26.1 (1) The Governor in Council may establish guidelines respecting orders for child support, including, but without limiting the generality of the foregoing, guidelines

• • (a) respecting the way in which the amount of an order for child support is to be determined;
  • (b) respecting the circumstances in which discretion may be exercised in the making of an order for child support;
  • (c) authorizing a court to require that the amount payable under an order for child support be paid in periodic payments, in a lump sum or in a lump sum and periodic payments;
  • (d) authorizing a court to require that the amount payable under an order for child support be paid or secured, or paid and secured, in the manner specified in the order;
  • (e) respecting the circumstances that give rise to the making of a variation order in respect of a child support order;
  • (f) respecting the determination of income for the purposes of the application of the guidelines;
  • (g) authorizing a court to impute income for the purposes of the application of the guidelines; and
  • (h) respecting the production of information relevant to an order for child support and providing for sanctions and other consequences when that information is not provided.

Principle

(2) The guidelines shall be based on the principle that spouses have a joint financial obligation to maintain the children of the marriage in accordance with their relative abilities to contribute to the performance of that obligation.

• Definition of order for child support

(3) In subsection (1), order for child support means

• • (a) an order or interim order made under section 15.1;
  • (b) a variation order in respect of a child support order;
  • (c) an order made under subsection 18.1(15) or 19(13) in respect of a child support order; or
  • (d) an order made under subsection 28.5(5) or 29.1(5).

25.1 (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to recalculate, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information.

Application of law of province

(1.1) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.

Deeming of income

(1.2) For the purposes of subsection (1), if a spouse does not provide the income information, a provincial child support service may deem the income of that spouse to be the amount determined in accordance with the method of calculation set out in the law of the province or, if no such method is specified, in accordance with the method prescribed by the regulations.

Effect of recalculation

(2) Subject to subsection (5), the amount of a child support order as recalculated pursuant to this section shall for all purposes be deemed to be the amount payable under the child support order.

Effect of deeming of income

(2.1) Subject to subsection (5), the income determined under subsection (1.2) shall be deemed to be the spouse’s income for the purposes of the child support order.

Liability

(3) The spouse against whom a child support order was made becomes liable to pay the recalculated amount on the day, or on the expiry of the period specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.

Disagreement with recalculation

(4) If either or both spouses do not agree with the recalculated amount of the child support order, either or both of them may, before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations, apply to a court of competent jurisdiction

• • (a) in the case of an interim order made under subsection 15.1(2), for an order under section 15.1;
  • (b) in the case of a provincial child support service decision made under section 25.01, for an order under section 15.1; or
  • (c) in any other case, if they are former spouses, for an order under paragraph 17(1)(a).

Effect of application

(5) Where an application is made under subsection (4), the operation of subsection (3) is suspended pending the determination of the application, and the child support order continues in effect.

Withdrawal of application

(6) If an application made under subsection (4) is withdrawn before it is determined, the spouse against whom the child support order was made becomes liable to pay the recalculated amount on the day on which the spouse would have become liable had the application not been made.

Definition of child support order

(7) In this section, child support order has the same meaning as in subsection 2(1) and also means an interim order made under subsection 15.1(2), a provincial child support service decision made under section 25.01 and a variation order made under paragraph 17(1)(a).

AP Commentary: In recalculating child support, a provincial child support service may deem income to a party who does not provide their income information.

There are mechanisms for dealing with disagreements with a recalculation.

Ministerial activities

25.2 The Minister of Justice may conduct activities related to matters governed by this Act, including undertaking research.

25 (1) In this section, competent authority, in respect of a court, or appellate court, in a province means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

Rules

(2) Subject to subsection (3), the competent authority may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules

• • (a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;
  • (b) respecting the conduct and disposition of any proceedings under this Act without an oral hearing;
  • (b.1) respecting the application of section 23.1;
  • (c) regulating the sittings of the court;
  • (d) respecting the fixing and awarding of costs;
  • (e) prescribing and regulating the duties of officers of the court;
  • (f) respecting the transfer of proceedings under this Act to or from the court; and
  • (g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.

Exercise of power

(3) The power to make rules for a court or appellate court conferred by subsection (2) on a competent authority shall be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court conferred on that authority by the laws of the province.

Not statutory instruments

(4) Rules made pursuant to this section by a competent authority that is not a judicial or quasi-judicial body shall be deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

AP Commentary: Provinces and territories have the power to regulate practice and procedure and any other matters considered expedient to attain the ends of justice and carry into effect the purposes and provisions of the Divorce Act.

23 (1) Subject to this or any other Act of Parliament, the laws of evidence of the province in which any proceedings under this Act are taken, including the laws of proof of service of any document, apply to such proceedings.

(2) The Canada Evidence Act applies in respect of a proceeding before the Federal Court to determine, under subsection 3(3), 4(3), 5(3) or 6.2(3), which court retains jurisdiction.

AP Commentary: The Canada Evidence Act and the applicable provincial laws of evidence apply to proceedings under the Divorce Act.

Means of presenting submissions

23.1 If the parties to a proceeding are habitually resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules regulating the practice and procedure in that court, make an order on the basis of the evidence and the submissions of the parties, whether presented orally before the court or by affidavit or any means of telecommunication permitted by the rules regulating the practice and procedure in that court.

Official languages

23.2 (1) A proceeding under this Act may be conducted in English or French, or in both official languages of Canada.

Language rights

(2) In any proceeding under this Act,

• • (a) any person has the right to use either official language, including to
    • (i) file pleadings or other documents,
    • (ii) give evidence, or
    • (iii) make submissions;
  • (b) the court shall, at the request of any person, provide simultaneous interpretation from one official language into the other;
  • (c) any party to that proceeding has the right to a judge who speaks the same official language as that party or both official languages, as the case may be;
  • (d) any party to that proceeding has the right to request a transcript or recording, as the case may be, of
    • (i) what was said during that proceeding in the official language in which it was said, if what was said was taken down by a stenographer or a sound recording apparatus, and
    • (ii) any interpretation into the other official language of what was said; and
  • (e) the court shall, at the request of any party to that proceeding, make available in that party’s official language of choice any judgment or order that is rendered or made under this Act and that relates to that party.

Original version prevails

(3) In the case of a discrepancy between the original version of a document referred to in paragraph (2)(a) or (e) and the translated text, the original version shall prevail.

Court forms

(4) The court forms relating to any proceedings under this Act shall be made available in both official languages.

AP Commentary: English and French are the official languages for bringing any proceedings under the Divorce Act.  

(2) In any proceedings under this Act, a spouse (in this section referred to as the “deponent”) may serve on the other spouse and file with the court an affidavit indicating

• • (a) that the other spouse is the spouse of the deponent;
  • (b) the date and place of the marriage, and the official character of the person who solemnized the marriage;
  • (c) the nature of any barriers to the remarriage of the deponent within the deponent’s religion the removal of which is within the other spouse’s control;
  • (d) where there are any barriers to the remarriage of the other spouse within the other spouse’s religion the removal of which is within the deponent’s control, that the deponent
    • (i) has removed those barriers, and the date and circumstances of that removal, or
    • (ii) has signified a willingness to remove those barriers, and the date and circumstances of that signification;
  • (e) that the deponent has, in writing, requested the other spouse to remove all of the barriers to the remarriage of the deponent within the deponent’s religion the removal of which is within the other spouse’s control;
  • (f) the date of the request described in paragraph (e); and
  • (g) that the other spouse, despite the request described in paragraph (e), has failed to remove all of the barriers referred to in that paragraph. 

Powers of court where barriers not removed

(3) Where a spouse who has been served with an affidavit under subsection (2) does not

• • (a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serve on the deponent and file with the court an affidavit indicating that all of the barriers referred to in paragraph (2)(e) have been removed, and
  • (b) satisfy the court, in any additional manner that the court may require, that all of the barriers referred to in paragraph (2)(e) have been removed,

the court may, subject to any terms that the court considers appropriate,

• • (c) dismiss any application filed by that spouse under this Act, and
  • (d) strike out any other pleadings and affidavits filed by that spouse under this Act. 

Special case

(4) Without limiting the generality of the court’s discretion under subsection (3), the court may refuse to exercise its powers under paragraphs (3)(c) and (d) where a spouse who has been served with an affidavit under subsection (2)

• • (a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serves on the deponent and files with the court an affidavit indicating genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e); and
  • (b) satisfies the court, in any additional manner that the court may require, that the spouse has genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e).

Affidavits

(5) For the purposes of this section, an affidavit filed with the court by a spouse must, in order to be valid, indicate the date on which it was served on the other spouse.

 Where section does not apply

(6) This section does not apply where the power to remove the barrier to religious remarriage lies with a religious body or official.

AP Commentary:  This section deals with the removal of religious barriers to a remarriage where the other spouse refuses to remove the barriers. This section will not apply where the spouse does not have the power to remove the barriers for e.g. when the barriers are set and removed by religious leaders).

 Recognition of foreign divorce

22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.

Recognition of foreign divorce

(2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.

Other recognition rules preserved

(3) Nothing in this section abrogates or derogates from any other rule of law respecting the recognition of divorces granted otherwise than under this Act.

AP Commentary:  A foreign divorce may be recognized if: (1) the parties were ordinarily resident in that jurisdiction for at least one year prior to the commencement of the divorce proceedings; (2) the divorce was obtained after July 1, 1968 on the basis of the residence of the wife in the foreign jurisdiction determined as if she were an unmarried adult; (3)  other rules of law as applicable.