8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage

(2) Breakdown of a marriage is established only if

• • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
  • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
    • (i) committed adultery, or
    • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

AP Commentary: The recognizable grounds for divorce in Canada are:

1. The parties living separate and apart for at least one year
2. Adultery
3. Cruelty

Calculation of period of separation

(3) For the purposes of paragraph (2)(a),

• • (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and
  • (b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated
    • (i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or
    • (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

AP Commentary: In determining the date of separation, both parties do not need to jointly agree to the separation. All that is required is for either of them to have had the intention to live separate and apart from the other.

If the parties reconciled for more than 90 during the one year separation period, the count of the one year separation period must start afresh.

Parties may still live separate and apart while living together in the same home. The court will consider the following factors in deciding if the parties are in fact separated:

• Is there a withdrawal from matrimonial obligations
• Presence or absence of sexual relations
• How the spouses present to the public at social or family events
• If they eat meals together
• How household tasks are performed

How the parties filed their taxes

6 (1) If an application for an order under section 16.1 is made in a divorce proceeding or corollary relief proceeding to a court in a province and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding to a court in that other province.

Transfer of variation proceeding in respect of parenting order

(2) If an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and the child of the marriage in respect of whom the variation order is sought is habitually resident in another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

(3) [Repealed, 2019, c. 16, s. 5]

Exclusive jurisdiction

(4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.

Jurisdiction — application for contact order

6.1 (1) If a court in a province is seized of an application for a parenting order in respect of a child, the court has jurisdiction to hear and determine an application for a contact order in respect of the child.

Jurisdiction — no pending variation proceeding

(2) If no variation proceeding related to a parenting order in respect of a child is pending, a court in a province in which the child is habitually resident has jurisdiction to hear and determine an application for a contact order, an application for a variation order in respect of a contact order or an application for a variation order in respect of a parenting order brought by a person referred to in subparagraph 17(1)(b)(ii), unless the court considers that a court in another province is better placed to hear and determine the application, in which case the court shall transfer the proceeding to the court in that other province.

No jurisdiction — contact order

(3) For greater certainty, if no parenting order has been made in respect of a child, no application for a contact order may be brought under this Act in respect of the child.

Removal or retention of child of marriage

• 6.2 (1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied
  • (a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;
  • (b) that there has been undue delay in contesting the removal or retention by those persons; or
  • (c) that a court in the province in which the child is present is better placed to hear and determine the application.

Transfer

(2) If the court in the province in which the child was habitually resident immediately before the removal or retention is satisfied that any of paragraphs (1)(a) to (c) apply,

• • (a) the court shall transfer the application to the court in the province in which the child is present; and
  • (b) the court may transfer any other application under this Act in respect of the parties to the court in the province in which the child is present.

Federal Court

(3) If after the child’s removal from or retention in a province, two proceedings are commenced on the same day as described in subsection 3(3), 4(3) or 5(3), this section prevails over those subsections and the Federal Court shall determine which court has jurisdiction under this section. A reference in this section to “court in the province in which the child was habitually resident” is to be read as “Federal Court”.

Child habitually resident outside Canada

• 6.3 (1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.

Exceptional circumstances

(2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including

• • (a) whether there is a sufficient connection between the child and the province;
  • (b) the urgency of the situation;
  • (c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and
  • (d) the importance of discouraging child abduction.

AP Commentary: Where a parent removes a child from a province without permission, the court in the jurisdiction of the non-removing parent still retains jurisdiction to make an order regarding the child. The court can transfer jurisdiction to the court in the province where the child has been moved if the parties have expressly or impliedly agreed to the move.

4 (1) A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

• • (a) either former spouse is habitually resident in the province at the commencement of the proceeding; or
  • (b) both former spouses accept the jurisdiction of the court.

AP Commentary: Just as with an Application for a divorce, a person may bring an application seeking corollary relief such as child support, spousal support, or parenting orders, even if only one of the parties habitually lives in the province.

Alternatively, a court can have jurisdiction to deal with these issues, if both parties accept the court’s jurisdiction.

Jurisdiction if two proceedings commenced on different days

(2) If corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days, and the proceeding that was commenced first is not discontinued, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding is deemed to be discontinued.

Jurisdiction if two proceedings commenced on same day

(3) If corollary relief proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day, and neither proceeding is discontinued within 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:

• • (a) if at least one of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;
  • (b) if neither of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and
  • (c) in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

AP Commentary: If a valid divorce has been issued in a foreign jurisdiction, a Canadian court does not have the jurisdiction to determine corollary issues under the Divorce Act. If you obtained a divorce outside of Canada, speak to one of our lawyers so we can develop a strategy to invalidate the foreign divorce so you can make your corollary relief claims under the Divorce Act. You may or look to the Family Law Act to make your

2 (1) In this Act,

age of majority, in respect of a child, means the age of majority as determined by the laws of the province where the child habitually resides, or, if the child habitually resides outside of Canada, eighteen years of age; (majeur)

appellate court, in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal; (cour d’appel)

applicable guidelines means

• • (a) if both spouses or former spouses are habitually resident in the same province at the time an application is made for a child support order or for a variation order in respect of a child support order or the amount of a child support is to be calculated or recalculated under section 25.01 or 25.1, and that province has been designated by an order made under subsection (5), the laws of the province specified in the order, and
  • (b) in any other case, the Federal Child Support Guidelines

child of the marriage means a child of two spouses or former spouses who, at the material time,

• • (a) is under the age of majority and who has not withdrawn from their charge, or
  • (b) is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life

child support order means an order made under subsection 15.1(1);

competent authority means, except as otherwise provided, a tribunal or other entity in a country other than Canada, or a subdivision of such a country, that has the authority to make a decision under their law respecting any subject matter that could be dealt with under this Act;

contact order means an order made under subsection 16.5(1);

corollary relief proceeding means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order;

court, in respect of a province, means

• • (a) for the Province of Ontario, the Superior Court of Justice,
  • (a.1) for the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court of the Province,
  • (b) for the Province of Quebec, the Superior Court,
  • (c) for the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Supreme Court of the Province,
  • (d) for the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, the Court of Queen’s Bench for the Province, and
  • (e) for Yukon or the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice,

and includes such other court in the province the judges of which are appointed by the Governor General as is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this Act;

custody[Repealed, 2019, c. 16, s. 1]

custody order[Repealed, 2019, c. 16, s. 1]

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

• • (a) health;
  • (b) education;
  • (c) culture, language, religion and spirituality; and
  • (d) significant extra-curricular activities;

divorce proceeding means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a parenting order;

family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law;

family justice services means public or private services intended to help persons deal with issues arising from separation or divorce;

family member includes a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household;

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

• • (a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
  • (b) sexual abuse;
  • (c) threats to kill or cause bodily harm to any person;
  • (d) harassment, including stalking;
  • (e) the failure to provide the necessaries of life;
  • (f) psychological abuse;
  • (g) financial abuse;
  • (h) threats to kill or harm an animal or damage property; and
  • (i) the killing or harming of an animal or the damaging of property

Federal Child Support Guidelines means the guidelines made under section 26.1

legal adviser means any person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person in any proceeding under this Act;

order assignee means a minister, member, agency or public body to whom a support order is assigned under subsection 20.1(1);

parenting order means an order made under subsection 16.1(1);

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time;

provincial child support service means any service, agency or body designated in an agreement with a province under subsection 25.01(1) or 25.1(1)

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

• • (a) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
  • (b) a person who has contact with the child under a contact order;

spousal support order means an order made under subsection 15.2(1);

spouse includes, in subsection 6(1) and sections 15.1 to 16.96, 21.1, 25.01 and 25.1, a former spouse;

support order means a child support order or a spousal support order;

variation order means an order made under subsection 17(1);

variation proceeding means a proceeding in a court in which either or both former spouses seek a variation order.

Child of the marriage

(2) For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes

• • (a) any child for whom they both stand in the place of parents; and
  • (b) any child of whom one is the parent and for whom the other stands in the place of a parent.

Term not restrictive

(3) The use of the term “application” to describe a proceeding under this Act in a court shall not be construed as limiting the name under which and the form and manner in which that proceeding may be taken in that court, and the name, manner and form of the proceeding in that court shall be such as is provided for by the rules regulating the practice and procedure in that court.

(4) The use in section 21.1 of the terms “affidavit” and “pleadings” to describe documents shall not be construed as limiting the name that may be used to refer to those documents in a court and the form of those documents, and the name and form of the documents shall be such as is provided for by the rules regulating the practice and procedure in that court.

Provincial child support guidelines

(5) The Governor in Council may, by order, designate a province for the purposes of the definition applicable guidelines in subsection (1) if the laws of the province establish comprehensive guidelines for the determination of child support that deal with the matters referred to in section 26.1. The order shall specify the laws of the province that constitute the guidelines of the province.

Amendments included

(6) The guidelines of a province referred to in subsection (5) include any amendments made to them from time to time.