Government of Canada / Gouvernement du Canada
Symbol of the Government of Canada

Search

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

Full Document:  

Act current to 2021-03-23 and last amended on 2021-03-01. Previous Versions

Corollary Relief (continued)

Relocation (continued)

Marginal note:Best interests of child — additional factors to be considered

  •  (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

    • (a) the reasons for the relocation;

    • (b) the impact of the relocation on the child;

    • (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

    • (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

    • (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

    • (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

    • (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

  • Marginal note:Factor not to be considered

    (2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

  • 2019, c. 16, s. 12

Marginal note:Burden of proof — person who intends to relocate child

  •  (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

  • Marginal note:Burden of proof — person who objects to relocation

    (2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

  • Marginal note:Burden of proof — other cases

    (3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

  • 2019, c. 16, s. 12

Marginal note:Power of court — interim order

 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

  • 2019, c. 16, s. 12

Marginal note:Costs relating to exercise of parenting time

 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

  • 2019, c. 16, s. 12

Marginal note:Notice — persons with contact

  •  (1) A person who has contact with a child of the marriage under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.

  • Marginal note:Notice — significant impact

    (2) If the change is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in place of residence, in the form prescribed by the regulations, and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by the regulations.

  • Marginal note:Exception

    (3) Despite subsections (1) and (2), the court may, on application, order that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or modify them, if the court is of the opinion that it is appropriate to do so, including where there is a risk of family violence.

  • Marginal note:Application without notice

    (4) An application referred to in subsection (3) may be made without notice to any other party.

  • 2019, c. 16, s. 12

Variation, Rescission or Suspension of Orders

Marginal note:Variation order

  •  (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

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

    • (b) a parenting order or any provision of one, on application by

      • (i) either or both former spouses, or

      • (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

    • (c) a contact order or any provision of one, on application by a person to whom the order relates.

  • 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: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 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).

  • 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: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.

  • 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]

  • (9) [Repealed, 2019, c. 16, s. 13]

  • 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, 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.

  • R.S., 1985, c. 3 (2nd Supp.), s. 17
  • 1997, c. 1, s. 5
  • 2007, c. 14, s. 1
  • 2019, c. 16, s. 13
 
Date modified: