has been excluded from this chart.
Source: Statistics Canada, Canadian Centre for Justice Statistics, Civil Court Survey.

How often will divorce cases come to trial?

Divorce cases rarely reach the trial stage. In 2008/2009, less than 1% of all active divorce cases in Yukon, Northwest Territories and Nunavut, and 2% of cases in Nova Scotia and British Columbia, had a trial during the year (Chart 4).12

For cases initiated in 2005/2006 in four of the reporting provinces and territories, Nova Scotia, British Columbia, Yukon and Nunavut, 3% had a trial during the next four years.13 One-tenth of these trials were held within the first six months of the case, while 29% were held between six months and one year and 45% were held during the second year.

How quickly are decisions reached in divorce cases?

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). The largest proportion was judgments, accounting for 16% of all events in 2008/2009.

For divorce cases, the first occurrence of a disposition commonly takes place soon after case initiation. In almost one-half (48%) of the active divorce cases in reporting provinces and territories in 2008/2009, the first disposition occurred within three months of case initiation, ranging from 29% in Nova Scotia to 53% in Ontario (Table 4).14 In another 29% of divorce cases, the first disposition occurred between three and six months after case initiation. A judgment was the first disposition in almost all divorce cases with a disposition (91%).

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. Divorce cases may involve many judgments over time as various issues, like custody, access, and support are resolved. At least one judgment of some kind was made in 63% of all active divorce cases in six of the reporting provinces and territories in 2008/2009 (data for Alberta are not available) (Chart 4).

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. In 2008/2009, about 4% of all active divorce cases in six of the reporting provinces and territories were settled or withdrawn by the parties involved or dismissed by the court (data for Alberta are not available) (Chart 4).

Summary

There are many complexities to the civil court process and differences among the provinces and territories in the management of civil cases. 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. Findings show that divorce cases account for more than one-tenth of all civil court cases, and more than one-third of all family cases proceeding through court in 2008/2009.

Each year, civil courts handle new divorce cases, as well as ongoing divorce cases from a prior year. New cases accounted for about one-half of all divorce cases proceeding through civil court in the seven provinces and territories in 2008/2009. 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. Most of the activity throughout the divorce cases was the filing of documents. 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.

Detailed data tables

Table 1 Divorce caseload, initiated and active divorce cases, 2005/2006 to 2008/2009

Table 2a Active divorce cases in 2008/2009 by time since initiation

Table 2b All other active family cases (non-divorce) in 2008/2009 by time since initiation

Table 3 Events in active divorce cases by type of event, 2008/2009

Table 4 Elapsed time from case initiation to first disposition for active divorce cases, 2008/2009

Methodology

Description of the Civil Court Survey
The objective of the Civil Court Survey (CCS) is to develop and maintain a national database of information on civil court events and cases. The survey is intended to be a census of all civil court activity in Canada. It collects microdata on court events at both the superior and provincial and territorial court levels. Appeal courts, federal courts (e.g., Tax Court of Canada) and the Supreme Court of Canada are out of scope for this survey.

Data limitations
The collection of data is from administrative records stored in civil court automated information systems. Given that the data are derived from records originally kept for non-statistical purposes, complete survey information is not always available. Of note for this article is the fact that judgment information related to corollary issues, such as custody, access, support and property may be under reported. Findings are limited to divorce cases where the information is available. The degree of under reporting is unknown. Given that the data collection methodology requires the existence of detailed operational information systems that have not yet been developed in all jurisdictions, it will take time for the survey to achieve full coverage.

Reference and collection period
The reference period is the 12-month fiscal period between April 1st and March 31st. Data are collected quarterly in the month following the end of the quarter (July, October, January and April).

References

Ambert, Anne-Marie. 2009. Divorce Facts, Causes, and Consequences. Contemporary Family Trends. The Vanier Institute of the Family. Ottawa.

Beaupré, Pascale and Elisabeth Cloutier. 2007. Navigating Family Transitions: Evidence from the General Social Survey. Statistics Canada Catalogue no. 89-625-XWE. Ottawa, Ontario.
www.statcan.gc.ca/pub/89-625-x/89-625-x2007002-eng.htm (accessed March 3, 2010).

Department of Justice Canada. 2002. Final Federal-Provincial-Territorial Report on Custody and Access and Child Support: Putting Children First. November 2002.

Department of Justice Canada. 2006a. Department of Justice Inventory of Government-Based Family Justice Services. Family, Children and Youth section. Ottawa.
www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/tool-util/apps/fjis-rsgjf/rep-rap/index.asp (accessed March 3, 2010).

Department of Justice Canada. 2006b. Divorce Law: Questions and Answers. Family, Children and Youth section. Ottawa.
www.justice.gc.ca/eng/pi/fcy-fea/lib-bib/pub/divorce/intro.html (accessed March 3, 2010).

Divorce Act (1985, c. 3 (2ndSupp.))

Douglas, Kristen. 2001. Divorce Law in Canada. Law and Government Division, Government of Canada.
http://dsp-psd.pwgsc.gc.ca/Collection-R/LoPBdP/CIR/963-e.htm (accessed March 3, 2010).

Statistics Canada. 1997. Gentlemen, Jane F., and Evelyn Park. Divorce in the 1990s. Health reports Vol. 9, No. 2. Statistics Canada. Ottawa.

Statistics Canada. 2007. Family Portrait: Continuity and Change in Canadian Families and Households in 2006, 2006 Census. Statistics Canada Catalogue number 97-553-XWE. September 2007.
www12.statcan.ca/census-recensement/2006/as-sa/97-553/index-
eng.cfm?CFID=1201364&CFTOKEN=39558307

Statistics Canada. 2008a. 30 and 50 year total divorce rates per 1,000 marriages, Canada, provinces and territories, annual (rate per 1,000 marriages). CANSIM Table 101-6511.

Statistics Canada. 2008b. Divorces and crude divorce rates, Canada, provinces and territories, annual. CANSIM Table 101-6501.

Statistics Canada. 2008c. Divorces, by reason for marital breakdown, Canada, provinces and territories, annual (number). CANSIM Table 101-6516.

Statistics Canada. 2008d. Report on the Demographic Situation in Canada 2005 and 2006. Statistics Canada Catalogue number 91-209-X, July 2008.
www.statcan.gc.ca/pub/91-209-x/91-209-x2004000-eng.htm (accessed March 3, 2010).

Notes

  1. Two of the reporting provinces, Nova Scotia and Ontario, have some regions of the province served by unified family courts.
  2. In regions not served by a unified family court, these issues, under provincial or territorial legislation, would be dealt with in provincial or territorial (lower) court, as opposed to superior court.
  3. 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. 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.
  4. 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. In some jurisdictions, for example Alberta, estate matters are not considered family matters.
  5. 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). 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.
  6. Between June and October 2006, the General Social Survey interviewed 23,608 people aged 15 or older living in a private household in the 10 provinces. 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. It also included those who did not have a separation period prior to their divorce. 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. Beaupré, Pascale and Elisabeth Cloutier. 2007. Statistics Canada Catalogue no. 89-625-XWE. Ottawa. Ontario.
  7. 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. 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. The analysis excluded records with "not stated" or "don't know" responses.
  8. The data used for this analysis are collected by the Civil Court Survey from the operational systems used to register and track civil court proceedings in the reporting provinces and territories. These systems may not capture specific judgment information related to corollary issues, such as custody, access, support and property. Information related to these issues may be under reported and findings are limited to divorce cases where the information is available. The degree of under reporting is unknown.
  9. Details on access, custody, property and support arrangements ordered by the court are not available from the Civil Court Survey due to the data reporting limitations mentioned in Note 8.
  10. Note that for the Civil Court Survey, some document filing events (e.g., orders) may also represent a disposition event (e.g., judgment).
  11. Proportions were calculated excluding initiation events for comparability between years of activity. Complete information for cases initiated in 2005/2006 is not available for Alberta and Northwest Territories since they began reporting to the Civil Court Survey in 2007/2008 and 2006/2007, respectively.
  12. Ontario figures include trial hearings for uncontested divorces. An uncontested trial is a trial in which only the party making the claim provides evidence and submissions. The figures are therefore not comparable.
  13. Excludes Ontario (see Note 12). Data for Alberta and Northwest Territories are not available for this time period, therefore they are also excluded.
  14. Excludes those cases that were initiated prior to when the province or territory began reporting to the Civil Court Survey.
  15. Data on access, custody, support judgments are not available for Nova Scotia, Alberta and Northwest Territories. Data on access judgments are not available for Yukon. Excludes those cases that were initiated prior to when the province or territory began reporting to the Civil Court Survey. Information related to these issues may be under reported and findings are limited to divorce cases where the information is available. Details on access, custody and support arrangements ordered by the court are not available from the Civil Court Survey due to the data reporting limitations mentioned in Note 8.
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