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

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Act current to 2019-07-01 and last amended on 2019-06-21. Previous Versions

Jurisdiction (continued)

Marginal note:Jurisdiction in variation proceedings

  •  (1) A court in a province has jurisdiction to hear and determine a variation proceeding if

    • (a) either former spouse is ordinarily resident in the province at the commencement of the proceeding; or

    • (b) both former spouses accept the jurisdiction of the court.

  • Marginal note:Jurisdiction where two proceedings commenced on different days

    (2) Where variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on different days and the proceeding that was commenced first is not discontinued within thirty days after it was commenced, the court in which a variation proceeding was commenced first has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter and the second variation proceeding shall be deemed to be discontinued.

  • Marginal note:Jurisdiction where two proceedings commenced on same day

    (3) Where variation proceedings between the same former spouses and in respect of the same matter are pending in two courts that would otherwise have jurisdiction under subsection (1) and were commenced on the same day and neither proceeding is discontinued within thirty days after it was commenced, the Federal Court has exclusive jurisdiction to hear and determine any variation proceeding then pending between the former spouses in respect of that matter and the variation proceedings in those courts shall be transferred to the Federal Court on the direction of that Court.

  • R.S., 1985, c. 3 (2nd Supp.), s. 5
  • 2002, c. 8, s. 183

Marginal note:Transfer of divorce proceeding where custody application

  •  (1) Where an application for an order under section 16 is made in a divorce proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a spouse or on its own motion, transfer the divorce proceeding to a court in that other province.

  • Marginal note:Transfer of corollary relief proceeding where custody application

    (2) Where an application for an order under section 16 is made in a corollary relief proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the corollary relief proceeding to a court in that other province.

  • Marginal note:Transfer of variation proceeding where custody application

    (3) Where an application for a variation order in respect of a custody order is made in a variation proceeding to a court in a province and is opposed and the child of the marriage in respect of whom the variation order is sought is most substantially connected with another province, the court may, on application by a former spouse or on its own motion, transfer the variation proceeding to a court in that other province.

  • Marginal note:Exclusive jurisdiction

    (4) Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.

Marginal note:Exercise of jurisdiction by judge

 The jurisdiction conferred on a court by this Act to grant a divorce shall be exercised only by a judge of the court without a jury.

Divorce

Marginal note:Divorce

  •  (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

  • Marginal note:Breakdown of marriage

    (2) Breakdown of a marriage is established only if

    • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

    • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

      • (i) committed adultery, or

      • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

  • Marginal note:Calculation of period of separation

    (3) For the purposes of paragraph (2)(a),

    • (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

    • (b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

      • (i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

      • (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

Marginal note:Duty of legal adviser

  •  (1) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding

    • (a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses, and

    • (b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to him or her that might be able to assist the spouses to achieve a reconciliation,

    unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

  • Marginal note:Idem

    (2) It is the duty of every barrister, solicitor, lawyer or advocate who undertakes to act on behalf of a spouse in a divorce proceeding to discuss with the spouse the advisability of negotiating the matters that may be the subject of a support order or a custody order and to inform the spouse of the mediation facilities known to him or her that might be able to assist the spouses in negotiating those matters.

  • Marginal note:Certification

    (3) Every document presented to a court by a barrister, solicitor, lawyer or advocate that formally commences a divorce proceeding shall contain a statement by him or her certifying that he or she has complied with this section.

Marginal note:Duty of court — reconciliation

  •  (1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

  • Marginal note:Adjournment

    (2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall

    • (a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

    • (b) with the consent of the spouses or in the discretion of the court, nominate

      • (i) a person with experience or training in marriage counselling or guidance, or

      • (ii) in special circumstances, some other suitable person,

      to assist the spouses to achieve a reconciliation.

  • Marginal note:Resumption

    (3) Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.

  • Marginal note:Nominee not competent or compellable

    (4) No person nominated by a court under this section to assist spouses to achieve a reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose.

  • Marginal note:Evidence not admissible

    (5) Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings.

Marginal note:Duty of court — bars

  •  (1) In a divorce proceeding, it is the duty of the court

    • (a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;

    • (b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and

    • (c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.

  • Marginal note:Revival

    (2) Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).

  • Marginal note:Condonation

    (3) For the purposes of this section, a continuation or resumption of cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute condonation.

  • Definition of collusion

    (4) In this section, collusion means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.

  • R.S., 1985, c. 3 (2nd Supp.), s. 11
  • 1997, c. 1, s. 1.1
 
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