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

Marginal note:Power of court — interim order

16.94 A court may decide not to apply subsections 16.93(1) and (2) if the order referred to in those subsections is an interim order.

Marginal note:Costs relating to exercise of parenting time

16.95 If a court authorizes the relocation of a child of the marriage, it may provide for the apportionment of costs relating to the exercise of parenting time by a person who is not relocating between that person and the person who is relocating the child.

Marginal note:Notice — persons with contact

• 16.96 (1) A person who has contact with a child of the marriage under a contact order shall notify, in writing, any person with parenting time or decision-making responsibility in respect of that child of their intention to change their place of residence, the date on which the change is expected to occur, the address of their new place of residence and their contact information.

• Marginal note:Notice — significant impact

  (2) If the change is likely to have a significant impact on the child’s relationship with the person, the notice shall be given at least 60 days before the change in place of residence, in the form prescribed by the regulations, and shall set out, in addition to the information required in subsection (1), a proposal as to how contact could be exercised in light of the change and any other information prescribed by the regulations.

• Marginal note:Exception

  (3) Despite subsections (1) and (2), the court may, on application, order that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or modify them, if the court is of the opinion that it is appropriate to do so, including where there is a risk of family violence.

• Marginal note:Application without notice

  (4) An application referred to in subsection (3) may be made without notice to any other party.

Variation, Rescission or Suspension of Orders

Marginal note:Variation order

• 17 (1) A court of competent jurisdiction may make an order varying, rescinding or suspending, retroactively or prospectively,

  • (a) a support order or any provision of one, on application by either or both former spouses;

  • (b) a parenting order or any provision of one, on application by

    • (i) either or both former spouses, or

    • (ii) a person, other than a former spouse, who is a parent of the child, stands in the place of a parent or intends to stand in the place of a parent; or

  • (c) a contact order or any provision of one, on application by a person to whom the order relates.

• Marginal note:Leave of the court

  (2) A person to whom the parenting order in question does not relate may make an application under subparagraph (1)(b)(ii) only with leave of the court.

• Marginal note:Variation of parenting order

  (2.1) If the court makes a variation order in respect of a contact order, it may make an order varying the parenting order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.

• Marginal note:Variation of contact order

  (2.2) If the court makes a variation order in respect of a parenting order, it may make an order varying any contact order to take into account that variation order, and subsections (3) and (11) apply as a consequence with any necessary modifications.

• Marginal note:Conditions of order

  (3) The court may include in a variation order any provision that under this Act could have been included in the order in respect of which the variation order is sought, and the court has the same powers and obligations that it would have when making that order.

• Marginal note:Factors for child support order

  (4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

• Marginal note:Factors for spousal support order

  (4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

• Marginal note:Factors for parenting order or contact order

  (5) Before the court makes a variation order in respect of a parenting order or contact order, the court shall satisfy itself that there has been a change in the circumstances of the child since the making of the order or the last variation order made in respect of the order, or of an order made under subsection 16.5(9).

• Marginal note:Variation order

  (5.1) For the purposes of subsection (5), a former spouse’s terminal illness or critical condition shall be considered a change in the circumstances of the child, and the court shall make a variation order in respect of a parenting order with regard to the allocation of parenting time.

• Marginal note:Relocation — change in circumstances

  (5.2) The relocation of a child is deemed to constitute a change in the circumstances of the child for the purposes of subsection (5).

• Marginal note:Relocation prohibited — no change in circumstances

  (5.3) A relocation of a child that has been prohibited by a court under paragraph (1)(b) or section 16.1 does not, in itself, constitute a change in the circumstances of the child for the purposes of subsection (5).

• Marginal note:Conduct

  (6) In making a variation order, the court shall not take into consideration any conduct that under this Act could not have been considered in making the order in respect of which the variation order is sought.

• Marginal note:Guidelines apply

  (6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

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

  (6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, 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

  (6.3) Where the court awards, pursuant to subsection (6.2), 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

  (6.4) Notwithstanding subsection (6.1), 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

  (6.5) For the purposes of subsection (6.4), 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.

• Marginal note:Priority to child support

  (6.6) Section 15.3 applies, with any necessary modifications, when a court is considering an application under paragraph (1)(a) in respect of a child support order and an application under that paragraph in respect of a spousal support order.

• Marginal note:Objectives of variation order varying spousal support order

  (7) A variation order varying a spousal support order should

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

  • (b) apportion between the former 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 former spouses arising from the breakdown of the marriage; and

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

• (8) [Repealed, 1997, c. 1, s. 5]

• (9) [Repealed, 2019, c. 16, s. 13]

• Marginal note:Limitation

  (10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

  • (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

  • (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

• Marginal note:Copy of order

  (11) Where a court makes a variation order in respect of a support order, parenting order or contact order made by another court, it shall send a copy of the variation order, certified by a judge or officer of the court, to that other court.

17.1 [Repealed, 2019, c. 16, s. 14]

Proceedings Between Provinces and Between a Province and a Designated Jurisdiction To Obtain, Vary, Rescind or Suspend Support Orders or To Recognize Decisions of Designated Jurisdictions

Definitions

Marginal note:Definitions

18 The following definitions apply in this section and in sections 18.1 to 19.1.

competent authority

competent authority means a court that has the authority to make an order or another entity that has the authority to make a decision with respect to support under this Act. (autorité compétente)

designated authority

designated authority means a person or entity that is designated by a province to exercise the powers or perform the duties and functions set out in sections 18.1 to 19.1 within the province. (autorité désignée)

designated jurisdiction

designated jurisdiction means a jurisdiction outside Canada — whether a country or a political subdivision of a country — that is designated under an Act that relates to the reciprocal enforcement of orders relating to support, of the province in which either of the former spouses resides. (État désigné)

responsible authority

responsible authority means a person or entity that, in a designated jurisdiction, performs functions that are similar to those performed by the designated authority under subsection 19(4). (autorité responsable)

Inter-Jurisdictional Proceedings Between Provinces

Receipt and Sending of Applications

Marginal note:If former spouses reside in different provinces

• 18.1 (1) If the former spouses are resident in different provinces, either of them may, without notice to the other,

  • (a) commence a proceeding to obtain, vary, rescind or suspend, retroactively or prospectively, a support order; or

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

• Marginal note:Procedure

  (2) A proceeding referred to in paragraph (1)(a) shall be governed by this section, sections 18.2 and 18.3 and provincial law, with any necessary modifications, to the extent that the provincial law is not inconsistent with this Act.

• Marginal note:Application

  (3) For the purpose of subsection (1), a former spouse shall submit an application to the designated authority of the province in which they are resident.

• Marginal note:Sending application to respondent’s province

  (4) After reviewing the application and ensuring that it is complete, the designated authority referred to in subsection (3) shall send it to the designated authority of the province in which the applicant believes the respondent is habitually resident.

• Marginal note:Sending application to competent authority in respondent’s province

  (5) Subject to subsection (9), the designated authority that receives the application under subsection (4) shall send it to the competent authority in its province.

• Marginal note:Provincial child support service

  (6) If the competent authority is a provincial child support service, the amount of child support shall be calculated or recalculated in accordance with section 25.01 or 25.1, as the case may be.

• Marginal note:Service on respondent by court

  (7) If the competent authority is a court, it or any other person who is authorized to serve documents under the law of the province shall, on receipt of the application, serve the respondent with a copy of the application and a notice setting out the manner in which the respondent shall respond to the application and the respondent’s obligation to provide documents or information as required by the applicable law.

• Marginal note:Service not possible — returned application

  (8) If the court or authorized person was unable to serve the documents under subsection (7), they shall return the application to the designated authority referred to in subsection (5).

• Marginal note:Respondent resident in another province

  (9) If the designated authority knows that the respondent is habitually resident in another province, it shall send the application to the designated authority of that province.

• Marginal note:Respondent’s habitual residence unknown

  (10) If the habitual residence of the respondent is unknown, the designated authority shall return the application to the designated authority referred to in subsection (3).

• Marginal note:Applicant need not be served

  (11) Service of the notice and documents or information referred to in subsection (7) on the applicant is not required.

• Marginal note:Adjournment of proceeding

  (12) If the court requires further evidence, it shall adjourn the proceeding. Prior to adjourning, the court may make an interim order.

• Marginal note:Request for further evidence

  (13) If the court requires further evidence from the applicant, it shall request the designated authority of the province in which the court is located to communicate with the applicant or the designated authority in the province of the applicant in order to obtain the evidence.

• Marginal note:Dismissal of application

  (14) If the further evidence required under subsection (13) is not received by the court within 12 months after the day on which the court makes a request to the designated authority, the court may dismiss the application referred to in subsection (3) and terminate the interim order. The dismissal of the application does not preclude the applicant from making a new application.

• Marginal note:Order

  (15) The court may, on the basis of the evidence and the submissions of the former spouses, 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 support order or an order varying, rescinding or suspending a support order, retroactively or prospectively.

• Marginal note:Application of certain provisions

  (16) Subsections 15.1(3) to (8) and 15.2(3) to (6), section 15.3 and subsections 17(3) to (4.1), (6) to (7), (10) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (15).

• Marginal note:Broad interpretation of documents

  (17) For greater certainty, if a court receives a document under this section that is in a form that is different from that required by the rules regulating the practice and procedure in that court, or that contains terminology that is different from that used in this Act or the regulations, the court shall give a broad interpretation to the document for the purpose of giving effect to it.