1. This Act may be cited as the Divorce Act.

Interpretation

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• • (a) is under the age of majority and who has not withdrawn from their charge, or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.

3 (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.

AP Commentary: Both parties do not need to reside in a province for them to file for divorce in that province. People erroneously believe that they can only file for a divorce in Canada if they got married here. That is not true. Parties can file for a divorce in any province the have been living in Canada for at least 1 year before the date of the application, regardless of where the go married.

Jurisdiction if two proceedings commenced on different days

(2) If divorce proceedings between the same spouses 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 divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding is deemed to be discontinued.

Jurisdiction if two proceedings commenced on same day

(3) If divorce proceedings between the same spouses 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 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 spouses last maintained a habitual residence in common if one of the 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 two cases are started in different courts on the same day, if the matter includes a parenting issue, the province where the child lives has jurisdiction. If there are no parenting issues, then the province where BOTH last lived retains jurisdiction provided one of the spouses still lives there.

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

5 (1) A court in a province has jurisdiction to hear and determine a variation 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: Spouses can start variation proceedings in a province where one of the parties ordinarily lives.

Jurisdiction if two proceedings commenced on different days

(2) If variation 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 variation proceeding was commenced first has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter and the second variation proceeding is deemed to be discontinued.

AP Commentary: if both parties start proceedings to vary, the court in which the first proceedings started, will have jurisdiction unless it is discontinued.

Jurisdiction if two proceedings commenced on same day

(3) If variation 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 variation order in respect of 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 variation order in respect of 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.

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.

Exercise of jurisdiction by judge

7 The jurisdiction conferred on a court by this Act to grant a divorce shall be exercised only by a judge of the court without a jury.

AP Commentary: A divorce can only be granted by a Judge.  Parties cannot agree that they are now divorced. They can agree to have the divorce proceed uncontested for example but a divorce order must be granted by a judge.

Parties to a Proceeding

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

AP Commentary: In all things relating to the children of the marriage, the best interests of the child is the paramount consideration.

Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

AP Commentary: This puts an obligation on separating parties to ensure that they shield children from the conflict surrounding a court process. Children should not be privy to information about the court proceedings and the negativity that could flow from that.

Family dispute resolution process

7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

AP Commentary: There is a shift in the family courts away from the adversarial process and toward alternative dispute resolution processes such as mediation and collaborative family law.

Complete, accurate and up-to-date information

7.4 A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.

AP Commentary:

Duty to comply with orders

7.5 For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.

AP Commentary: Parties often feel like because there has been a change in circumstances, they can choose to ignore the terms of a court order. It is important to remember that unless you have an order that overrides or sets aside a previous

Certification

7.6 Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under sections 7.1 to 7.5.

AP Commentary: These duties are: ensuring the best interests of the child, shielding children from conflict between the parties, using alternative dispute resolution processes, providing up-to-date and accurate information and complying with court orders.

Reconciliation

7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding

• • (a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and
  • (b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.

Duty to discuss and inform

(2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

• • (a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;
  • (b) to inform the person of the family justice services known to the legal adviser that might assist the person
    • (i) in resolving the matters that may be the subject of an order under this Act, and
    • (ii) in complying with any order or decision made under this Act; and
  • (c) to inform the person of the parties’ duties under this Act.

 Certification

(3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.

AP Commentary: Lawyers are obliged to advise their clients where appropriate, of reconciliation and to encourage them to attend marriage counselling where it could facilitate reconciliation.

Court

Purpose of section

7.8 (1) The purpose of this section is to facilitate

• • (a) the identification of orders, undertakings, recognizances, agreements or measures that may conflict with an order under this Act; and
  • (b) the coordination of proceedings.

Information regarding other orders or proceedings

(2) In a proceeding for corollary relief and in relation to any party to that proceeding, the court has a duty to consider if any of the following are pending or in effect, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so:

• • (a) a civil protection order or a proceeding in relation to such an order;
  • (b) a child protection order, proceeding, agreement or measure; or
  • (c) an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.

In order to carry out the duty, the court may make inquiries of the parties or review information that is readily available and that has been obtained through a search carried out in accordance with provincial law, including the rules made under subsection 25(2).

Definition of civil protection order

(3) In this section, civil protection order means a civil order that is made to protect a person’s safety, including an order that prohibits a person from

• • (a) being in physical proximity to a specified person or following a specified person from place to place;
  • (b) contacting or communicating with a specified person, either directly or indirectly;
  • (c) attending at or being within a certain distance of a specified place or location;
  • (d) engaging in harassing or threatening conduct directed at a specified person;
  • (e) occupying a family home or a residence; or
  • (f) engaging in family violence.

AP Commentary: The goal with this section is to ensure coordination among different legal proceedings such as criminal proceedings and CAS proceedings that have an impact on a family court order.

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

9 [Repealed, 2019, c. 16, s. 9]

• • (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.

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.

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.

13 On taking effect, a divorce granted under this Act has legal effect throughout Canada.

14 On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.

15 [Repealed, 2019, c. 16, s. 11]

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.

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.

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.

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

16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

• • (a) either or both spouses; or
  • (b) a person, other than a 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.

Interim order

(2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

Application by person other than spouse

(3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

Contents of parenting order

(4) The court may, in the order,

• • (a) allocate parenting time in accordance with section 16.2;
  • (b) allocate decision-making responsibility in accordance with section 16.3;
  • (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and
  • (d) provide for any other matter that the court considers appropriate.

Terms and conditions

(5) The court may make an 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.

Family dispute resolution process

(6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

Relocation

(7) The order may authorize or prohibit the relocation of the child.

Supervision

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

Prohibition on removal of child

(9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

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.

Notice

16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

Content of notice

(2) The notice must set out

• • (a) the expected date of the relocation;
  • (b) the address of the new place of residence and contact information of the person or child, as the case may be;
  • (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and
  • (d) any other information prescribed by the regulations.

Exception

(3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of 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 relocation is a move that significantly impacts a child’s relationship with others. In these cases, formal notice is required at least 60 days before the proposed move. 

Relocation authorized

16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

• • (a) the relocation is authorized by a court; or
  • (b) the following conditions are satisfied:
    • (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in
      • (A) a form prescribed by the regulations, or
      • (B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and
    • (ii) there is no order prohibiting the relocation.

Content of form

(2) The form must set out

• • (a) a statement that the person objects to the proposed relocation;
  • (b) the reasons for the objection;
  • (c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and
  • (d) any other information prescribed by the regulations.

Best interests of child — additional factors to be considered

16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

• • (a) the reasons for the relocation;
  • (b) the impact of the relocation on the child;
  • (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;
  • (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;
  • (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;
  • (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and
  • (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.
• AP Commentary: In deciding whether to authorize the relocation or not, the court must consider the best interest of the child, including the factors listed in s.19.92(1).

Factor not to be considered

(2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Burden of proof — person who intends to relocate child

16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

Burden of proof — person who objects to relocation

(2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

Burden of proof — other cases

(3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

AP Commentary: The burden of proving that a relocation is in the best interest of the child depends on the parenting arrangement. That is, if it’s a shared parenting arrangement or if the child lives primarily with one parent.

If the child lives primarily with one parent, the other parent who is challenging the move has the burden of proving that the move is not in the child’s bet interest.

If the child has a shared parenting arrangement, then the party who is planning to move has the burden of showing that the move is in the child’s best interest.

Where there is no order (or in some cases if only an interim order is in place), agreement or arbitral award dealing with parenting time, each party would have to demonstrate whether the move would or wouldn’t be in the child’s best interest.

Power of court — interim order

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

Costs relating to exercise of parenting time

16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

AP Commentary: A court may order that the increased cost of exercising parenting time due to a relocation such as accommodation and transportation be shared between the parties. 

Notice — persons with contact

16.96 (1) A person who has contact with a child of the marriage under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.

Notice — significant impact

(2) If the change is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in place of residence, in the form prescribed by the regulations, and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by the regulations.

Exception

(3) Despite subsections (1) and (2), the court may, on application, order that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or modify them, if the court is of the opinion that it is appropriate to do so, 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:  If a person with a contact order with a child is moving residences or relocating, they have to notify the parent(s) of the change of address except a court has waived or modified this requirement. In the case of a relocation, they will be required to provide notice using the prescribed forms and include information on how they expect to continue exercising contact give the change.

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.

18 The following definitions apply in this section and in sections 18.1 to 19.1.

competent authority means a court that has the authority to make an order or another entity that has the authority to make a decision with respect to support under this Act. (autorité compétente)

designated authority means a person or entity that is designated by a province to exercise the powers or perform the duties and functions set out in sections 18.1 to 19.1 within the province. (autorité désignée)

designated jurisdiction means a jurisdiction outside Canada — whether a country or a political subdivision of a country — that is designated under an Act that relates to the reciprocal enforcement of orders relating to support, of the province in which either of the former spouses resides. (État désigné)

responsible authority means a person or entity that, in a designated jurisdiction, performs functions that are similar to those performed by the designated authority under subsection 19(4). (autorité responsable)

Inter-Jurisdictional Proceedings Between Provinces

Receipt and Sending of Applications

If former spouses reside in different provinces

18.1 (1) If the former spouses are resident in different provinces, either of them may, without notice to the other,

• • (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, sections 18.2 and 18.3 and provincial law, with any necessary modifications, to the extent that the provincial law is not inconsistent with this Act.

Application

(3) For the purpose of subsection (1), a former spouse shall submit an application to the designated authority of the province in which they are resident.

Sending application to 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 designated authority of the province in which the applicant believes the respondent is habitually resident.

Sending application to competent authority in respondent’s province

(5) Subject to subsection (9), the designated authority that receives the application under subsection (4) shall send it to the competent authority in its province. 

Provincial child support service

(6) 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

(7) 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

(8) If the court or authorized person was unable to serve the documents under subsection (7), they shall return the application to the designated authority referred to in subsection (5).

Respondent resident in another province

(9) If the designated authority knows that the respondent is habitually resident in another province, it shall send the application to the designated authority of that province.

Respondent’s habitual residence unknown

(10) If the habitual residence of the respondent is unknown, the designated authority shall return the application to the designated authority referred to in subsection (3).

Applicant need not be served

(11) Service of the notice and documents or information referred to in subsection (7) on the applicant is not required.

Adjournment of proceeding

(12) 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

(13) 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 designated authority in the province of the applicant in order to obtain the evidence.

Dismissal of application

(14) If the further evidence required under subsection (13) is not received by the court within 12 months after the day on which the court makes a 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

(15) 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.

Application of certain provisions

(16) 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 (15).

Broad interpretation of documents

(17) 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.

AP Commentary:  section 18.1 sets out the procedure for seeking a variation where the parties live in different province or if the spouse lives in a foreign designated jurisdiction.

Application to court

18.2 (1) If an application is made to a court in a province under paragraph 17(1)(a) for a variation order in respect of a support order and the respondent habitually resides in a different province, the respondent may, within 40 days after being served with the application, request that the court convert the application into an application under subsection 18.1(3).

Conversion and sending of application

(2) Subject to subsection (3) and despite section 5, the court that receives the request shall direct that the application made under paragraph 17(1)(a), along with the evidence in support of it, be considered as an application under subsection 18.1(3), and shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made.

Exception

(3) If the application under paragraph 17(1)(a) is accompanied by an application under paragraph 17(1)(b) for a variation order in respect of a parenting order, the court that receives the request shall issue the direction referred to in subsection (2) only if it considers it appropriate to do so in the circumstances.

Application of certain provisions

(4) Once the designated authority receives the copy of the application under subsection (2), subsections 18.1(2), (4), (5), (7) and (12) to (17) apply, with any necessary modifications, in respect of that application.

No action by respondent

18.3 (1) If an application is made to a court in a province under paragraph 17(1)(a) for a variation order in respect of a support order, the respondent habitually resides in a different province and the respondent does not file an answer to the application or request a conversion under subsection 18.2(1), the court to which the application was made

• • (a) shall hear and determine the application in accordance with section 17 in the respondent’s absence, if it is satisfied that there is sufficient evidence to do so; or
  • (b) if it is not so satisfied, may direct, despite section 5, that the application, along with the evidence in support of it, be considered as an application under subsection 18.1(3), in which case it shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made.

Assignment of support order

(2) Before the court hears and determines an application under paragraph (1)(a), the court shall take into consideration

• • (a) whether the support order has been assigned under subsection 20.1(1); and
  • (b) if the support order has been assigned, whether the order assignee received notice of the application and did not request a conversion under subsection 18.2(1).

Application of certain provisions

(3) If paragraph (1)(b) applies, then subsections 18.1(2), (4), (5), (7) and (12) to (17) apply, with any necessary modifications, in respect of the application.

AP Commentary:  section 18.2 sets out the procedure for converting a variation proceeding to an application where the Respondent lives in a different province.

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.

Definition of court

20 (1) In this section, court, in respect of a province, has the meaning assigned by subsection 2(1) and includes such other court having jurisdiction in the province as is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this section.

Legal effect of orders and decisions throughout Canada

(2) An order made under this Act in respect of support, parenting time, decision-making responsibility or contact and a provincial child support service decision that calculates or recalculates the amount of child support under section 25.01 or 25.1 have legal effect throughout Canada.

Enforcement

(3) An order or decision that has legal effect throughout Canada under subsection (2) may be

• • (a) registered in any court in a province and enforced in like manner as an order of that court; or
  • (b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Variation of orders

(4) Notwithstanding subsection (3), a court may only vary an order that has legal effect throughout Canada pursuant to subsection (2) in accordance with this Act.

AP Commentary:  Orders made under the Divorce Act are enforceable throughout Canada and can only be registered in a court in any province.  

Assignment of order

20.1 (1) A support order may be assigned to

• • (a) any minister of the Crown for Canada designated by the Governor in Council;
  • (b) any minister of the Crown for a province, or any agency in a province, designated by the Lieutenant Governor in Council of the province;
  • (c) any member of the Legislative Assembly of Yukon, or any agency in Yukon, designated by the Commissioner of Yukon;
  • (d) any member of the Legislative Assembly of the Northwest Territories, or any agency in the Northwest Territories, designated by the Commissioner of the Northwest Territories;
  • (e) any member of the Legislative Assembly of Nunavut, or any agency in Nunavut, designated by the Commissioner of Nunavut; or
  • (f) a public body referred to in Article 36 of the 2007 Convention, as defined in section 28.

Rights

(2) A minister, member or agency referred to in subsection (1) to whom an order is assigned is entitled to the payments due under the order, and has the same right to be notified of, and to participate in, proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments.

Rights — public body

(3) A public body referred to in paragraph (1)(f) to whom a decision of a State Party that has the effect of varying a child support order has been assigned is entitled to the payments due under the decision, and has the same right to participate in proceedings under this Act, to recognize and enforce the decision or if the recognition of this decision is not possible, to obtain a variation order, as the person who would otherwise be entitled to the payments.

Definition of State Party

(4) For the purpose of subsection (3), State Party has the same meaning as in section 28.

AP Commentary:  where a spouse begins to receive social assistance, any support they are entitled to can be assigned to a ministry or agency.

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.

21.1 (1) [Repealed, 2019, c. 16, s. 17]

(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.

22.1 (1) On application by an interested person, a court in a province that has a sufficient connection with the matter shall recognize a decision made by a competent authority that has the effect of varying, rescinding or suspending a parenting order or contact order, unless

• • (a) the child concerned is not habitually resident in the country other than Canada in which the competent authority is located or that competent authority of that other country would not have had jurisdiction if it applied substantially equivalent rules related to the jurisdiction as those that are set out in section 6.3;
  • (b) the decision was made, except in an urgent case, without the child having been provided with the opportunity to be heard, in violation of fundamental principles of procedure of the province;
  • (c) a person claims that the decision negatively affects the exercise of their parenting time or decision-making responsibility or contact under a contact order, and the decision was made, except in an urgent case, without the person having been given an opportunity to be heard;
  • (d) recognition of the decision would be manifestly contrary to public policy, taking into consideration the best interests of the child; or
  • (e) the decision is incompatible with a later decision that fulfils the requirements for recognition under this section.

Effect of recognition

(2) The court’s decision recognizing the competent authority’s decision is deemed to be an order made under section 17 and has legal effect throughout Canada.

Effect of non-recognition

(3) The court’s decision refusing to recognize the competent authority’s decision has legal effect throughout Canada.

AP Commentary:  A court in a province with sufficient connection to the matter shall recognize a foreign order that varies a parenting or contact order except the exceptions outlined in s.22.1(1)(a) – (d) apply.

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.  

24 A document offered in a proceeding under this Act that purports to be certified or sworn by a judge or an officer of a court shall, unless the contrary is proved, be proof of the appointment, signature or authority of the judge or officer and, in the case of a document purporting to be sworn, of the appointment, signature or authority of the person before whom the document purports to be sworn.

AP Commentary: Unless there is evidence to the contrary, a sworn document tendered in evidence is considered to be authentic.

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.

25.01 (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 calculate the amount of child support in accordance with the applicable guidelines and set it out in a decision.

Application of law of province

(2) 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.

Effect of calculation by provincial child support service

(3) The amount of child support calculated under this section is the amount payable by the spouse who is subject to a provincial child support service decision.

Liability

(4) A spouse who is subject to a provincial child support service decision becomes liable to pay the amount of child support calculated under this section on the day, or on the expiry of a 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 respect to amount

(5) Either or both spouses who do not agree with the amount of the child support calculated under this section may apply to a court of competent jurisdiction for an order under section 15.1 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.

Effect of application

(6) The liability to pay the amount of child support under subsection (4) continues while the determination of the application under subsection (5) is pending.

Recalculation of amount or application for order

(7) After a spouse subject to a provincial child support service decision becomes liable to pay an amount of child support under subsection (4), either or both spouses may have the amount of child support recalculated under section 25.1 or apply to a court of competent jurisdiction for an order under section 15.1.

AP Commentary: Provinces may be authorized to have a provincial child support service that calculates the amount of child support payable.

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.

26 (1) The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect and, without limiting the generality of the foregoing, may make regulations

• • (a) respecting the establishment, mandate and operation of a central registry of divorce proceedings;
  • (b) providing for uniformity in the rules made under section 25;
  • (c) respecting the framework for the calculation or recalculation of the amount of child support by the provincial child support service under section 25.01 or 25.1; and
  • (d) prescribing any matter or thing that by this Act is to be or may be prescribed.

Regulations prevail

(2) Regulations made under paragraph (1)(b) prevail over rules made under section 25.

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).

27 (1) The Governor in Council may, by order, authorize the Minister of Justice to prescribe a fee to be paid by any person to whom a service is provided under this Act or the regulations.

Agreements

(2) The Minister of Justice may, with the approval of the Governor in Council, enter into an agreement with the government of any province respecting the collection and remittance of any fees prescribed pursuant to subsection (1).