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

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Act current to 2022-06-20 and last amended on 2021-03-01. Previous Versions

Divorce (continued)

 [Repealed, 2019, c. 16, s. 9]

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.

  • Marginal note: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 exercise of parenting time or decision-making responsibility.

Marginal note:Effective date generally

  •  (1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.

  • Marginal note:Special circumstances

    (2) Where, on or after rendering a judgment granting a divorce,

    • (a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and

    • (b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,

    the court may order that the divorce takes effect at such earlier time as it considers appropriate.

  • Marginal note:Effective date where appeal

    (3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal, takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal, if no appeal has been instituted within that time.

  • Marginal note:Certain extensions to be counted

    (4) For the purposes of subsection (3), the time fixed by law for instituting an appeal from a decision on an appeal includes any extension thereof fixed pursuant to law before the expiration of that time or fixed thereafter on an application instituted before the expiration of that time.

  • Marginal note:No late extensions of time for appeal

    (5) Notwithstanding any other law, the time fixed by law for instituting an appeal from a decision referred to in subsection (3) may not be extended after the expiration of that time, except on an application instituted before the expiration of that time.

  • Marginal note:Effective date where decision of Supreme Court of Canada

    (6) A divorce in respect of which an appeal has been taken to the Supreme Court of Canada, unless voided on the appeal, takes effect on the day on which the judgment on the appeal is rendered.

  • Marginal note:Certificate of divorce

    (7) Where a divorce takes effect in accordance with this section, a judge or officer of the court that rendered the judgment granting the divorce or, where that judgment has been appealed, of the appellate court that rendered the judgment on the final appeal, shall, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.

  • Marginal note:Conclusive proof

    (8) A certificate referred to in subsection (7), or a certified copy thereof, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.

Marginal note:Legal effect throughout Canada

 On taking effect, a divorce granted under this Act has legal effect throughout Canada.

Marginal note:Marriage dissolved

 On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.

Corollary Relief

 [Repealed, 2019, c. 16, s. 11]

Child Support Orders

Marginal note:Child support order

  •  (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

  • Marginal note:Interim order

    (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

  • Marginal note:Guidelines apply

    (3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

  • Marginal note:Terms and conditions

    (4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

  • Marginal note:Court may take agreement, etc., into account

    (5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

    • (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

    • (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

  • Marginal note:Reasons

    (6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

  • Marginal note:Consent orders

    (7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

  • Marginal note:Reasonable arrangements

    (8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

  • 1997, c. 1, s. 2

Spousal Support Orders

Marginal note:Spousal support order

  •  (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse.

  • Marginal note:Interim order

    (2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the determination of the application under subsection (1).

  • Marginal note:Terms and conditions

    (3) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

  • Marginal note:Factors

    (4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

    • (a) the length of time the spouses cohabited;

    • (b) the functions performed by each spouse during cohabitation; and

    • (c) any order, agreement or arrangement relating to support of either spouse.

  • Marginal note:Spousal misconduct

    (5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

  • Marginal note:Objectives of spousal support order

    (6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

    • (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

    • (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

    • (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

    • (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

  • 1997, c. 1, s. 2

Priority

Marginal note:Priority to child support

  •  (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

  • Marginal note:Reasons

    (2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

  • Marginal note:Consequences of reduction or termination of child support order

    (3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

  • 1997, c. 1, s. 2

Best Interests of the Child

Marginal note:Best interests of child

  •  (1) The court shall take into consideration only the best interests of the child of the marriage in making a parenting order or a contact order.

  • Marginal note:Primary consideration

    (2) When considering the factors referred to in subsection (3), the court shall give primary consideration to the child’s physical, emotional and psychological safety, security and well-being.

  • Marginal note:Factors to be considered

    (3) In determining the best interests of the child, the court shall consider all factors related to the circumstances of the child, including

    • (a) the child’s needs, given the child’s age and stage of development, such as the child’s need for stability;

    • (b) the nature and strength of the child’s relationship with each spouse, each of the child’s siblings and grandparents and any other person who plays an important role in the child’s life;

    • (c) each spouse’s willingness to support the development and maintenance of the child’s relationship with the other spouse;

    • (d) the history of care of the child;

    • (e) the child’s views and preferences, giving due weight to the child’s age and maturity, unless they cannot be ascertained;

    • (f) the child’s cultural, linguistic, religious and spiritual upbringing and heritage, including Indigenous upbringing and heritage;

    • (g) any plans for the child’s care;

    • (h) the ability and willingness of each person in respect of whom the order would apply to care for and meet the needs of the child;

    • (i) the ability and willingness of each person in respect of whom the order would apply to communicate and cooperate, in particular with one another, on matters affecting the child;

    • (j) any family violence and its impact on, among other things,

      • (i) the ability and willingness of any person who engaged in the family violence to care for and meet the needs of the child, and

      • (ii) the appropriateness of making an order that would require persons in respect of whom the order would apply to cooperate on issues affecting the child; and

    • (k) any civil or criminal proceeding, order, condition, or measure that is relevant to the safety, security and well-being of the child.

  • Marginal note:Factors relating to family violence

    (4) In considering the impact of any family violence under paragraph (3)(j), the court shall take the following into account:

    • (a) the nature, seriousness and frequency of the family violence and when it occurred;

    • (b) whether there is a pattern of coercive and controlling behaviour in relation to a family member;

    • (c) whether the family violence is directed toward the child or whether the child is directly or indirectly exposed to the family violence;

    • (d) the physical, emotional and psychological harm or risk of harm to the child;

    • (e) any compromise to the safety of the child or other family member;

    • (f) whether the family violence causes the child or other family member to fear for their own safety or for that of another person;

    • (g) any steps taken by the person engaging in the family violence to prevent further family violence from occurring and improve their ability to care for and meet the needs of the child; and

    • (h) any other relevant factor.

  • Marginal note:Past conduct

    (5) In determining what is in the best interests of the child, the court shall not take into consideration the past conduct of any person unless the conduct is relevant to the exercise of their parenting time, decision-making responsibility or contact with the child under a contact order.

  • Marginal note:Parenting time consistent with best interests of child

    (6) In allocating parenting time, the court shall give effect to the principle that a child should have as much time with each spouse as is consistent with the best interests of the child.

  • Marginal note:Parenting order and contact order

    (7) In this section, a parenting order includes an interim parenting order and a variation order in respect of a parenting order, and a contact order includes an interim contact order and a variation order in respect of a contact order.

 
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