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

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Act current to 2021-11-17 and last amended on 2021-03-01. Previous Versions

Jurisdiction (continued)

Marginal note:Jurisdiction in variation proceedings

  •  (1) A court in a province has jurisdiction to hear and determine a variation proceeding if

    • (a) either former spouse is habitually resident in the province at the commencement of the proceeding; or

    • (b) both former spouses accept the jurisdiction of the court.

  • Marginal note:Jurisdiction if two proceedings commenced on different days

    (2) If variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days, and the proceeding that was commenced first is not discontinued, the court in which a variation proceeding was commenced first has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter and the second variation proceeding is deemed to be discontinued.

  • Marginal note:Jurisdiction if two proceedings commenced on same day

    (3) If variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day, and neither proceeding is discontinued within 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:

    • (a) if at least one of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;

    • (b) if neither of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and

    • (c) in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

Marginal note:Transfer of proceeding if parenting order applied for

  •  (1) If an application for an order under section 16.1 is made in a divorce proceeding or corollary relief proceeding to a court in a province and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding to a court in that other province.

  • Marginal note:Transfer of variation proceeding in respect of parenting order

    (2) If an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and the child of the marriage in respect of whom the variation order is sought is habitually resident in another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

  • (3) [Repealed, 2019, c. 16, s. 5]

  • Marginal note:Exclusive jurisdiction

    (4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.

Marginal note:Jurisdiction — application for contact order

  •  (1) If a court in a province is seized of an application for a parenting order in respect of a child, the court has jurisdiction to hear and determine an application for a contact order in respect of the child.

  • Marginal note:Jurisdiction — no pending variation proceeding

    (2) If no variation proceeding related to a parenting order in respect of a child is pending, a court in a province in which the child is habitually resident has jurisdiction to hear and determine an application for a contact order, an application for a variation order in respect of a contact order or an application for a variation order in respect of a parenting order brought by a person referred to in subparagraph 17(1)(b)(ii), unless the court considers that a court in another province is better placed to hear and determine the application, in which case the court shall transfer the proceeding to the court in that other province.

  • Marginal note:No jurisdiction — contact order

    (3) For greater certainty, if no parenting order has been made in respect of a child, no application for a contact order may be brought under this Act in respect of the child.

Marginal note:Removal or retention of child of marriage

  •  (1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied

    • (a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;

    • (b) that there has been undue delay in contesting the removal or retention by those persons; or

    • (c) that a court in the province in which the child is present is better placed to hear and determine the application.

  • Marginal note:Transfer

    (2) If the court in the province in which the child was habitually resident immediately before the removal or retention is satisfied that any of paragraphs (1)(a) to (c) apply,

    • (a) the court shall transfer the application to the court in the province in which the child is present; and

    • (b) the court may transfer any other application under this Act in respect of the parties to the court in the province in which the child is present.

  • Marginal note:Federal Court

    (3) If after the child’s removal from or retention in a province, two proceedings are commenced on the same day as described in subsection 3(3), 4(3) or 5(3), this section prevails over those subsections and the Federal Court shall determine which court has jurisdiction under this section. A reference in this section to “court in the province in which the child was habitually resident” is to be read as “Federal Court”.

Marginal note:Child habitually resident outside Canada

  •  (1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.

  • Marginal note:Exceptional circumstances

    (2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including

    • (a) whether there is a sufficient connection between the child and the province;

    • (b) the urgency of the situation;

    • (c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and

    • (d) the importance of discouraging child abduction.

Marginal note:Exercise of jurisdiction by judge

 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.

Duties

Parties to a Proceeding

Marginal note:Best interests of child

 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.

Marginal note:Protection of children from conflict

 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.

Marginal note:Family dispute resolution process

 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.

Marginal note:Complete, accurate and up-to-date information

 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.

Marginal note:Duty to comply with orders

 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.

Marginal note:Certification

 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.

Legal Adviser

Marginal note:Reconciliation

  •  (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

    • (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.

  • Marginal note: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

    • (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.

  • Marginal note: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.

Court

Marginal note:Purpose of section

  •  (1) The purpose of this section is to facilitate

    • (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.

  • Marginal note: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:

    • (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).

  • Marginal note: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

    • (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.

Divorce

Marginal note:Divorce

  •  (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

  • Marginal note:Breakdown of marriage

    (2) Breakdown of a marriage is established only if

    • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

    • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

      • (i) committed adultery, or

      • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

  • Marginal note:Calculation of period of separation

    (3) For the purposes of paragraph (2)(a),

    • (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

    • (b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

      • (i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

      • (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

 
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