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

Implementation, Interpretation and Application of the 2007 Convention

Marginal note:Force of law

• 28.1 (1) The provisions of the 2007 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.

• Marginal note:Inconsistency

  (2) The 2007 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.

Marginal note:Explanatory Report

28.2 In interpreting the 2007 Convention, recourse may be had to the Explanatory Report on the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, adopted by the Twenty-First Session of the Hague Conference on Private International Law held from November 5 to 23, 2007.

Marginal note:Application

28.3 Sections 28.4 to 29.5 apply if either the creditor or the debtor, as the case may be, resides in a State Party and the other resides in a province in respect of which Canada has made a declaration extending the application of the 2007 Convention to that province. However, the application of those provisions does not exclude the application of the other provisions of this Act unless there is an indication to the contrary.

Application of Creditor to Central Authority

Marginal note:Recognition of State Party decision varying child support order

• 28.4 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.

• Marginal note:Spousal support order

  (2) A creditor may also in the same manner submit an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a spousal support order if the application is also for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.

• Marginal note:Registration and recognition

  (3) The decision of the State Party is registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.

• Marginal note:Enforcement

  (4) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Marginal note:Establishment or variation of child support order or calculation or recalculation of amount

• 28.5 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application to be sent to the competent authority in the province.

• Marginal note:Types of applications

  (2) An application may seek

  • (a) to obtain or to vary a child support order; or

  • (b) to have the amount of child support calculated or recalculated, if the provincial child support service in the province in which the debtor habitually resides provides such a service.

• Marginal note:Sending of application

  (3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.

• Marginal note:Application of section 19

  (4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “debtor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the debtor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the creditor resides” and “applicant” shall be read as “creditor”.

• Marginal note:Order

  (5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, 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 child support order or an order varying a child support order, retroactively or prospectively.

• Marginal note:Application of certain provisions

  (6) Subsections 15.1(3) to (8), section 15.3 and subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).

• Marginal note:Exception

  (7) Subsections (1) to (6) apply despite sections 4 and 5.

Application of Debtor to Central Authority

Marginal note:Recognition of State Party decision suspending or limiting enforcement of child support order

• 29 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a child support order.

• Marginal note:Spousal support order

  (2) A debtor may also in the same manner submit an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a spousal support order, if the application is also for recognition of a decision of the State Party that has the effect of suspending or limiting the enforcement of a child support order.

• Marginal note:Registration and recognition

  (3) The decision of the State Party shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, apply in respect of the recognition of the decision.

• Marginal note:Enforcement

  (4) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Marginal note:Variation of child support order or recalculation of amount

• 29.1 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application to be sent to the competent authority in the province.

• Marginal note:Types of applications

  (2) An application may seek

  • (a) to vary a child support order; or

  • (b) to have the amount of child support recalculated, if the provincial child support service in the province in which the creditor habitually resides provides such a service.

• Marginal note:Sending of application

  (3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.

• Marginal note:Application of section 19

  (4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “creditor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the creditor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the debtor resides” and “applicant” shall be read as “debtor”.

• Marginal note:Order

  (5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, 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 an order varying a child support order, retroactively or prospectively.

• Marginal note:Application of certain provisions

  (6) Subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).

• Marginal note:Exception

  (7) Subsections (1) to (6) apply despite section 5.

Spousal Support Orders

Marginal note:Declaration in respect of a province

29.2 If Canada declares under Article 2 of the 2007 Convention that the application of Chapters II and III of that Convention is to extend, in respect of a province, to spousal support orders, the applications described in sections 28.4 to 29.1 of this Act may also be made in respect of those orders and in that case those sections apply with any necessary modifications.

Application of Creditor to Court

Marginal note:Recognition of State Party decision varying support order

• 29.3 (1) A creditor may submit to a court in the province in which the debtor is habitually resident an application for recognition — and, if applicable, for enforcement — of a decision of a State Party that has the effect of varying a support order.

• Marginal note:Registration and recognition

  (2) The decision of the State Party shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.

• Marginal note:Enforcement

  (3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Application of Debtor to Court

Marginal note:Recognition of State Party decision suspending or limiting enforcement of support order

• 29.4 (1) A debtor may submit to a court in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a support order.

• Marginal note:Registration and recognition

  (2) The decision of the State Party shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.

• Marginal note:Enforcement

  (3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Limits on Divorce Proceedings

Marginal note:Support decision obtained in State Party

• 29.5 (1) If a divorce proceeding is commenced in the province in which the debtor is habitually resident, the court of competent jurisdiction is not authorized to make an order under section 15.1 if the creditor has, in the State Party in which the creditor habitually resides, obtained a decision that requires the debtor to pay for the support of any or all of the children of the marriage.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply if

  • (a) the creditor accepts the jurisdiction of the court, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;

  • (b) the decision-making authority that made the decision in the State Party has no jurisdiction to vary the decision or make a new one or refuses to exercise its jurisdiction to do so; or

  • (c) the decision cannot be recognized or declared enforceable in the province in which the debtor is habitually resident.