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For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.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