An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act (S.C. 2019, c. 16)
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Assented to 2019-06-21
R.S., c. 3 (2nd Supp.)Divorce Act (continued)
13 (1) Subsections 17(1) to (3) of the Act are replaced by the following:
Marginal note:Variation order
17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:2007, c. 14, s. 1
(2) Subsections 17(5) and (5.1) of the Act are replaced by the following:
Marginal note: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).
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 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.
Marginal note: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).
Marginal note: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).
(3) Section 17 of the Act is amended by adding the following after subsection (6.5):
Marginal note: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.
(4) Subsection 17(9) of the Act is repealed.
(5) Subsection 17(11) of the Act is replaced by the following:
Marginal note: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.
Marginal note:1993, c. 8, ss. 2 and 3 and s. 4(1), c. 28, s. 78 (Sch. III, item 43); 1997, c. 1, ss. 6 and 7; 2002, c. 7, s. 159; 2014, c. 2, s. 33
14 Sections 17.1 to 19 of the Act are replaced by the following:
Proceedings Between Provinces and Between a Province and a Designated Jurisdiction To Obtain, Vary, Rescind or Suspend Support Orders or To Recognize Decisions of Designated Jurisdictions
Definitions
Marginal note:Definitions
18 The following definitions apply in this section and in sections 18.1 to 19.1.
- competent authority
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
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
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
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
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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.
Conversion of Applications
Marginal note: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).
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note:Assignment of support order
(2) Before the court hears and determines an application under paragraph (1)(a), the court shall take into consideration
Marginal note: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.
Proceedings Between a Province and a Designated Jurisdiction
Receipt and Sending of Designated Jurisdictions’ Applications
Marginal note:If applicant resides in designated jurisdiction
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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note:Return of application to responsible authority
(8) The designated authority shall return the application to the responsible authority in the designated jurisdiction.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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.
Marginal note: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).
Marginal note: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 Decisions of Designated Jurisdiction
Marginal note: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.
Marginal note: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.
Marginal note: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.
Legal Effect, Enforcement, Compliance and Assignment
- Date modified: