(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
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- (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
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- (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,
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- (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)
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- (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.