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Section 15.3 of the Divorce Act: Priority to child support

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15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

AP Commentary: Where a reduced amount of spousal support or no spousal support is ordered because of the priority given to the payment of child support, if there is a change in child support that reduces or terminates child support, spousal support can be reviewed and may now be payable.

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Section 15.2 of the Divorce Act: Spousal support order

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15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

    • (a) the length of time the spouses cohabited;
    • (b) the functions performed by each spouse during cohabitation; and
    • (c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

AP Commentary: A court may Order interim or final spousal support. The amount may be period sums or a lump sum amount. The duration may be fixed or indefinite.

It is important to know that an indefinite duration does not mean forever. It simply means that the duration of support is not fixed at the time the Order is made however, support can always be varied or terminated if there is a material change in circumstances.

In making a spousal support order, the court is to only consider the condition, means, needs and other circumstances of each spouse and shall not consider any misconduct of a spouse in the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

    • (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;
    • (b) apportion between the 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 spouses arising from the breakdown of the marriage; and
    • (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

AP Commentary: It is important to note that parties are able to negotiate and agree to release/waive spousal support. The Agreement to release spousal support has to be impeccably negotiated with the party waiving spousal support obtaining independent legal advice. Even then, there is always a risk that a court could set the agreement to release spousal support aside because it does not meet the objectives of the Divorce Act.

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Section 15.1 of the Divorce Act: Child support order

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15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), 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.

AP Commentary: While courts are required to make child support orders in accordance with the child support guidelines, a court still retains the jurisdiction to deviate from the guidelines. It worth noting that courts will very rarely depart from the guidelines as predictability and consistency are important to the courts and separating parties.

However, where arrangements have been made that benefit a child and so the application of the guidelines would be unfair, the courts could order an amount that is different from what is prescribed under the child support guidelines.

Reasons

(6) Where the court awards, pursuant to subsection (5), 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

(7) Notwithstanding subsection (3), 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

(8) For the purposes of subsection (7), 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.

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Section 12 of the Divorce Act: Effective date generally

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12 (1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.

Special circumstances

(2) Where, on or after rendering a judgment granting a divorce,

    • (a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and
    • (b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,

the court may order that the divorce takes effect at such earlier time as it considers appropriate.

Effective date where appeal

(3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal, takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal, if no appeal has been instituted within that time.

Certain extensions to be counted

(4) For the purposes of subsection (3), the time fixed by law for instituting an appeal from a decision on an appeal includes any extension thereof fixed pursuant to law before the expiration of that time or fixed thereafter on an application instituted before the expiration of that time.

No late extensions of time for appeal

(5) Notwithstanding any other law, the time fixed by law for instituting an appeal from a decision referred to in subsection (3) may not be extended after the expiration of that time, except on an application instituted before the expiration of that time.

Effective date where decision of Supreme Court of Canada

(6) A divorce in respect of which an appeal has been taken to the Supreme Court of Canada, unless voided on the appeal, takes effect on the day on which the judgment on the appeal is rendered.

Certificate of divorce

(7) Where a divorce takes effect in accordance with this section, a judge or officer of the court that rendered the judgment granting the divorce or, where that judgment has been appealed, of the appellate court that rendered the judgment on the final appeal, shall, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.

Conclusive proof

(8) A certificate referred to in subsection (7), or a certified copy thereof, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.

AP Commentary: A divorce takes effect automatically, 31 days after the divorce judgement is granted. Where special circumstances apply, the time may be shortened.

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Section 11 of the Divorce Act: Duty of court — bars

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11 (1) In a divorce proceeding, it is the duty of the court

    • (a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;
    • (b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and
    • (c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.

AP Commentary: A court will dismiss an application for divorce if the parties are colluding and there is actually no breakdown in the relationship.  

Also, before a divorce is granted, if the parties have children, the courts ensure that arrangements have been made with respect to child support. If it is not clear that reasonable arrangements have been made for the support of the child, the courts will stay (pause) the granting of divorce until this is done.

Revival

(2) Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).

Condonation

(3) For the purposes of this section, a continuation or resumption of cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute condonation.

Definition of collusion

(4) In this section, collusion means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the exercise of parenting time or decision-making responsibility.

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Section 10 of the Divorce Act: Duty of court — reconciliation

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10 (1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Adjournment

(2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall

    • (a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and
    • (b) with the consent of the spouses or in the discretion of the court, nominate
      • (i) a person with experience or training in marriage counselling or guidance, or
      • (ii) in special circumstances, some other suitable person,

to assist the spouses to achieve a reconciliation.

AP Commentary: If in the course of the court proceedings, it becomes evident to a judge that reconciliation is a possibility, the judge must adjourn for at least 14 day to give the spouses an opportunity to explore reconciliation. If the spouses agree, the court may appoint a marriage counsellor.  

Resumption

(3) Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.

Nominee not competent or compellable

(4) No person nominated by a court under this section to assist spouses to achieve a reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose. AP Commentary: The marriage counsellor appointed under this section cannot be called as a witness to disclose what was said to them by either spouse.

Evidence not admissible

(5) Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings.

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