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)

Variation, Rescission or Suspension of Orders (continued)

 [Repealed, 2019, c. 16, s. 14]

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

 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)

  • R.S., 1985, c. 3 (2nd Supp.), s. 18
  • 1993, c. 8, s. 3, c. 28, s. 78
  • 2002, c. 7, s. 159
  • 2014, c. 2, s. 33
  • 2019, c. 16, s. 14

Inter-Jurisdictional Proceedings Between Provinces

Receipt and Sending of Applications

Marginal note:If former spouses reside in different provinces

  •  (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.

  • 2019, c. 16, s. 14
Conversion of Applications

Marginal note:Application to court

  •  (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.

  • 2019, c. 16, s. 14

Marginal note:No action by respondent

  •  (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

    • (a) whether the support order has been assigned under subsection 20.1(1); and

    • (b) if the support order has been assigned, whether the order assignee received notice of the application and did not request a conversion under subsection 18.2(1).

  • 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.

  • 2019, c. 16, s. 14
 
Date modified: