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

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Act current to 2021-04-20 and last amended on 2021-03-01. Previous Versions

Jurisdiction

Marginal note:Jurisdiction in divorce proceedings

  •  (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.

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

    (2) If divorce proceedings between the same spouses 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, the court in which a divorce proceeding was commenced first has exclusive jurisdiction to hear and determine any divorce proceeding then pending between the spouses and the second divorce proceeding is deemed to be discontinued.

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

    (3) If divorce proceedings between the same spouses 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 40 days after it was commenced, the Federal Court shall, on application by either or both spouses, determine which court retains jurisdiction by applying the following rules:

    • (a) if at least one of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;

    • (b) if neither of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the spouses last maintained a habitual residence in common if one of the spouses is habitually resident in that province; and

    • (c) in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

  • R.S., 1985, c. 3 (2nd Supp.), s. 3
  • 2002, c. 8, s. 183
  • 2019, c. 16, s. 2
  • 2019, c. 16, s. 35(E)

Marginal note:Jurisdiction in corollary relief proceedings

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

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

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

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

    (2) If corollary relief 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, the court in which a corollary relief proceeding was commenced first has exclusive jurisdiction to hear and determine any corollary relief proceeding then pending between the former spouses in respect of that matter and the second corollary relief proceeding is deemed to be discontinued.

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

    (3) If corollary relief 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 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:

    • (a) if at least one of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;

    • (b) if neither of the proceedings includes an application for a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and

    • (c) in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

  • R.S., 1985, c. 3 (2nd Supp.), s. 4
  • 1993, c. 8, s. 1
  • 2002, c. 8, s. 183
  • 2019, c. 16, s. 3
  • 2019, c. 16, s. 35(E)

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 habitually resident in the province at the commencement of the proceeding; or

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

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

    (2) If 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, 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 is deemed to be discontinued.

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

    (3) If 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 40 days after it was commenced, the Federal Court shall, on application by either or both former spouses, determine which court retains jurisdiction by applying the following rules:

    • (a) if at least one of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the child is habitually resident;

    • (b) if neither of the proceedings includes an application for a variation order in respect of a parenting order, the court that retains jurisdiction is the court in the province in which the former spouses last maintained a habitual residence in common if one of the former spouses is habitually resident in that province; and

    • (c) in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

  • R.S., 1985, c. 3 (2nd Supp.), s. 5
  • 2002, c. 8, s. 183
  • 2019, c. 16, s. 4
  • 2019, c. 16, s. 35(E)

Marginal note:Transfer of proceeding if parenting order applied for

  •  (1) If an application for an order under section 16.1 is made in a divorce proceeding or corollary relief proceeding to a court in a province and the child of the marriage in respect of whom the order is sought is habitually resident in another province, the court may, on application by a spouse or on its own motion, transfer the proceeding to a court in that other province.

  • Marginal note:Transfer of variation proceeding in respect of parenting order

    (2) If an application for a variation order in respect of a parenting order is made in a variation proceeding to a court in a province and the child of the marriage in respect of whom the variation order is sought is habitually resident in 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.

  • (3) [Repealed, 2019, c. 16, s. 5]

  • 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.

  • R.S., 1985, c. 3 (2nd Supp.), s. 6
  • 2019, c. 16, s. 5

Marginal note:Jurisdiction — application for contact order

  •  (1) If a court in a province is seized of an application for a parenting order in respect of a child, the court has jurisdiction to hear and determine an application for a contact order in respect of the child.

  • Marginal note:Jurisdiction — no pending variation proceeding

    (2) If no variation proceeding related to a parenting order in respect of a child is pending, a court in a province in which the child is habitually resident has jurisdiction to hear and determine an application for a contact order, an application for a variation order in respect of a contact order or an application for a variation order in respect of a parenting order brought by a person referred to in subparagraph 17(1)(b)(ii), unless the court considers that a court in another province is better placed to hear and determine the application, in which case the court shall transfer the proceeding to the court in that other province.

  • Marginal note:No jurisdiction — contact order

    (3) For greater certainty, if no parenting order has been made in respect of a child, no application for a contact order may be brought under this Act in respect of the child.

  • 2019, c. 16, s. 6

Marginal note:Removal or retention of child of marriage

  •  (1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied

    • (a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;

    • (b) that there has been undue delay in contesting the removal or retention by those persons; or

    • (c) that a court in the province in which the child is present is better placed to hear and determine the application.

  • Marginal note:Transfer

    (2) If the court in the province in which the child was habitually resident immediately before the removal or retention is satisfied that any of paragraphs (1)(a) to (c) apply,

    • (a) the court shall transfer the application to the court in the province in which the child is present; and

    • (b) the court may transfer any other application under this Act in respect of the parties to the court in the province in which the child is present.

  • Marginal note:Federal Court

    (3) If after the child’s removal from or retention in a province, two proceedings are commenced on the same day as described in subsection 3(3), 4(3) or 5(3), this section prevails over those subsections and the Federal Court shall determine which court has jurisdiction under this section. A reference in this section to “court in the province in which the child was habitually resident” is to be read as “Federal Court”.

  • 2019, c. 16, s. 6
 
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