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

Appeals

Marginal note:Appeal to appellate court

• 21 (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

• 21.1 (1) [Repealed, 2019, c. 16, s. 17]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

Marginal note:Recognition of foreign divorce

• 22 (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

• 22.1 (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

• 23 (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

23.1 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

• 23.2 (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

24 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.