Divorce Act (R.S.C., 1985, c. 3 (2nd Supp.))

Act current to 2016-06-21 and last amended on 2015-02-26. Previous Versions

Priority

Marginal note:Priority to child support
  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • 1997, c. 1, s. 2.

Custody Orders

Marginal note:Order for custody
  •  (1) A court of competent jurisdiction may, on application by either or both spouses or by any other person, make an order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage.

  • Marginal note:Interim order for custody

    (2) Where an application is made under subsection (1), the court may, on application by either or both spouses or by any other person, make an interim order respecting the custody of or the access to, or the custody of and access to, any or all children of the marriage pending determination of the application under subsection (1).

  • Marginal note:Application by other person

    (3) A person, other than a spouse, may not make an application under subsection (1) or (2) without leave of the court.

  • Marginal note:Joint custody or access

    (4) The court may make an order under this section granting custody of, or access to, any or all children of the marriage to any one or more persons.

  • Marginal note:Access

    (5) Unless the court orders otherwise, a spouse who is granted access to a child of the marriage has the right to make inquiries, and to be given information, as to the health, education and welfare of the child.

  • Marginal note:Terms and conditions

    (6) The court may make an order under this section for a definite or indefinite period or until the happening of a specified event and may impose such other terms, conditions or restrictions in connection therewith as it thinks fit and just.

  • Marginal note:Order respecting change of residence

    (7) Without limiting the generality of subsection (6), the court may include in an order under this section a term requiring any person who has custody of a child of the marriage and who intends to change the place of residence of that child to notify, at least thirty days before the change or within such other period before the change as the court may specify, any person who is granted access to that child of the change, the time at which the change will be made and the new place of residence of the child.

  • Marginal note:Factors

    (8) In making an order under this section, the court shall take into consideration only the best interests of the child of the marriage as determined by reference to the condition, means, needs and other circumstances of the child.

  • Marginal note:Past conduct

    (9) In making an order under this section, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the ability of that person to act as a parent of a child.

  • Marginal note:Maximum contact

    (10) In making an order under this section, the court shall give effect to the principle that a child of the marriage should have as much contact with each spouse as is consistent with the best interests of the child and, for that purpose, shall take into consideration the willingness of the person for whom custody is sought to facilitate such contact.

Variation, Rescission or Suspension of Orders

Marginal note:Order for variation, rescission or suspension
  •  (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, prospectively or retroactively,

    • (a) a support order or any provision thereof on application by either or both former spouses; or

    • (b) a custody order or any provision thereof on application by either or both former spouses or by any other person.

  • Marginal note:Application by other person

    (2) A person, other than a former spouse, may not make an application under paragraph (1)(b) without leave of the court.

  • Marginal note:Terms and conditions

    (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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note:Factors for custody order

    (5) Before the court makes a variation order in respect of a custody order, the court shall satisfy itself that there has been a change in the condition, means, needs or other circumstances of the child of the marriage occurring since the making of the custody order or the last variation order made in respect of that order, as the case may be, and, in making the variation order, the court shall take into consideration only the best interests of the child as determined by reference to that change.

  • Marginal note:Variation order

    (5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change of circumstances of the child of the marriage, and the court shall make a variation order in respect of access that is in the best interests of the child.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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]

  • Marginal note:Maximum contact

    (9) In making a variation order varying a custody order, the court shall give effect to the principle that a child of the marriage should have as much contact with each former spouse as is consistent with the best interests of the child and, for that purpose, where the variation order would grant custody of the child to a person who does not currently have custody, the court shall take into consideration the willingness of that person to facilitate such contact.

  • Marginal note: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.

  • Marginal note:Copy of order

    (11) Where a court makes a variation order in respect of a support order or a custody 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.

  • R.S., 1985, c. 3 (2nd Supp.), s. 17;
  • 1997, c. 1, s. 5;
  • 2007, c. 14, s. 1.
 
Date modified: