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

Full Document:  

Act current to 2021-04-05 and last amended on 2021-03-01. Previous Versions

Appeals

Marginal note:Appeal to appellate court

  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

  • Marginal note: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.

General

  •  (1) [Repealed, 2019, c. 16, s. 17]

  • Marginal note:Affidavit re removal of barriers to religious remarriage

    (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.

  • Marginal note: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.

  • Marginal note: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).

  • Marginal note: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.

  • Marginal note: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.

  • 1990, c. 18, s. 2
  • 2019, c. 16, s. 17

Marginal note:Recognition of foreign divorce

  •  (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.

  • Marginal note: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.

  • Marginal note: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.

  • R.S., 1985, c. 3 (2nd Supp.), s. 22
  • 2019, c. 16, s. 18

Marginal note:Recognition of foreign order that varies parenting or contact order

  •  (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.

  • Marginal note: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.

  • Marginal note:Effect of non-recognition

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

  • 2019, c. 16, s. 19

Marginal note:Provincial laws of evidence

  •  (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.

  • Marginal note:Canada Evidence Act

    (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.

  • R.S., 1985, c. 3 (2nd Supp.), s. 23
  • 2002, c. 8, s. 183
  • 2019, c. 16, s. 21
 
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