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

Conversion of Applications

Marginal note:Application to court

• 18.2 (1) If an application is made to a court in a province under paragraph 17(1)(a) for a variation order in respect of a support order and the respondent habitually resides in a different province, the respondent may, within 40 days after being served with the application, request that the court convert the application into an application under subsection 18.1(3).

• Marginal note:Conversion and sending of application

  (2) Subject to subsection (3) and despite section 5, the court that receives the request shall direct that the application made under paragraph 17(1)(a), along with the evidence in support of it, be considered as an application under subsection 18.1(3), and shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made.

• Marginal note:Exception

  (3) If the application under paragraph 17(1)(a) is accompanied by an application under paragraph 17(1)(b) for a variation order in respect of a parenting order, the court that receives the request shall issue the direction referred to in subsection (2) only if it considers it appropriate to do so in the circumstances.

• Marginal note:Application of certain provisions

  (4) Once the designated authority receives the copy of the application under subsection (2), subsections 18.1(2), (4), (5), (7) and (12) to (17) apply, with any necessary modifications, in respect of that application.

Marginal note:No action by respondent

• 18.3 (1) If an application is made to a court in a province under paragraph 17(1)(a) for a variation order in respect of a support order, the respondent habitually resides in a different province and the respondent does not file an answer to the application or request a conversion under subsection 18.2(1), the court to which the application was made

  • (a) shall hear and determine the application in accordance with section 17 in the respondent’s absence, if it is satisfied that there is sufficient evidence to do so; or

  • (b) if it is not so satisfied, may direct, despite section 5, that the application, along with the evidence in support of it, be considered as an application under subsection 18.1(3), in which case it shall send a copy of the application and of the evidence to the designated authority of the province in which the application was made.

• Marginal note:Assignment of support order

  (2) Before the court hears and determines an application under paragraph (1)(a), the court shall take into consideration

  • (a) whether the support order has been assigned under subsection 20.1(1); and

  • (b) if the support order has been assigned, whether the order assignee received notice of the application and did not request a conversion under subsection 18.2(1).

• Marginal note:Application of certain provisions

  (3) If paragraph (1)(b) applies, then subsections 18.1(2), (4), (5), (7) and (12) to (17) apply, with any necessary modifications, in respect of the application.

Proceedings Between a Province and a Designated Jurisdiction

Receipt and Sending of Designated Jurisdictions’ Applications

Marginal note:If applicant resides in designated jurisdiction

• 19 (1) A former spouse who is resident in a designated jurisdiction may, without notice to the other former spouse,

  • (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 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 purposes of subsection (1), a former spouse shall submit, through the responsible authority in the designated jurisdiction, an application 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

  (4) After reviewing the application and ensuring that it is complete, the designated authority referred to in subsection (3) shall send it to the competent authority in its province.

• Marginal note:Provincial child support service

  (5) 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

  (6) 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

  (7) If the court or authorized person was unable to serve the documents under subsection (6), they shall return the application to the designated authority referred to in subsection (3).

• Marginal note:Return of application to responsible authority

  (8) The designated authority shall return the application to the responsible authority in the designated jurisdiction.

• Marginal note:Applicant need not be served

  (9) Service of the notice and documents or information referred to in subsection (6) on the applicant is not required.

• Marginal note:Adjournment of proceeding

  (10) 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

  (11) 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 responsible authority in the designated jurisdiction in order to obtain the evidence.

• Marginal note:Dismissal of application

  (12) If the further evidence required under subsection (11) is not received by the court within 12 months after the day on which the court makes the 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

  (13) 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:Provisional order

  (14) For greater certainty, if an application under paragraph (1)(a) contains a provisional order that was made in the designated jurisdiction and does not have legal effect in Canada, the court may take the provisional order into consideration but is not bound by it.

• Marginal note:Application of certain provisions

  (15) 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 (13).

• Marginal note:Broad interpretation of documents

  (16) 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.

Recognition of Decisions of Designated Jurisdiction

Marginal note:Recognition of decision of designated jurisdiction varying support order

• 19.1 (1) A former spouse who is resident in a designated jurisdiction may, through the responsible authority in the designated jurisdiction, make an application to the designated authority of the province in which the respondent habitually resides for recognition and, if applicable, for enforcement, of a decision of the designated jurisdiction that has the effect of varying a support order.

• Marginal note:Registration and recognition

  (2) The decision of the designated jurisdiction 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.

Legal Effect, Enforcement, Compliance and Assignment

Definition of court

• 20 (1) In this section, court, in respect of a province, has the meaning assigned by subsection 2(1) and includes such other court having jurisdiction in the province as is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this section.

• Marginal note:Legal effect of orders and decisions throughout Canada

  (2) An order made under this Act in respect of support, parenting time, decision-making responsibility or contact and a provincial child support service decision that calculates or recalculates the amount of child support under section 25.01 or 25.1 have legal effect throughout Canada.

• Marginal note:Enforcement

  (3) An order or decision that has legal effect throughout Canada under subsection (2) may be

  • (a) registered in any court in a province and enforced in like manner as an order of that court; or

  • (b) enforced in a province in any other manner provided for by the laws of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

• Marginal note:Variation of orders

  (4) Notwithstanding subsection (3), a court may only vary an order that has legal effect throughout Canada pursuant to subsection (2) in accordance with this Act.

Marginal note:Assignment of order

• 20.1 (1) A support order may be assigned to

  • (a) any minister of the Crown for Canada designated by the Governor in Council;

  • (b) any minister of the Crown for a province, or any agency in a province, designated by the Lieutenant Governor in Council of the province;

  • (c) any member of the Legislative Assembly of Yukon, or any agency in Yukon, designated by the Commissioner of Yukon;

  • (d) any member of the Legislative Assembly of the Northwest Territories, or any agency in the Northwest Territories, designated by the Commissioner of the Northwest Territories;

  • (e) any member of the Legislative Assembly of Nunavut, or any agency in Nunavut, designated by the Commissioner of Nunavut; or

  • (f) a public body referred to in Article 36 of the 2007 Convention, as defined in section 28.

• Marginal note:Rights

  (2) A minister, member or agency referred to in subsection (1) to whom an order is assigned is entitled to the payments due under the order, and has the same right to be notified of, and to participate in, proceedings under this Act to vary, rescind, suspend or enforce the order as the person who would otherwise be entitled to the payments.

• Marginal note:Rights — public body

  (3) A public body referred to in paragraph (1)(f) to whom a decision of a State Party that has the effect of varying a child support order has been assigned is entitled to the payments due under the decision, and has the same right to participate in proceedings under this Act, to recognize and enforce the decision or if the recognition of this decision is not possible, to obtain a variation order, as the person who would otherwise be entitled to the payments.

• Marginal note:Definition of State Party

  (4) For the purpose of subsection (3), State Party has the same meaning as in section 28.