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

Full Document:  

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

General (continued)

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.

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.

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.

Marginal note:Means of presenting submissions

 If the parties to a proceeding are habitually resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules regulating the practice and procedure in that court, make an order on the basis of the evidence and the submissions of the parties, 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.

Marginal note:Official languages

  •  (1) A proceeding under this Act may be conducted in English or French, or in both official languages of Canada.

  • Marginal note:Language rights

    (2) In any proceeding under this Act,

    • (a) any person has the right to use either official language, including to

      • (i) file pleadings or other documents,

      • (ii) give evidence, or

      • (iii) make submissions;

    • (b) the court shall, at the request of any person, provide simultaneous interpretation from one official language into the other;

    • (c) any party to that proceeding has the right to a judge who speaks the same official language as that party or both official languages, as the case may be;

    • (d) any party to that proceeding has the right to request a transcript or recording, as the case may be, of

      • (i) what was said during that proceeding in the official language in which it was said, if what was said was taken down by a stenographer or a sound recording apparatus, and

      • (ii) any interpretation into the other official language of what was said; and

    • (e) the court shall, at the request of any party to that proceeding, make available in that party’s official language of choice any judgment or order that is rendered or made under this Act and that relates to that party.

  • Marginal note:Original version prevails

    (3) In the case of a discrepancy between the original version of a document referred to in paragraph (2)(a) or (e) and the translated text, the original version shall prevail.

  • Marginal note:Court forms

    (4) The court forms relating to any proceedings under this Act shall be made available in both official languages.

Marginal note:Proof of signature or office

 A document offered in a proceeding under this Act that purports to be certified or sworn by a judge or an officer of a court shall, unless the contrary is proved, be proof of the appointment, signature or authority of the judge or officer and, in the case of a document purporting to be sworn, of the appointment, signature or authority of the person before whom the document purports to be sworn.

Definition of competent authority

  •  (1) In this section, competent authority, in respect of a court, or appellate court, in a province means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

  • Marginal note:Rules

    (2) Subject to subsection (3), the competent authority may make rules applicable to any proceedings under this Act in a court, or appellate court, in a province, including, without limiting the generality of the foregoing, rules

    • (a) regulating the practice and procedure in the court, including the addition of persons as parties to the proceedings;

    • (b) respecting the conduct and disposition of any proceedings under this Act without an oral hearing;

    • (b.1) respecting the application of section 23.1;

    • (c) regulating the sittings of the court;

    • (d) respecting the fixing and awarding of costs;

    • (e) prescribing and regulating the duties of officers of the court;

    • (f) respecting the transfer of proceedings under this Act to or from the court; and

    • (g) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Act.

  • Marginal note:Exercise of power

    (3) The power to make rules for a court or appellate court conferred by subsection (2) on a competent authority shall be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court conferred on that authority by the laws of the province.

  • Marginal note:Not statutory instruments

    (4) Rules made pursuant to this section by a competent authority that is not a judicial or quasi-judicial body shall be deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

Marginal note:Provincial child support service — calculation of child support

  •  (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to calculate the amount of child support in accordance with the applicable guidelines and set it out in a decision.

  • Marginal note:Application of law of province

    (2) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.

  • Marginal note:Effect of calculation by provincial child support service

    (3) The amount of child support calculated under this section is the amount payable by the spouse who is subject to a provincial child support service decision.

  • Marginal note:Liability

    (4) A spouse who is subject to a provincial child support service decision becomes liable to pay the amount of child support calculated under this section on the day, or on the expiry of a period, specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.

  • Marginal note:Disagreement with respect to amount

    (5) Either or both spouses who do not agree with the amount of the child support calculated under this section may apply to a court of competent jurisdiction for an order under section 15.1 before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations.

  • Marginal note:Effect of application

    (6) The liability to pay the amount of child support under subsection (4) continues while the determination of the application under subsection (5) is pending.

  • Marginal note:Recalculation of amount or application for order

    (7) After a spouse subject to a provincial child support service decision becomes liable to pay an amount of child support under subsection (4), either or both spouses may have the amount of child support recalculated under section 25.1 or apply to a court of competent jurisdiction for an order under section 15.1.

Marginal note:Provincial child support service — recalculation of child support

  •  (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to recalculate, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information.

  • Marginal note:Application of law of province

    (1.1) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.

  • Marginal note:Deeming of income

    (1.2) For the purposes of subsection (1), if a spouse does not provide the income information, a provincial child support service may deem the income of that spouse to be the amount determined in accordance with the method of calculation set out in the law of the province or, if no such method is specified, in accordance with the method prescribed by the regulations.

  • Marginal note:Effect of recalculation

    (2) Subject to subsection (5), the amount of a child support order as recalculated pursuant to this section shall for all purposes be deemed to be the amount payable under the child support order.

  • Marginal note:Effect of deeming of income

    (2.1) Subject to subsection (5), the income determined under subsection (1.2) shall be deemed to be the spouse’s income for the purposes of the child support order.

  • Marginal note:Liability

    (3) The spouse against whom a child support order was made becomes liable to pay the recalculated amount on the day, or on the expiry of the period specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.

  • Marginal note:Disagreement with recalculation

    (4) If either or both spouses do not agree with the recalculated amount of the child support order, either or both of them may, before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations, apply to a court of competent jurisdiction

    • (a) in the case of an interim order made under subsection 15.1(2), for an order under section 15.1;

    • (b) in the case of a provincial child support service decision made under section 25.01, for an order under section 15.1; or

    • (c) in any other case, if they are former spouses, for an order under paragraph 17(1)(a).

  • Marginal note:Effect of application

    (5) Where an application is made under subsection (4), the operation of subsection (3) is suspended pending the determination of the application, and the child support order continues in effect.

  • Marginal note:Withdrawal of application

    (6) If an application made under subsection (4) is withdrawn before it is determined, the spouse against whom the child support order was made becomes liable to pay the recalculated amount on the day on which the spouse would have become liable had the application not been made.

  • Marginal note:Definition of child support order

    (7) In this section, child support order has the same meaning as in subsection 2(1) and also means an interim order made under subsection 15.1(2), a provincial child support service decision made under section 25.01 and a variation order made under paragraph 17(1)(a).

Marginal note:Ministerial activities

 The Minister of Justice may conduct activities related to matters governed by this Act, including undertaking research.

Marginal note:Regulations

  •  (1) The Governor in Council may make regulations for carrying the purposes and provisions of this Act into effect and, without limiting the generality of the foregoing, may make regulations

    • (a) respecting the establishment, mandate and operation of a central registry of divorce proceedings;

    • (b) providing for uniformity in the rules made under section 25;

    • (c) respecting the framework for the calculation or recalculation of the amount of child support by the provincial child support service under section 25.01 or 25.1; and

    • (d) prescribing any matter or thing that by this Act is to be or may be prescribed.

  • Marginal note:Regulations prevail

    (2) Regulations made under paragraph (1)(b) prevail over rules made under section 25.

 
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