Separation and Divorce: Duties under the Divorce Act
In March of 2021, changes to the Federal Divorce Act came into effect. One of the major changes to the Divorce Act is expectations of parties to a divorce. The Divorce Act creates obligations and duties for you, as a party to the separation and/or divorce. You are obligated to take certain actions during, and following, your separation and divorce. This article helps you understand your duties and responsibilities during this difficult time.
These duties begin as soon as you have commenced a separation. However, they continue throughout the separation and divorce process, and beyond. You must, for example, continue acting in your child’s best interests even after you have been divorced.
Best Interest of Child
Perhaps the most important duty for any family, you must continue to act in your child’s best interests during a family separation. Any person who has parenting time, decision-making responsibility, or contact with a child must ensure all parenting time, major decisions and contact are done in a way that is consistent with the child’s “best interests” (Section 7.1)
“Best interests of the child” is a specific set of legal factors found at s. 16 of the Divorce Act; however, the primary consideration should always be the child’s physical, emotional and psychological safety, security and well-being. You have a responsibility to make decisions, and facilitate contact with the other parent, in a way that protects your child’s best interests.
Protection of Children from Conflict
Although related to protecting the children’s best interests, this is a separate responsibility you, as a separating parent, has. You must, to the best of your ability, protect any children from conflict arising from your separation and/or divorce. (Section 7.2)
You must make every effort to avoid fighting with your spouse, speaking negatively about your spouse, or discussing any issues between yourself and your spouse in front of the children.
Family Dispute Resolution Process
If appropriate, you must try to resolve parenting, support and property issues using a family dispute resolution process such as mediation, collaborative law, parenting coordination, or arbitration. (Section 7.3)
You have a duty to avoid litigation to the best of your ability. Sometimes this is not possible, and we recognize that. However, where it is possible to resolve disputes outside of Court, you are obligated to try.
W Law has lawyers certified as Family Mediators and Parenting Coordinators through the Early Family Dispute Resolution Office with the Saskatchewan Ministry of Justice. All our family lawyers are experienced with Family Mediation, and guiding clients through this process. We are happy to discuss out-of-court solutions with you.
Complete, Accurate and Up-To-Date Information
You must provide your former partner with complete, accurate and up-to-date information that might be required by the Divorce Act. (Section 7.4)
This information could include financial records, income tax returns, recent paystubs, corporate financial statements, childcare provider names and addresses, receipts for children’s activities, or information about a child’s health care or schooling. There is a wide range of information you are required to provide during a separation or divorce. This information ensures fair property division, appropriate child and spousal support, and protecting a child’s best interests. Failure to provide this information can have serious legal consequences. It is best to begin gathering this information now to provide your lawyer.
Duty to Comply with Orders
Where it is necessary, litigation can result the Court making an Order the parties must follow. A person who is subject to an Order made under the Divorce Act must comply with that order until it is no longer in effect.
If you have already been through a court process, you must continue to follow the Court Orders regarding parenting, support, or other issues until a new Court Order is issued. For example, if your income changed significantly since the Order was granted, you cannot unilaterally change support amounts you are paying unless the Court Order allows for a change or review.
Often, changing Court Orders can be a relatively simple process if both parties agree a change is needed. Your lawyer at W Law can assist you with this process.
Other Resources
Separations and divorces are a time of great upheaval and change. There are many things to consider, and this process can be highly emotional. However, there are several resources available to you to help you understand this process and move it forward.
- Marriage Certificates: An original, certified copy is required to start divorce proceedings.
- Family Law Saskatchewan: Free information and resources on family law in Saskatchewan
- Making Plans: A guide for parents to understand parenting after separation published by the Federal Department of Justice.
- Parenting Plan Guide and Template: A guide and template to creating parenting plans by the Association of Family and Conciliation Courts
- The Federal Child Support Guidelines: 8 step guide to determining child support published by the Federal Department of Justice.
- What Happens Next?: A child-friendly guide to understanding family separation, published by the Federal Department of Justice.
- Parenting after Separation and Divorce Program: This free course, delivered by the Province of Saskatchewan, must be completed by both parents if any Family Law Division court actions are proceeding. A high-conflict parenting course is also available. Even if you do not have a court action proceeding, we recommend you take this course.
- Maintenance Enforcement Office: Enforcing previous support orders and agreements by garnishment. Program administered by the Province of Saskatchewan.
- Child Support Service: Free service provided by the Province of Saskatchewan. Parents can apply to either commence child support without starting a court action or vary child support following changes to a payor’s income. This service is administered by the Province of Saskatchewan, and either the child support payor or recipient may apply. This service does not apply to spousal support.
- iHeal: safety planning tool/phone app to escape family violence
- The Women’s Centre Safety Plan: Guide and resources on safely escaping family violence.
- TalkingParents: Free co-parenting communication and planning app.
- OurFamilyWizard: Co-parenting communication app including in-app messaging, family lawyer access, scheduling planner, financial contribution tracking, and a tone-checking tool.
- Online Therapy Unit: Free Online Cognitive Behavior Therapy for several mental health concerns, including general mental health, alcohol use, chronic health conditions, depression, and anxiety.
- Family Litigation Divorce Loans: Provided by Greenbridge Capital, qualified applicants may borrow against a future property settlement to cover essential expenses and fund legal fees. Note that interest rates in Litigation Loans are typically quite high. W Law does not endorse, or profit from, funding family litigation using Litigation Loans.
W Law and Ammy Murray are pleased to offer both Family Mediation and Parenting Coordination services. Ammy is a practicing lawyer in addition to being a recognized Family Mediator and Parenting Coordinator. She was called to the Saskatchewan Bar in 2012 and has practiced with W Law since 2025. In addition to her work as a family lawyer, Ammy has been recognized as both a Family Mediator and a Parenting Coordinator by the Ministry of Justice in the Province of Saskatchewan since 2020 (Family Mediator) and 2021 (Parenting Coordinator).
