Appeal to appellate court

21 (1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.

Restriction on divorce appeals

(2) No appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect.

Restriction on order appeals

(3) No appeal lies from an order made under this Act more than thirty days after the day on which the order was made.

Extension

(4) An appellate court or a judge thereof may, on special grounds, either before or after the expiration of the time fixed by subsection (3) for instituting an appeal, by order extend that time.

Powers of appellate court

(5) The appellate court may

• • (a) dismiss the appeal; or
  • (b) allow the appeal and
    • (i) render the judgment or make the order that ought to have been rendered or made, including such order or such further or other order as it deems just, or
    • (ii) order a new hearing where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice.

Procedure on appeals

(6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.

AP Commentary:  An appeal as of right can be made from any Order under the Divorce Act.

19 (1) A former spouse who is resident in a designated jurisdiction may, without notice to the other former spouse,

• • (a) commence a proceeding to obtain, vary, rescind or suspend, retroactively or prospectively, a support order; or
  • (b) request to have the amount of child support calculated or recalculated, if the provincial child support service in the province in which the other former spouse habitually resides provides such a service.

Procedure

(2) A proceeding referred to in paragraph (1)(a) shall be governed by this section and provincial law, with any necessary modifications, to the extent that the provincial law is not inconsistent with this Act.

Application

(3) For the purposes of subsection (1), a former spouse shall submit, through the responsible authority in the designated jurisdiction, an application to the designated authority of the province in which the applicant believes the respondent is habitually resident.

Sending application to competent authority in respondent’s province

(4) After reviewing the application and ensuring that it is complete, the designated authority referred to in subsection (3) shall send it to the competent authority in its province.

Provincial child support service

(5) If the competent authority is a provincial child support service, the amount of child support shall be calculated or recalculated in accordance with section 25.01 or 25.1, as the case may be.

Service on respondent by court

(6) If the competent authority is a court, it or any other person who is authorized to serve documents under the law of the province shall, on receipt of the application, serve the respondent with a copy of the application and a notice setting out the manner in which the respondent shall respond to the application and the respondent’s obligation to provide documents or information as required by the applicable law.

Service not possible — returned application

(7) If the court or authorized person was unable to serve the documents under subsection (6), they shall return the application to the designated authority referred to in subsection (3).

Return of application to responsible authority

(8) The designated authority shall return the application to the responsible authority in the designated jurisdiction.

Applicant need not be served

(9) Service of the notice and documents or information referred to in subsection (6) on the applicant is not required.

Adjournment of proceeding

(10) If the court requires further evidence, it shall adjourn the proceeding. Prior to adjourning, the court may make an interim order.

Request for further evidence

(11) If the court requires further evidence from the applicant, it shall request the designated authority of the province in which the court is located to communicate with the applicant or the responsible authority in the designated jurisdiction in order to obtain the evidence.

Dismissal of application

(12) If the further evidence required under subsection (11) is not received by the court within 12 months after the day on which the court makes the request to the designated authority, the court may dismiss the application referred to in subsection (3) and terminate the interim order. The dismissal of the application does not preclude the applicant from making a new application.

Order

(13) The court may, on the basis of the evidence and the submissions of the former spouses, 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, make a support order or an order varying, rescinding or suspending a support order, retroactively or prospectively.

Provisional order

(14) For greater certainty, if an application under paragraph (1)(a) contains a provisional order that was made in the designated jurisdiction and does not have legal effect in Canada, the court may take the provisional order into consideration but is not bound by it.

Application of certain provisions

(15) Subsections 15.1(3) to (8) and 15.2(3) to (6), section 15.3 and subsections 17(3) to (4.1), (6) to (7), (10) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (13).

Broad interpretation of documents

(16) For greater certainty, if a court receives a document under this section that is in a form that is different from that required by the rules regulating the practice and procedure in that court, or that contains terminology that is different from that used in this Act or the regulations, the court shall give a broad interpretation to the document for the purpose of giving effect to it.

Recognition of decision of designated jurisdiction varying support order

19.1 (1) A former spouse who is resident in a designated jurisdiction may, through the responsible authority in the designated jurisdiction, make an application to the designated authority of the province in which the respondent habitually resides for recognition and, if applicable, for enforcement, of a decision of the designated jurisdiction that has the effect of varying a support order.

Registration and recognition

(2) The decision of the designated jurisdiction shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.

Enforcement

(3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

AP Commentary:  section 19.1 sets out the process for a spouse who lives in another jurisdiction to enforce an order obtained in that jurisdiction, against a spouse who lives in Canada.

17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

• • (a) a support order or any provision of one, on application by either or both former spouses;
  • (b) a parenting order or any provision of one, on application by
    • (i) either or both former spouses, or
    • (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or
  • (c) a contact order or any provision of one, on application by a person to whom the order relates.

AP Commentary:  Parties can change a support or parenting order by bringing a court application. The party seeking the change must show there has been a material change in circumstances in addition to meeting the requirements for obtaining the order in the first place.

The need to show a material change in circumstances is a threshold question for all variation applications.

A material change in circumstances is a change that is substantial, unforeseen and continuing.

Leave of the court

(2) A person to whom the parenting order in question does not relate may make an application under subparagraph (1)(b)(ii) only with leave of the court.

Variation of parenting order

(2.1) If the court makes a variation order in respect of a contact order, it may make an order varying the parenting order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.

Variation of contact order

(2.2) If the court makes a variation order in respect of a parenting order, it may make an order varying any contact order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.

Conditions of order

(3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

AP Commentary:  The law already contemplates an annual review/variation of child support so that the amount of child support payable reflects the amount being earned by the payor parent.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

AP Commentary:  Factors that justify a change in spousal support include failure to disclose financial information by the payor, failure of recipient to become self-sufficient, inflation resulting in decreased purchasing power, justifiable retirement, business failure, termination of child support, declining health, recipient’s increased income,

AP Commentary: an increase in the payor’s income in and of itself does not equate to an entitlement to increased spousal support.

Factors for parenting order or contact order

(5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

Variation order

(5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.

Relocation — change in circumstances

(5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).

Relocation prohibited — no change in circumstances

(5.3) A relocation of a child that has been prohibited by a court under paragraph (1)(b) or section 16.1 does not, in itself, constitute a change in the circumstances of the child for the purposes of subsection (5).

Conduct

(6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

AP Commentary:  Despite popularly held misconceptions, adultery or infidelity have no impact on support orders or variation of such orders.

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Court may take agreement, etc., into account

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

• • (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and
  • (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

AP Commentary:  Reasonable arrangements for the support of a child have included upfront lump sum payments, forgoing equalization payments, transferring assets, and maintaining family residence for the recipient and child.

Priority to child support

(6.6) Section 15.3 applies, with any necessary modifications, when a court is considering an application under paragraph (1)(a) in respect of a child support order and an application under that paragraph in respect of a spousal support order.

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should

• • (a) recognize any economic advantages or disadvantages to the former spouses arising from the marriage or its breakdown;
  • (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;
  • (c) relieve any economic hardship of the former spouses arising from the breakdown of the marriage; and
  • (d) in so far as practicable, promote the economic self-sufficiency of each former spouse within a reasonable period of time.
• (8) [Repealed, 1997, c. 1, s. 5]
• (9) [Repealed, 2019, c. 16, s. 13]

Limitation

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

• • (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and
  • (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

Copy of order

(11) Where a court makes a variation order in respect of a support order, parenting order or contact order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

AP Commentary:  It is imperative to remember that a motion to change is not an appeal and that a court’s role in this process is not determine the correctness of the final order.

Courts are reluctant to change final orders on an interim/temporary basis except the circumstances are compelling.

16.2 (1) Parenting time may be allocated by way of a schedule.

Day-to-day decisions

(2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

AP Commentary: When making orders that relate to children which includes parenting time, decision making responsibilities and contact with a non parent, the only consideration is the best interest of the child.

The factors that must be considered in determining a child’s best interest are listed and it includes family violence and it’s impact on decision making and parenting of the child.

A person’s past conduct is not relevant unless it has directly relates to decision making, parenting time and contact.

A court may create a parenting schedule, order that parenting time or exchanges be supervised and set limits on the geographic area within which a child must continue to live.

With respect to decision making, a court may order sole or shared decision making responsibility for major decisions affecting the child. Major decisions include: Education, Health, Religion, Culture, Spirituality and significant extra-curricular activities. However, except a court specifically orders otherwise, day to day decisions affecting a child would be made by the parent who is exercising parenting time.

Contact order

16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.

Interim order

(2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.

Leave of the court

(3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.

Factors in determining whether to make order

(4) In determining whether to make a contact order under this section, the court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.

Contents of contact order

(5) The court may, in the contact order,

• • (a) provide for contact between the applicant and the child in the form of visits or by any means of communication; and
  • (b) provide for any other matter that the court considers appropriate.

Terms and conditions

(6) The court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

Supervision

(7) The order may require that the contact or transfer of the child from one person to another be supervised.

Prohibition on removal of child

(8) The order may provide that a child shall not be removed from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Variation of parenting order

(9) If a parenting order in respect of the child has already been made, the court may make an order varying the parenting order to take into account a contact order it makes under this section, and subsections 17(3) and (11) apply as a consequence with any necessary modifications.

AP Commentary: Contact Orders ensure that the child continues to spend time with the special people in their lives such as grand parents and extended family.

Leave of the court is required to seek a contact order.

Parenting plan

16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

Definition of parenting plan

(2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Change in Place of Residence

Non-application

16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.

Notice

16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

Form and content of notice

(2) The notice shall be given in writing and shall set out

• • (a) the date on which the change is expected to occur; and
  • (b) the address of the new place of residence and contact information of the person or child, as the case may be.

Exception

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, including where there is a risk of family violence.

Application without notice

(4) An application referred to in subsection (3) may be made without notice to any other party.

AP Commentary: A person can change the place of residence of a child without a court order or the consent of the other party, if such change will not have a significant impact on the other party’s parenting time. They do need to give notice of the change of address to the other parent or anyone with a contact order for that child, except where there is a risk of family violence.

16 (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

Primary consideration

(2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

Factors to be considered

(3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

• • (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;
  • (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;
  • (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;
  • (d) the history of care of the child;
  • (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;
  • (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;
  • (g) any plans for the child’s care;
  • (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;
  • (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;
  • (j) any family violence and its impact on, among other things,
    • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and
    • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and
  • (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

Factors relating to family violence

(4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

• • (a) the nature, seriousness and frequency of the family violence and when it occurred;
  • (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;
  • (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;
  • (d) the physical, emotional and psychological harm or risk of harm to the child;
  • (e) any compromise to the safety of the child or other family member;
  • (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;
  • (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and
  • (h) any other relevant factor.

Past conduct

(5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

Parenting time consistent with best interests of child

(6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

Parenting order and contact order

(7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

Parenting Orders