• 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.

• 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.

• 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.

Marginal note:Transfer of proceeding if parenting order applied for

• 6 (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.

Marginal note:Jurisdiction — application for contact order

• 6.1 (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.

Marginal note:Removal or retention of child of marriage

• 6.2 (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”.

Marginal note:Child habitually resident outside Canada

• 6.3 (1) If a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.

• Marginal note:Exceptional circumstances

  (2) In determining whether there are exceptional circumstances, the court shall consider all relevant factors, including

  • (a) whether there is a sufficient connection between the child and the province;

  • (b) the urgency of the situation;

  • (c) the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and

  • (d) the importance of discouraging child abduction.

Marginal note:Child habitually resident outside Canada

• 6.3 (1) Subject to sections 30 to 31.3, if a child of the marriage is not habitually resident in Canada, a court in the province that would otherwise have jurisdiction under sections 3 to 5 to make a parenting order or contact order, or a variation order in respect of such an order, has jurisdiction to do so only in exceptional circumstances and if the child is present in the province.

Duties

Parties to a Proceeding

Marginal note:Best interests of child

7.1 A person to whom parenting time or decision-making responsibility has been allocated in respect of a child of the marriage or who has contact with that child under a contact order shall exercise that time, responsibility or contact in a manner that is consistent with the best interests of the child.

Marginal note:Protection of children from conflict

7.2 A party to a proceeding under this Act shall, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding.

Marginal note:Family dispute resolution process

7.3 To the extent that it is appropriate to do so, the parties to a proceeding shall try to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process.

Marginal note:Complete, accurate and up-to-date information

7.4 A party to a proceeding under this Act or a person who is subject to an order made under this Act shall provide complete, accurate and up-to-date information if required to do so under this Act.

Marginal note:Duty to comply with orders

7.5 For greater certainty, a person who is subject to an order made under this Act shall comply with the order until it is no longer in effect.

Marginal note:Certification

7.6 Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under sections 7.1 to 7.5.

Legal Adviser

Marginal note:Reconciliation

• 7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf 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 the legal adviser that might be able to assist the spouses to achieve a reconciliation.

• Marginal note:Duty to discuss and inform

  (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

  • (a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

  • (b) to inform the person of the family justice services known to the legal adviser that might assist the person

    • (i) in resolving the matters that may be the subject of an order under this Act, and

    • (ii) in complying with any order or decision made under this Act; and

  • (c) to inform the person of the parties’ duties under this Act.

• Marginal note:Certification

  (3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.

Court

Marginal note:Purpose of section

• 7.8 (1) The purpose of this section is to facilitate

  • (a) the identification of orders, undertakings, recognizances, agreements or measures that may conflict with an order under this Act; and

  • (b) the coordination of proceedings.

• Marginal note:Information regarding other orders or proceedings

  (2) In a proceeding for corollary relief and in relation to any party to that proceeding, the court has a duty to consider if any of the following are pending or in effect, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so:

  • (a) a civil protection order or a proceeding in relation to such an order;

  • (b) a child protection order, proceeding, agreement or measure; or

  • (c) an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.

  In order to carry out the duty, the court may make inquiries of the parties or review information that is readily available and that has been obtained through a search carried out in accordance with provincial law, including the rules made under subsection 25(2).

• Marginal note:Definition of civil protection order

  (3) In this section, civil protection order means a civil order that is made to protect a person’s safety, including an order that prohibits a person from

  • (a) being in physical proximity to a specified person or following a specified person from place to place;

  • (b) contacting or communicating with a specified person, either directly or indirectly;

  • (c) attending at or being within a certain distance of a specified place or location;

  • (d) engaging in harassing or threatening conduct directed at a specified person;

  • (e) occupying a family home or a residence; or

  • (f) engaging in family violence.

• 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.

Best Interests of the Child

Marginal note:Best interests of child

• 16 (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:Maximum parenting time

  (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.

Parenting Orders

Marginal note:Parenting order

• 16.1 (1) A court of competent jurisdiction may make an order providing for the exercise of parenting time or decision-making responsibility in respect of any child of the marriage, on application by

  • (a) either or both spouses; or

  • (b) a person, other than a 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.

• Marginal note:Interim order

  (2) The court may, on application by a person described in subsection (1), make an interim parenting order in respect of the child, pending the determination of an application made under that subsection.

• Marginal note:Application by person other than spouse

  (3) A person described in paragraph (1)(b) may make an application under subsection (1) or (2) only with leave of the court.

• Marginal note:Contents of parenting order

  (4) The court may, in the order,

  • (a) allocate parenting time in accordance with section 16.2;

  • (b) allocate decision-making responsibility in accordance with section 16.3;

  • (c) include requirements with respect to any means of communication, that is to occur during the parenting time allocated to a person, between a child and another person to whom parenting time or decision-making responsibility is allocated; and

  • (d) provide for any other matter that the court considers appropriate.

• Marginal note:Terms and conditions

  (5) The court may make an order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

• Marginal note:Family dispute resolution process

  (6) Subject to provincial law, the order may direct the parties to attend a family dispute resolution process.

• Marginal note:Relocation

  (7) The order may authorize or prohibit the relocation of the child.

• Marginal note:Supervision

  (8) The order may require that parenting time or the transfer of the child from one person to another be supervised.

• Marginal note:Prohibition on removal of child

  (9) The order may prohibit the removal of a child from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

Marginal note:Parenting time — schedule

• 16.2 (1) Parenting time may be allocated by way of a schedule.

• Marginal note:Day-to-day decisions

  (2) Unless the court orders otherwise, a person to whom parenting time is allocated under paragraph 16.1(4)(a) has exclusive authority to make, during that time, day-to-day decisions affecting the child.

Marginal note:Allocation of decision-making responsibility

16.3 Decision-making responsibility in respect of a child, or any aspect of that responsibility, may be allocated to either spouse, to both spouses, to a person described in paragraph 16.1(1)(b), or to any combination of those persons.

Marginal note:Entitlement to information

16.4 Unless the court orders otherwise, any person to whom parenting time or decision-making responsibility has been allocated is entitled to request from another person to whom parenting time or decision-making responsibility has been allocated information about the child’s well-being, including in respect of their health and education, or from any other person who is likely to have such information, and to be given such information by those persons subject to any applicable laws.

Contact Orders

Marginal note:Contact order

• 16.5 (1) A court of competent jurisdiction may, on application by a person other than a spouse, make an order providing for contact between that person and a child of the marriage.

• Marginal note:Interim order

  (2) The court may, on application by a person referred to in subsection (1), make an interim order providing for contact between that person and the child, pending the determination of the application made under that subsection.

• Marginal note:Leave of the court

  (3) A person may make an application under subsection (1) or (2) only with leave of the court, unless they obtained leave of the court to make an application under section 16.1.

• Marginal note:Factors in determining whether to make order

  (4) In determining whether to make a contact order under this section, the court shall consider all relevant factors, including whether contact between the applicant and the child could otherwise occur, for example during the parenting time of another person.

• Marginal note:Contents of contact order

  (5) The court may, in the contact order,

  • (a) provide for contact between the applicant and the child in the form of visits or by any means of communication; and

  • (b) provide for any other matter that the court considers appropriate.

• Marginal note:Terms and conditions

  (6) The court may make a contact order for a definite or indefinite period or until a specified event occurs, and may impose any terms, conditions and restrictions that it considers appropriate.

• Marginal note:Supervision

  (7) The order may require that the contact or transfer of the child from one person to another be supervised.

• Marginal note:Prohibition on removal of child

  (8) The order may provide that a child shall not be removed from a specified geographic area without the written consent of any specified person or without a court order authorizing the removal.

• Marginal note:Variation of parenting order

  (9) If a parenting order in respect of the child has already been made, the court may make an order varying the parenting order to take into account a contact order it makes under this section, and subsections 17(3) and (11) apply as a consequence with any necessary modifications.

Parenting Plan

Marginal note:Parenting plan

• 16.6 (1) The court shall include in a parenting order or a contact order, as the case may be, any parenting plan submitted by the parties unless, in the opinion of the court, it is not in the best interests of the child to do so, in which case the court may make any modifications to the plan that it considers appropriate and include it in the order.

• Marginal note:Definition of parenting plan

  (2) In subsection (1), parenting plan means a document or part of a document that contains the elements relating to parenting time, decision-making responsibility or contact to which the parties agree.

Change in Place of Residence

Marginal note:Non-application

16.7 Section 16.8 does not apply to a change in the place of residence that is a relocation.

Marginal note:Notice

• 16.8 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to change their place of residence or that of the child shall notify any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

• Marginal note:Form and content of notice

  (2) The notice shall be given in writing and shall set out

  • (a) the date on which the change is expected to occur; and

  • (b) the address of the new place of residence and contact information of the person or child, as the case may be.

• Marginal note:Exception

  (3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections do not apply or may modify them, 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.

Relocation

Marginal note:Notice

• 16.9 (1) A person who has parenting time or decision-making responsibility in respect of a child of the marriage and who intends to undertake a relocation shall notify, at least 60 days before the expected date of the proposed relocation and in the form prescribed by the regulations, any other person who has parenting time, decision-making responsibility or contact under a contact order in respect of that child of their intention.

• Marginal note:Content of notice

  (2) The notice must set out

  • (a) the expected date of the relocation;

  • (b) the address of the new place of residence and contact information of the person or child, as the case may be;

  • (c) a proposal as to how parenting time, decision-making responsibility or contact, as the case may be, could be exercised; and

  • (d) any other information prescribed by the regulations.

• Marginal note:Exception

  (3) Despite subsections (1) and (2), the court may, on application, provide that the requirements in those subsections, or in the regulations made for the purposes of those subsections, do not apply or may modify them, 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.

Marginal note:Relocation authorized

• 16.91 (1) A person who has given notice under section 16.9 and who intends to relocate a child may do so as of the date referred to in the notice if

  • (a) the relocation is authorized by a court; or

  • (b) the following conditions are satisfied:

    • (i) the person with parenting time or decision-making responsibility in respect of the child who has received a notice under subsection 16.9(1) does not object to the relocation within 30 days after the day on which the notice is received, by setting out their objection in

      • (A) a form prescribed by the regulations, or

      • (B) an application made under subsection 16.1(1) or paragraph 17(1)(b), and

    • (ii) there is no order prohibiting the relocation.

• Marginal note:Content of form

  (2) The form must set out

  • (a) a statement that the person objects to the proposed relocation;

  • (b) the reasons for the objection;

  • (c) the person’s views on the proposal for the exercise of parenting time, decision-making responsibility or contact, as the case may be, that is set out in the notice referred to in subsection 16.9(1); and

  • (d) any other information prescribed by the regulations.

Marginal note:Best interests of child — additional factors to be considered

• 16.92 (1) In deciding whether to authorize a relocation of a child of the marriage, the court shall, in order to determine what is in the best interests of the child, take into consideration, in addition to the factors referred to in section 16,

  • (a) the reasons for the relocation;

  • (b) the impact of the relocation on the child;

  • (c) the amount of time spent with the child by each person who has parenting time or a pending application for a parenting order and the level of involvement in the child’s life of each of those persons;

  • (d) whether the person who intends to relocate the child complied with any applicable notice requirement under section 16.9, provincial family law legislation, an order, arbitral award, or agreement;

  • (e) the existence of an order, arbitral award, or agreement that specifies the geographic area in which the child is to reside;

  • (f) the reasonableness of the proposal of the person who intends to relocate the child to vary the exercise of parenting time, decision-making responsibility or contact, taking into consideration, among other things, the location of the new place of residence and the travel expenses; and

  • (g) whether each person who has parenting time or decision-making responsibility or a pending application for a parenting order has complied with their obligations under family law legislation, an order, arbitral award, or agreement, and the likelihood of future compliance.

• Marginal note:Factor not to be considered

  (2) In deciding whether to authorize a relocation of the child, the court shall not consider, if the child’s relocation was prohibited, whether the person who intends to relocate the child would relocate without the child or not relocate.

Marginal note:Burden of proof — person who intends to relocate child

• 16.93 (1) If the parties to the proceeding substantially comply with an order, arbitral award, or agreement that provides that a child of the marriage spend substantially equal time in the care of each party, the party who intends to relocate the child has the burden of proving that the relocation would be in the best interests of the child.

• Marginal note:Burden of proof — person who objects to relocation

  (2) If the parties to the proceeding substantially comply with an order, arbitral award or agreement that provides that a child of the marriage spends the vast majority of their time in the care of the party who intends to relocate the child, the party opposing the relocation has the burden of proving that the relocation would not be in the best interests of the child.

• Marginal note:Burden of proof — other cases

  (3) In any other case, the parties to the proceeding have the burden of proving whether the relocation is in the best interests of the child.

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.

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.

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

Marginal note:Recognition of foreign divorce

• 22 (1) A divorce granted, on or after the coming into force of this Act, by a competent authority shall be recognized for the purpose of determining the marital status in Canada of any person, if either former spouse was habitually resident in the country or subdivision of the competent authority for at least one year immediately preceding the commencement of proceedings for the divorce.

• Marginal note:Recognition of foreign divorce

  (2) A divorce granted after July 1, 1968 by a competent authority, on the basis of the domicile of the wife in the country or subdivision of the competent authority, determined as if she were unmarried and, if she was a minor, as if she had attained the age of majority, shall be recognized for the purpose of determining the marital status in Canada of any person.

Marginal note:Recognition of foreign order that varies parenting or contact order

• 22.1 (1) On application by an interested person, a court in a province that has a sufficient connection with the matter shall recognize a decision made by a competent authority that has the effect of varying, rescinding or suspending a parenting order or contact order, unless

  • (a) the child concerned is not habitually resident in the country other than Canada in which the competent authority is located or that competent authority of that other country would not have had jurisdiction if it applied substantially equivalent rules related to the jurisdiction as those that are set out in section 6.3;

  • (b) the decision was made, except in an urgent case, without the child having been provided with the opportunity to be heard, in violation of fundamental principles of procedure of the province;

  • (c) a person claims that the decision negatively affects the exercise of their parenting time or decision-making responsibility or contact under a contact order, and the decision was made, except in an urgent case, without the person having been given an opportunity to be heard;

  • (d) recognition of the decision would be manifestly contrary to public policy, taking into consideration the best interests of the child; or

  • (e) the decision is incompatible with a later decision that fulfils the requirements for recognition under this section.

• Marginal note:Effect of recognition

  (2) The court’s decision recognizing the competent authority’s decision is deemed to be an order made under section 17 and has legal effect throughout Canada.

• Marginal note:Effect of non-recognition

  (3) The court’s decision refusing to recognize the competent authority’s decision has legal effect throughout Canada.

Marginal note:Recognition of foreign order that varies parenting or contact order

• 22.1 (1) Subject to sections 30 to 31.3, on application by an interested person, a court in a province that has a sufficient connection with the matter shall recognize a decision made by a competent authority that has the effect of varying, rescinding or suspending a parenting order or contact order, unless

• Marginal note:Canada Evidence Act

  (2) The Canada Evidence Act applies in respect of a proceeding before the Federal Court to determine, under subsection 3(3), 4(3), 5(3) or 6.2(3), which court retains jurisdiction.

Marginal note:Means of presenting submissions

23.1 If the parties to a proceeding are habitually resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules regulating the practice and procedure in that court, make an order on the basis of the evidence and the submissions of the parties, 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.

Marginal note:Official languages

• 23.2 (1) A proceeding under this Act may be conducted in English or French, or in both official languages of Canada.

• Marginal note:Language rights

  (2) In any proceeding under this Act,

  • (a) any person has the right to use either official language, including to

    • (i) file pleadings or other documents,

    • (ii) give evidence, or

    • (iii) make submissions;

  • (b) the court shall, at the request of any person, provide simultaneous interpretation from one official language into the other;

  • (c) any party to that proceeding has the right to a judge who speaks the same official language as that party or both official languages, as the case may be;

  • (d) any party to that proceeding has the right to request a transcript or recording, as the case may be, of

    • (i) what was said during that proceeding in the official language in which it was said, if what was said was taken down by a stenographer or a sound recording apparatus, and

    • (ii) any interpretation into the other official language of what was said; and

  • (e) the court shall, at the request of any party to that proceeding, make available in that party’s official language of choice any judgment or order that is rendered or made under this Act and that relates to that party.

• Marginal note:Original version prevails

  (3) In the case of a discrepancy between the original version of a document referred to in paragraph (2)(a) or (e) and the translated text, the original version shall prevail.

• Marginal note:Court forms

  (4) The court forms relating to any proceedings under this Act shall be made available in both official languages.

• (b.1) respecting the application of section 23.1;

Marginal note:Provincial child support service — calculation of child support

• 25.01 (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to calculate the amount of child support in accordance with the applicable guidelines and set it out in a decision.

• Marginal note:Application of law of province

  (2) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.

• Marginal note:Effect of calculation by provincial child support service

  (3) The amount of child support calculated under this section is the amount payable by the spouse who is subject to a provincial child support service decision.

• Marginal note:Liability

  (4) A spouse who is subject to a provincial child support service decision becomes liable to pay the amount of child support calculated under this section on the day, or on the expiry of a period, specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.

• Marginal note:Disagreement with respect to amount

  (5) Either or both spouses who do not agree with the amount of the child support calculated under this section may apply to a court of competent jurisdiction for an order under section 15.1 before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations.

• Marginal note:Effect of application

  (6) The liability to pay the amount of child support under subsection (4) continues while the determination of the application under subsection (5) is pending.

• Marginal note:Recalculation of amount or application for order

  (7) After a spouse subject to a provincial child support service decision becomes liable to pay an amount of child support under subsection (4), either or both spouses may have the amount of child support recalculated under section 25.1 or apply to a court of competent jurisdiction for an order under section 15.1.

Marginal note:Ministerial activities

25.2 The Minister of Justice may conduct activities related to matters governed by this Act, including undertaking research.

International Conventions

Convention on the International Recovery of Child Support and Other Forms of Family Maintenance

Definitions

Marginal note:Definitions

28 The following definitions apply in this section and in sections 28.1 to 29.5.

2007 Convention

2007 Convention means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007, set out in the schedule. (Convention de 2007)

Central Authority

Central Authority means any person or entity designated under Article 4 of the 2007 Convention that is responsible for carrying out the duties that are imposed on it by the 2007 Convention. (autorité centrale)

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)

creditor

creditor means a former spouse to whom support is owed or who seeks to obtain support. (créancier)

debtor

debtor means a former spouse who owes support or from whom support is sought. (débiteur)

State Party

State Party means a State other than Canada in which the 2007 Convention applies. (État partie)

Implementation, Interpretation and Application of the 2007 Convention

Marginal note:Force of law

• 28.1 (1) The provisions of the 2007 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.

• Marginal note:Inconsistency

  (2) The 2007 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.

Marginal note:Explanatory Report

28.2 In interpreting the 2007 Convention, recourse may be had to the Explanatory Report on the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, adopted by the Twenty-First Session of the Hague Conference on Private International Law held from November 5 to 23, 2007.

Marginal note:Application

28.3 Sections 28.4 to 29.5 apply if either the creditor or the debtor, as the case may be, resides in a State Party and the other resides in a province in respect of which Canada has made a declaration extending the application of the 2007 Convention to that province. However, the application of those provisions does not exclude the application of the other provisions of this Act unless there is an indication to the contrary.

Application of Creditor to Central Authority

Marginal note:Recognition of State Party decision varying child support order

• 28.4 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.

• Marginal note:Spousal support order

  (2) A creditor may also in the same manner submit an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a spousal support order if the application is also for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.

• Marginal note:Registration and recognition

  (3) The decision of the State Party is 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

  (4) 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.

Marginal note:Establishment or variation of child support order or calculation or recalculation of amount

• 28.5 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application to be sent to the competent authority in the province.

• Marginal note:Types of applications

  (2) An application may seek

  • (a) to obtain or to vary a child support order; or

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

• Marginal note:Sending of application

  (3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.

• Marginal note:Application of section 19

  (4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “debtor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the debtor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the creditor resides” and “applicant” shall be read as “creditor”.

• Marginal note:Order

  (5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, 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 child support order or an order varying a child support order, retroactively or prospectively.

• Marginal note:Application of certain provisions

  (6) Subsections 15.1(3) to (8), section 15.3 and subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).

• Marginal note:Exception

  (7) Subsections (1) to (6) apply despite sections 4 and 5.

Application of Debtor to Central Authority

Marginal note:Recognition of State Party decision suspending or limiting enforcement of child support order

• 29 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a child support order.

• Marginal note:Spousal support order

  (2) A debtor may also in the same manner submit an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a spousal support order, if the application is also for recognition of a decision of the State Party that has the effect of suspending or limiting the enforcement of a child support order.

• Marginal note:Registration and recognition

  (3) The decision of the State Party 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, apply in respect of the recognition of the decision.

• Marginal note:Enforcement

  (4) 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.

Marginal note:Variation of child support order or recalculation of amount

• 29.1 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application to be sent to the competent authority in the province.

• Marginal note:Types of applications

  (2) An application may seek

  • (a) to vary a child support order; or

  • (b) to have the amount of child support recalculated, if the provincial child support service in the province in which the creditor habitually resides provides such a service.

• Marginal note:Sending of application

  (3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.

• Marginal note:Application of section 19

  (4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “creditor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the creditor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the debtor resides” and “applicant” shall be read as “debtor”.

• Marginal note:Order

  (5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, 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 an order varying a child support order, retroactively or prospectively.

• Marginal note:Application of certain provisions

  (6) Subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).

• Marginal note:Exception

  (7) Subsections (1) to (6) apply despite section 5.

Spousal Support Orders

Marginal note:Declaration in respect of a province

29.2 If Canada declares under Article 2 of the 2007 Convention that the application of Chapters II and III of that Convention is to extend, in respect of a province, to spousal support orders, the applications described in sections 28.4 to 29.1 of this Act may also be made in respect of those orders and in that case those sections apply with any necessary modifications.

Application of Creditor to Court

Marginal note:Recognition of State Party decision varying support order

• 29.3 (1) A creditor may submit to a court in the province in which the debtor is habitually resident an application for recognition — and, if applicable, for enforcement — of a decision of a State Party that has the effect of varying a support order.

• Marginal note:Registration and recognition

  (2) The decision of the State Party 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.

Application of Debtor to Court

Marginal note:Recognition of State Party decision suspending or limiting enforcement of support order

• 29.4 (1) A debtor may submit to a court in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a support order.

• Marginal note:Registration and recognition

  (2) The decision of the State Party 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.

Limits on Divorce Proceedings

Marginal note:Support decision obtained in State Party

• 29.5 (1) If a divorce proceeding is commenced in the province in which the debtor is habitually resident, the court of competent jurisdiction is not authorized to make an order under section 15.1 if the creditor has, in the State Party in which the creditor habitually resides, obtained a decision that requires the debtor to pay for the support of any or all of the children of the marriage.

• Marginal note:Exceptions

  (2) Subsection (1) does not apply if

  • (a) the creditor accepts the jurisdiction of the court, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;

  • (b) the decision-making authority that made the decision in the State Party has no jurisdiction to vary the decision or make a new one or refuses to exercise its jurisdiction to do so; or

  • (c) the decision cannot be recognized or declared enforceable in the province in which the debtor is habitually resident.

Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children

Definitions

Marginal note:Definitions

30 The following definitions apply in this section and in sections 30.1 to 31.3.

1996 Convention

1996 Convention means the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children, concluded at The Hague on October 19, 1996, set out in the schedule. (Convention de 1996)

State Party

State Party means a State other than Canada in which the 1996 Convention applies. (État partie)

Implementation, Interpretation and Application of the 1996 Convention

Marginal note:Force of law

• 30.1 (1) The provisions of the 1996 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.

• Marginal note:Inconsistency

  (2) The 1996 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.

Marginal note:Explanatory Report

30.2 In interpreting the 1996 Convention, recourse may be had to the Explanatory Report on the 1996 Hague Child Protection Convention, adopted by the Eighteenth Session of the Hague Conference on Private International Law that was held from September 30 to October 19, 1996.

Marginal note:Application

30.3 Sections 30.4 to 31.3 only apply in a province if

• (a) Canada has made a declaration extending the application of the 1996 Convention to that province; and

• (b) the child of the marriage concerned is under 18 years of age.

Jurisdiction

Marginal note:Child habitually resident in State Party

30.4 If a child concerned is habitually resident in a State Party, a court in a province does not have jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order, except in the circumstances set out in section 30.6, 30.7, 30.9 or 31.

Marginal note:Wrongful removal or retention

30.5 In the case of a wrongful removal or retention, as defined in Article 7(2) of the 1996 Convention, a court in a province has jurisdiction to hear and determine an application for a parenting order, a contact order or a variation order in respect of such orders only if the child has become habitually resident in that province and the conditions set out in subparagraphs 7(1)(a) or (b) of that Convention have been met.

Marginal note:Child present in province

30.6 If one or more of the circumstances set out in Article 6 of the 1996 Convention exist and the child is present in a province, a court in that province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act has jurisdiction to hear and determine an application in respect of the child for a parenting order, a contact order or a variation order in respect of either such order.

Marginal note:Divorce proceeding — child habitually resident in State Party

• 30.7 (1) For the purposes of Article 10 of the 1996 Convention, if the child is habitually resident in a State Party, a court in a province that would otherwise have jurisdiction under section 3 of this Act has jurisdiction to make a parenting order or contact order in respect of the child if

  • (a) at least one of the spouses has parental responsibility in respect of the child;

  • (b) the spouses and any other person who has parental responsibility accept the jurisdiction of the court; and

  • (c) the court is satisfied that it is in the best interests of the child to exercise jurisdiction.

• Marginal note:Definition of parental responsibility

  (2) For the purposes of subsection (1), parental responsibility has the same meaning as in Article 1(2) of the 1996 Convention.

Transfer of Jurisdiction

Marginal note:State Party better placed to assess child’s best interests

30.8 For the purposes of Articles 8 and 9 of the 1996 Convention, a court in the province in which a child is habitually resident that would otherwise have jurisdiction under any of sections 3 to 6 of this Act, or that has jurisdiction under section 30.6 of this Act, may decline to exercise jurisdiction to make, in respect of the child, a parenting order, a contact order or a variation order in respect of such an order if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the court and the competent authority of a State Party that the latter will have jurisdiction.

Marginal note:Canadian court better placed to assess child’s best interests

30.9 For the purposes of Articles 8 and 9 of the 1996 Convention, only the court in a province that would otherwise have jurisdiction under any of sections 3 to 5 of this Act may exercise jurisdiction to make a parenting order, a contact order or a variation order in respect of such orders if the conditions of Article 8 or 9, as the case may be, are fulfilled and there is agreement between the competent authority of a State Party and the court that the latter will have jurisdiction.

Urgency

Marginal note:Urgent cases

31 For the purposes of Article 11 of the 1996 Convention, a court in a province that does not have jurisdiction under sections 30.4 to 30.9 of this Act but that would otherwise have jurisdiction under any of sections 3 to 5 of this Act, may, in urgent cases, make a parenting order, a contact order or a variation order in respect of either such order if the child who would be the subject of the order is present in that province.

Recognition

Marginal note:Recognition by operation of law

• 31.1 (1) For the purposes of Article 23 of the 1996 Convention, a measure taken by a competent authority of a State Party is a measure that has the effect of varying, rescinding or suspending a parenting order or contact order.

• Marginal note:Measure taken deemed to be variation order

  (2) A measure taken by a competent authority of a State Party that is recognized by operation of law under Article 23(1) of the 1996 Convention is deemed to be an order made under section 17 of this Act.

• Marginal note:Extent of validity

  (3) Despite subsection 20(2), the measure referred to in subsection (2) is valid only in any province to which the 1996 Convention applies.

Marginal note:Jurisdiction respecting recognition

• 31.2 (1) For the purposes of Article 24 of the 1996 Convention and on application by an interested person, a court in a province has jurisdiction to decide on the recognition of a measure referred to in section 31.1 of this Act if there is a sufficient connection between the matter and the province.

• Marginal note:Effect of recognition

  (2) The court’s decision recognizing the measure is deemed to be an order made under section 17 and has legal effect throughout Canada.

• Marginal note:Effect of non-recognition

  (3) The court’s decision refusing to recognize the measure has legal effect throughout Canada.

Marginal note:Enforcement

31.3 For the purposes of Article 26 of the 1996 Convention, a measure taken by a competent authority of a State Party that is enforceable in that State Party and that is to be enforced in a province may, on application by an interested person,

• (a) be declared to be enforceable by a court in the province and enforced in that province as an order of that court; or

• (b) be registered for the purposes of enforcement in the court in that province and enforced in that province as an order of that court.

Marginal note:Agreements entered into under subsection 25.1(1)

35.2 Any agreement entered into by the Minister of Justice under subsection 25.1(1), as that subsection read immediately before the day on which section 27 of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act comes into force, and that continues to be in force on that day, is deemed to have been entered into under subsection 25.1(1), as that subsection read on that day.

Marginal note:Proceedings commenced before coming into force

35.3 A proceeding commenced under this Act before the day on which this section comes into force and not finally disposed of before that day shall be dealt with and disposed of in accordance with this Act as it reads as of that day.

Marginal note:Person deemed to have parenting time and decision-making responsibility

35.4 Unless a court orders otherwise,

• (a) a person who had custody of a child by virtue of a custody order made under this Act, immediately before the day on which this section comes into force, is deemed as of that day, to be a person to whom parenting time and decision-making responsibility have been allocated; and

• (b) a spouse or former spouse who had access to a child by virtue of a custody order made under this Act, immediately before the day on which this section comes into force, is deemed as of that date, to be a person to whom parenting time has been allocated.

Marginal note:Person deemed to have contact order

35.5 If, immediately before the day on which this section comes into force, a person who is not a spouse or former spouse had access to a child by virtue of a custody order made under this Act, then, as of that day, unless a court orders otherwise, that person is deemed to be a person who has contact with the child under a contact order.

Marginal note:No notice

35.6 A person who is deemed under section 35.4, to be a person to whom parenting time or decision-making responsibility has been allocated is not required to give notice under either section 16.8 or 16.9 if a custody order to which they are a party specifies that no notice is required in respect of a change in the place of residence by the person or a child to whom the order relates.

Marginal note:No change in circumstances

35.7 For the purposes of subsection 17(5), as enacted by subsection 13(2) of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, the coming into force of that Act does not constitute a change in the circumstances of the child.

Marginal note:Variation of orders previously made

35.8 An order made before the day on which this section comes into force under subsection 16(1), as that subsection read immediately before that day, or an order made in proceedings disposed of by the court in the manner described in section 35.3, may, as of that day, if it is still in effect, be varied, rescinded or suspended in accordance with section 17, as amended by section 13 of An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act and the Garnishment, Attachment and Pension Diversion Act and to make consequential amendments to another Act, as if the order were a parenting order or contact order.

Marginal note:Provisional orders

35.9 If, before the day on which this section comes into force, a provisional order was made under subsection 18(2) as it read immediately before that day, the provisional order is deemed, as of that day, to be an application made under in subsection 18.1(3) and shall be dealt with and disposed of as such.

Marginal note:Designation

5 The Minister and a province may designate, in an agreement made under section 3, one or more provincial child support services, provincial enforcement services, designated authorities and central authorities for the purposes of this Part.

Marginal note:Agreement with police force

• 5.1 (1) The Minister may, on behalf of the Government of Canada, enter into an agreement with any police force in Canada for the search for and the release of information under this Part.

• Marginal note:Contents of agreement

  (2) The agreement must provide for the establishment of safeguards for the protection of information released under this Part.

Applications for the Release of Information

General Provisions

Marginal note:Form of application

6.1 An application under this Part for the release of information must be in the form approved by the Minister and contain the information prescribed by the regulations.

Marginal note:Provincial enforcement service acting on behalf of other entities

6.2 For the purposes of this Part, a provincial enforcement service may act on behalf of a provincial child support service, designated authority or central authority.

Court

Marginal note:Application to court

7 Any person, body or service that is seeking to have a support provision established or varied or that is entitled to have a family provision enforced may, on application, which may be made ex parte, request that a court authorize an official of the court to make an application under section 12.

Marginal note:Contents of application — establishment or variation of support provision

• 8 (1) The application under section 7 in relation to the establishment or variation of a support provision must be accompanied by

  • (a) an affidavit that sets out the reasons for the making of the application; and

  • (b) in the case of an application in relation to the variation of a support provision, a copy of the order that contains the support provision.

• Marginal note:Ex parte application

  (2) If the application is made ex parte, the affidavit referred to in paragraph (1)(a) must also

  • (a) state that reasonable steps have been taken to locate the person in respect of whom the applicant is seeking to have a support provision established or varied and that the person has not been located; and

  • (b) set out the particulars of those reasonable steps.

• Marginal note:Ex parte application by individual

  (3) If the application is made ex parte by an individual,

  • (a) the application must also be accompanied by the results of a recent criminal record check in respect of the applicant and copies of the documents referred to in subparagraph (b)(ii), if any; and

  • (b) the affidavit referred to in paragraph (1)(a) must also

    • (i) state that the sole purpose of the application is to obtain information for the establishment or variation of a support provision,

    • (ii) state whether or not there is a court order, agreement, undertaking or recognizance or any other document that is of a similar nature that restricts the applicant’s communication or contact with the person referred to in paragraph 2(a), or with the child or children that is, are or may be the subject of the support provision, or there is a proceeding respecting such a restriction,

    • (iii) state whether or not the applicant has caused or has attempted to cause physical harm to the person, child or children or has caused them to fear for their safety or security or that of another person, and

    • (iv) state whether or not the applicant has been charged with or found guilty of an offence against the person, child or children.

Marginal note:Contents of application — enforcement of family provision

• 9 (1) The application under section 7 in relation to the enforcement of a family provision must be accompanied by

  • (a) an affidavit that

    • (i) sets out the reasons for the making of the application,

    • (ii) alleges a breach of the family provision, and

    • (iii) sets out particulars of the breach and identifies the person who

      • (A) if the family provision is a support provision, is in arrears, or

      • (B) if the family provision is a parenting provision, contact provision, custody provision or access provision, is believed to have with them the child or children who is or are the subject of the provision; and

  • (b) a copy of the order containing the family provision.

• Marginal note:Ex parte application

  (2) If the application is made ex parte, the affidavit referred to in paragraph (1)(a) must also

  • (a) state that reasonable steps have been taken to locate the person, child or children referred to in subparagraph (1)(a)(iii) and that the person, child or children has or have not been located; and

  • (b) set out the particulars of those reasonable steps.

• Marginal note:Ex parte application by individual

  (3) If the application is made ex parte by an individual,

  • (a) the application must also be accompanied by the results of a recent criminal record check in respect of the applicant and copies of the documents referred to in subparagraph (b)(ii), if any; and

  • (b) the affidavit referred to in paragraph (1)(a) must also

    • (i) state that the sole purpose of the application is to obtain information to enforce the family provision,

    • (ii) state whether or not there is a court order, agreement, undertaking or recognizance or any other document that is of a similar nature that restricts the applicant’s communication or contact with the person, child or children referred to in subparagraph (1)(a)(iii), or there is a proceeding respecting such a restriction,

    • (iii) state whether or not the applicant has caused or has attempted to cause physical harm to the person, child or children or has caused them to fear for their safety or security or that of another person, and

    • (iv) state whether or not the applicant has been charged with or found guilty of an offence against the person, child or children.

Marginal note:Authorization

10 A court seized of a valid application under section 7 may make an order in writing authorizing an official of the court to make an application under section 12, if the court is satisfied

• (a) that the sole purpose of the application is to obtain information for the establishment or variation of a support provision or the enforcement of a family provision;

• (b) that the order is not likely to jeopardize the safety or security of any person; and

• (c) in the case of an ex parte application, that the steps referred to in paragraph 8(2)(a) or paragraph 9(2)(a), as the case may be, have been taken.

Marginal note:Non-disclosure of order

11 In the case of an application made ex parte by an individual, the court may order that the Minister shall not, under section 12.1, send to the person referred to in paragraph 8(2)(a) or 9(2)(a), as the case may be, a copy of the order that authorizes the making of the application and a notice informing them that information will be released.

Marginal note:Application for release of information

• 12 (1) An official who is authorized to do so under section 10 may apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the official.

• Marginal note:Supporting documents

  (2) The application must be accompanied by a copy of the order made under section 10 that authorizes the making of the application.

Marginal note:Release of information — duty to inform

12.1 Unless the court orders otherwise, if the application is made ex parte by an individual, the Minister shall release information under this Part to the official who made the application only if the Minister has sent to the person referred to in paragraph 8(2)(a) or 9(2)(a) a copy of the order that authorizes the making of the application and a notice informing them that information will be released.

Marginal note:Information given to court

• 13 (1) If information is released under this Part to an official who is authorized under section 10 to apply for the release under section 12, the official shall give the information to the court that granted the authorization.

• Marginal note:Sealing of information

  (2) The information received by the official and subsequently given to the court shall be sealed and kept in a location to which the public has no access.

• Marginal note:Disclosure of information

  (3) The court may, for the purpose of establishing or varying a support provision or enforcing a family provision, disclose the information to any person, service or body or official of the court that it considers appropriate and may make any order to protect the confidentiality of the information.

Peace Officer

Marginal note:Application for release of information

• 14 (1) A peace officer who is investigating a child abduction under section 282 or 283 of the Criminal Code may apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the peace officer.

• Marginal note:Supporting documents

  (2) The application must be accompanied by an affidavit submitted by the peace officer in accordance with subsection (3).

• Marginal note:Contents of affidavit

  (3) The affidavit must

  • (a) state that the officer has reasonable grounds to believe that an offence referred to in section 282 or 283 of the Criminal Code has been committed;

  • (b) state that the information will be used in the investigation of the offence;

  • (c) identify the person who is believed to have committed the offence and the child or children who is or are alleged to have been abducted; and

  • (d) state that reasonable steps have been taken to locate the person, child or children and that the person, child or children has or have not been located, and set out particulars of those reasonable steps.

Provincial Enforcement Service

Marginal note:Application for release of information

• 15 (1) A provincial enforcement service may, for a purpose described in subsection (2), apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the provincial enforcement service.

• Marginal note:Purposes

  (2) An application may be made

  • (a) to obtain information about a person who is in arrears under a support provision in order to enforce the provision;

  • (b) to locate a person who is in breach of a parenting provision, a contact provision, a custody provision or an access provision and who is believed to have with them the child or children who is or are the subject of the provision; or

  • (c) to locate a creditor or debtor under a support provision.

Provincial Child Support Service

Marginal note:Application for release of information

15.1 A provincial child support service may, in order to calculate or recalculate the amount of child support, apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the provincial child support service.

Designated Authority

Marginal note:Application for release of information

• 16 (1) A designated authority may, for a purpose described in subsection (2), apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the designated authority.

• Marginal note:Purposes

  (2) An application may be made

  • (a) to obtain assistance with the processing of an application made

    • (i) under the Divorce Act to obtain, vary, rescind or suspend a support order, or to calculate or recalculate the amount of child support, if the parties habitually reside in different provinces, or

    • (ii) under a provincial Act in respect of reciprocal enforcement of support orders that would establish or vary a support order; or

  • (b) to obtain assistance with the processing of an application that could be made

    • (i) under the Divorce Act to obtain, vary, rescind or suspend a support order, or to calculate or recalculate the amount of child support, if the prospective parties habitually reside in different provinces, or

    • (ii) under a provincial Act in respect of reciprocal enforcement of support orders that would establish or vary a support order.

Central Authority

Marginal note:Application for release of information

• 16.1 (1) A central authority may, for a purpose described in subsection (2), apply to the Minister, in the time and manner prescribed by the regulations, to have the information banks searched in order to release the information prescribed by the regulations to the central authority.

• Marginal note:Purposes

  (2) An application may be made

  • (a) to respond to a request for assistance made under a convention that is prescribed by the regulations for the purpose of this paragraph; or

  • (b) to obtain assistance with the processing of an application made under a convention that is prescribed by the regulations for the purpose of this paragraph.

Search of Information Banks and Release of Information

Marginal note:Request to information bank directors

• 17 (1) On the receipt of an application under this Part, the Minister shall immediately transmit a search request to the information bank directors.

• Marginal note:Request by Minister

  (2) On the Minister’s own initiative and for a purpose described in subsection (3), the Minister may transmit a search request to the information bank directors in order to release the information prescribed by the regulations to the Minister.

• Marginal note:Purposes

  (3) A request may be made

  • (a) to locate a person named in a request for assistance made under a convention that is prescribed by the regulations for the purpose of this paragraph; or

  • (b) to locate a person named in an application made under a convention that is prescribed by the regulations for the purpose of this paragraph.

• Marginal note:Search of information banks

  (4) On the receipt of a search request, the information bank directors shall, in accordance with the regulations, cause their designated information banks to be searched immediately and then periodically during the 12-month period following the receipt of the request.

Marginal note:Release of information — information banks

18 Subject to the regulations, information in an information bank may be released by one information bank director to another information bank director or to the Minister to assist in conducting a search under this Part.

Marginal note:Transmission of information to Minister

19 If information requested under this Part is found in an information bank, the information bank director of that information bank shall cause to be transmitted to the Minister, in accordance with the regulations, all information obtained during the search.

Marginal note:Release of information by Minister

19.1 Subject to section 20, the Minister shall release to the applicant the information transmitted to the Minister under this Part.

Marginal note:Safeguards — provincial entities

• 20 (1) The Minister shall release information under this Part to an applicant that is a provincial enforcement service, a provincial child support service, a designated authority or a central authority only if the province of the applicant has entered into an agreement under section 3 and the Minister is satisfied that the safeguards provided for in the agreement are in place.

• Marginal note:Safeguards — peace officer

  (2) The Minister shall release information under this Part to an applicant who is a peace officer only if the police force to which the officer belongs has entered into an agreement under section 5.1 and the Minister is satisfied that the safeguards provided for in the agreement are in place.

Marginal note:Search request — Minister’s own initiative

20.1 If a search request is made by the Minister on the Minister’s own initiative under subsection 17(2), the Minister may release the information to a person that the Minister considers appropriate.

Garnishment of Federal Moneys to Satisfy Orders

Marginal note:Her Majesty may be garnisheed

24 Despite any other Act of Parliament preventing the garnishment of Her Majesty, Her Majesty may, for the enforcement of orders, be garnisheed in accordance with this Part in respect of all garnishable moneys.

Marginal note:Location of garnishable moneys

27 For the purposes of this Part, garnishable moneys are deemed to be located in the province in which a garnishee summons is issued in respect of the moneys.

Marginal note:Service binds Her Majesty for 12 years

28 Subject to the provisions of this Part and the regulations, service on the Minister of an application in the form approved by the Minister that contains the information prescribed by the regulations and of a garnishee summons binds Her Majesty for 12 years in respect of all garnishable moneys payable to the judgment debtor named in the garnishee summons.

Marginal note:Calculation of 12-year period

29 For the purposes of section 28, the 12-year period begins on the expiry of the period prescribed by the regulations that immediately follows the service of the garnishee summons on the Minister.

Marginal note:Her Majesty no longer bound

30 A garnishee summons against a judgment debtor ceases to bind Her Majesty after the periods and in the circumstances specified in the regulations.

Marginal note:Method of service

34 In addition to any method of service permitted in accordance with provincial garnishment law, service of documents on the Minister under this Part may be effected by any method prescribed by the regulations.

Marginal note:Notice to ministers

36 Immediately after being served with the documents referred to in section 28, the Minister shall notify every minister who is responsible for garnishable moneys of the service of the documents and shall provide them with the information that may be necessary to assist them in determining whether any garnishable moneys are payable to the judgment debtor.

Marginal note:Initial report by ministers

37 Immediately after being notified under section 36, each minister who is responsible for garnishable moneys shall report to the Minister on whether those moneys are payable or are foreseeably payable to the judgment debtor.

Marginal note:Demand under Income Tax Act

37.1 For the purposes of section 37, if the Minister of National Revenue knows or suspects that garnishable moneys would be payable to a judgment debtor were the debtor to file a return of income for a taxation year, that Minister may, in accordance with subsection 150(2) of the Income Tax Act, demand that the debtor file a return of income for that taxation year.

Marginal note:Right to search information banks

40 Subject to the regulations, the Minister and every minister responsible for garnishable moneys is entitled to have any of the information banks that may be searched under Part I searched for any information necessary to confirm the identity of any judgment debtor.

Donner suite à un bref de saisie-arrêt

Marginal note:Délai pour donner suite

41 Le ministre donne suite au bref de saisie-arrêt, au nom de Sa Majesté, dans le délai réglementaire.

Marginal note:Methods of response

42 In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the Minister may respond to a garnishee summons by any method prescribed by the regulations.

Marginal note:Donner suite par courrier recommandé

43 Si le ministre donne suite à un bref de saisie-arrêt par courrier recommandé, le récépissé conforme aux règlements pris, en matière de courrier recommandé, en vertu de la Loi sur la Société canadienne des postes est admissible en preuve et établit, sauf preuve contraire, que le ministre y a donné suite.

• Marginal note:Effect of payment to provincial enforcement service

  (2) If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by the Minister is, to the extent of the payment, a good and sufficient discharge of Her Majesty’s liability under this Part and under the legislation governing the garnishable moneys.

Marginal note:Notice to judgment debtor

45 If a garnishee summons is served on the Minister under this Part, the Minister may notify the judgment debtor named in the garnishee summons of that service.

Recovery of Excess Payments

Marginal note:Payments to judgment debtor

49 If a judgment debtor is paid any garnishable moneys to which the judgment debtor is not entitled by reason of garnishment proceedings permitted under this Part, the amount that is paid is a debt due to Her Majesty by the judgment debtor and may be recovered as such in accordance with the Financial Administration Act or the legislation governing the particular garnishable moneys paid to the judgment debtor.

Marginal note:Payments to party that instituted proceedings

50 Subject to section 51, if garnishable moneys are paid under this Part to or for the benefit of a party that instituted garnishment proceedings permitted under this Part in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to Her Majesty by that party and may be recovered as such in accordance with the Financial Administration Act or by way of deduction from, or set-off or compensation against, any garnishable moneys payable to or for the benefit of that party under this Part.

Marginal note:Multiple garnishee summonses

53 If more than one garnishee summons is served on the Minister under this Part in respect of the same judgment debtor, the garnishee summonses shall be honoured in the manner specified in the regulations.

Marginal note:Chargeable against judgment debtor

59 Subject to any regulations respecting the remittance of the fee referred to in section 58, it is a debt due to Her Majesty by the judgment debtor and may, subject to section 60, be recovered by way of deduction from, or set-off or compensation against, any garnishable moneys payable to the judgment debtor.

Marginal note:Limite

60 Les frais visés à l’article 58 ne peuvent être recouvrés sur les sommes saisissables à verser en exécution d’un bref de saisie-arrêt.

Marginal note:Amendments to schedule

63 The Governor in Council may, by order, amend the schedule to add to or delete any type or class of licence that may be issued to an individual under an Act of Parliament or under a prerogative of the Crown.

Marginal note:Purpose of Part

64 The purpose of this Part is to help provincial enforcement services enforce support orders by providing for the denial of certain licences to debtors who are in persistent arrears.

Marginal note:Informing appropriate Ministers

68 Immediately on the receipt of a licence denial application, the Minister shall notify each appropriate Minister of the receipt of the application, and shall provide them with any information that may be necessary to assist them in determining whether the debtor to whom the application relates is the holder of a schedule licence.

Marginal note:Right to search information banks

68.1 Subject to the regulations, the Minister and the appropriate Minister are entitled to have any of the information banks that may be searched under Part I searched for any information necessary to confirm the identity of the debtor.

Marginal note:Regulations

78 The Governor in Council may make regulations

• (a) respecting the conducting of searches for the purposes of this Part of the information banks that may be searched under Part I;

• (b) prescribing anything that by this Part is to be or may be prescribed.

General Provisions

No Liability

Marginal note:No liability

78.1 No action lies against Her Majesty in right of Canada, any Minister of the Crown in right of Canada or any officer or employee of Her Majesty in right of Canada for anything done or omitted to be done, or purported to be done or omitted to be done, in good faith in the exercise of any power or performance of any duty under Part I or III.

Research

Marginal note:Matters governed by this Act

78.2 The Minister may undertake research related to matters governed by this Act.

Marginal note:Prohibition

80 An officer or employee of, or person who is hired on a contractual basis by, Her Majesty in right of Canada who obtains personal information, as defined in section 3 of the Privacy Act, under this Act shall not, except in performing their duties under this Act or if so authorized under another Act of Parliament, knowingly communicate the information or allow it to be communicated to any person, or knowingly allow any person to inspect or have access to any statement or other writing containing the information.

Garnishment

Marginal note:Garnishment permitted

3 Despite any law preventing the garnishment of Her Majesty or a parliamentary entity, both may be garnisheed under this Part.

Marginal note:Garnishment under Acts of Parliament

3.1 For greater certainty, Her Majesty and parliamentary entities are bound by the law relating to garnishment provided under any Act of Parliament.

Marginal note:Service binds Her Majesty

• 6 (1) Subject to this Division, service on Her Majesty of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds Her Majesty 15 days after the day on which those documents are served.

• Marginal note:When service is effective

  (2) A garnishee summons served on Her Majesty is of no effect unless it is served on Her Majesty in the first 45 days following the first day on which it could have been validly served on Her Majesty.

• Marginal note:Her Majesty no longer bound

  (3) The garnishee summons ceases to bind Her Majesty after the periods and in the circumstances specified in the regulations.

• (i) the salary to be paid, no later than the last day of the second pay period following the pay period in which Her Majesty is bound by the garnishee summons, and

Marginal note:Délai imparti à Sa Majesté pour donner suite

10 Sa Majesté dispose, pour donner suite au bref de saisie-arrêt, des délais suivants :

Marginal note:Canadian Forces

15 In respect of pay and allowances payable to members of the Canadian Forces, Her Majesty is bound by provincial garnishment law to the extent, in the manner, and subject to the terms and conditions that may be provided by or under regulations made under the National Defence Act.

Parliamentary Entities

Marginal note:Garnishment of salaries, remuneration

17 Each parliamentary entity is, subject to this Division and any regulation made under it, bound by provincial garnishment law in respect of

Marginal note:Service binding

• 18 (1) Subject to this Division, service on a parliamentary entity of a garnishee summons, together with a copy of the order against a debtor and an application in the prescribed form, binds the parliamentary entity, 15 days after the day on which those documents are served.

• Marginal note:When service is effective

  (2) A garnishee summons served on the parliamentary entity is of no effect unless it is served in the first 45 days following the first day on which it could have been validly served.

• Marginal note:Parliamentary entity no longer bound

  (3) The garnishee summons ceases to bind the parliamentary entity after the periods and in the circumstances specified in the regulations.

Marginal note:Place of service

• 19 (1) Service of documents on a parliamentary entity in connection with garnishment proceedings permitted by this Division must be effected at the place specified in the regulations.

• Marginal note:Method of service

  (2) In addition to any method of service permitted by the law of a province, service of documents under subsection (1) may be effected by any prescribed method.

Marginal note:Methods of response

• 23 (1) In addition to any method of responding to a garnishee summons permitted by provincial garnishment law, the parliamentary entity may respond to a garnishee summons by any prescribed method.

• Marginal note:Response by registered mail

  (2) If the parliamentary entity responds to a garnishee summons by registered mail, the receipt issued in accordance with regulations relating to registered mail made under the Canada Post Corporation Act shall be received in evidence and is, unless the contrary is shown, proof that the entity has responded to the garnishee summons.

• Marginal note:Effect of payment into court

  (3) A payment into court by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.

• Marginal note:Effect of payment to provincial enforcement service

  (3.1) If provincial garnishment law permits a payment to a provincial enforcement service of the province, a payment to the provincial enforcement service by the parliamentary entity is a good and sufficient discharge of its liability, to the extent of the payment.

• Marginal note:Recovery

  (4) If, in honouring a garnishee summons, a parliamentary entity, through error, pays to a debtor by way of salary or remuneration an amount in excess of the amount that it should have paid to that debtor, the excess is a debt due to the entity by that debtor and may be recovered from the debtor by way of deduction from, or set-off or compensation against, future moneys payable to the debtor as salary or remuneration.

• Marginal note:Recovery from party who instituted proceedings

  (5) If moneys are paid by a parliamentary entity to or for the benefit of a party who instituted garnishment proceedings permitted by this Division in excess of the amount that should be paid to or for the benefit of that party, the excess is a debt due to the entity by that party and may be recovered from the party by way of deduction from, or set-off or compensation against, moneys payable to or for the benefit of that party under this Division.

Marginal note:No execution

26 No execution shall issue on an order made against a parliamentary entity in garnishment proceedings permitted by this Part.

Marginal note:Ranking of Her Majesty

27.1 Her Majesty ranks in priority over the party that instituted the garnishment proceedings permitted under this Part with respect to any moneys that are payable to the debtor even though a garnishee summons in respect of those moneys has been served on Her Majesty or a parliamentary entity and the amount of the indebtedness may be recovered or retained in any manner authorized by law when a debtor is indebted

• (a) to Her Majesty; or

• (b) to Her Majesty in right of a province on account of taxes payable to any province and an agreement exists between Canada and the province under which Canada is authorized to collect the tax on the province’s behalf.

Marginal note:Priority of garnishee summons

27.2 Subject to section 27.1, in the application of this Part, a garnishee summons for a maintenance, alimony or support obligation shall be honoured before any other garnishee summons.

Marginal note:No execution against Her Majesty

28 No execution shall issue on an order made against Her Majesty in garnishment proceedings permitted by this Part.

Marginal note:Prohibition

30 No employee shall be dismissed, suspended or laid off solely on the ground that garnishment proceedings permitted by this Part may be or have been taken with respect to that employee.

Distraction de prestations de pension pour l’exécution d’ordonnances de soutien financier

Marginal note:Application

31 This Part applies only in respect of the enforcement of financial support orders against pension benefits that are payable under the enactments listed in the schedule.

Marginal note:Provision of information

35.3 On application by a person who is entitled to support under a valid and subsisting financial support order, the Minister shall, in accordance with the regulations, provide the person with the prescribed information concerning any matter related to the making of an application under section 35.1.

Marginal note:Representation

35.4 An application under section 35.1 or 35.3 may be made on behalf of a person by any other person or by a provincial enforcement service.

• (c) if the recipient is domiciled in Canada and habitually resident in a province in which there is in force a law of general application permitting garnishment, attachment or diversion of pensions for the enforcement of financial support orders, the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (d) if the recipient is domiciled in Canada and habitually resident elsewhere than in a province described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit,

• (e) if the recipient is domiciled outside Canada and the applicant is habitually resident in a province described in paragraph (c), the amount to be diverted shall be determined in accordance with the law of that province in force at the time of the diversion payment,

• (f) if the recipient is domiciled outside Canada and the applicant is habitually resident in a province other than one described in paragraph (c), the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit, or

• (g) if the recipient and the applicant are domiciled outside Canada and are habitually resident outside Canada, the amount to be diverted shall be the amount required to satisfy the financial support order, up to a maximum of 50% of the recipient’s net pension benefit.

Marginal note:Arrears

40.1 In the case of a financial support order that is an order or judgment for arrears of payments, despite paragraph 36(d), (f) or (g), subsection 37(2) or section 38, 39 or 40, the amount to be diverted may exceed 50% of the recipient’s net pension benefit.

Marginal note:Designation of Minister

40.2 The Governor in Council may, by order, designate one or more federal ministers as the Minister or Ministers for the purposes of any provision of this Part and the enactments set out in items 12 and 16 of the schedule.

Marginal note:Application to vary amount being diverted or to terminate diversion

• 41 (1) When a diversion is being carried out, either the applicant or the recipient may at any time apply to the Minister, in accordance with the regulations, for a variation in the amount being diverted or for termination of the diversion.

• Marginal note:When variation or termination effective

  (2) Despite a recipient’s entitlement under an enactment listed in the schedule, the variation or termination of a diversion is effective only as of the first day of the month after the month in which the Minister receives the duly completed application for variation or termination, as the case may be.

PART IIIGeneral Provisions

Marginal note:Designation of Minister

48 The Governor in Council may, by order, designate one or more federal ministers as the Minister or Ministers for the purposes of any provision of this Part or Part I.

Marginal note:Research

• 49 (1) The Minister may undertake research related to matters governed by this Act.

• Marginal note:Agreement to collect information

  (2) The Minister shall not collect information for the purpose of subsection (1) from a parliamentary entity unless the Minister entered into an agreement to do so with the entity in question.

• Marginal note:Parliamentary entity

  (3) For the purpose of this section, parliamentary entity has the same meaning as in section 2.

Marginal note:Prohibition

50 An officer or employee of, or person who is hired on a contractual basis by, Her Majesty in right of Canada or a parliamentary entity who obtains personal information, as defined in section 3 of the Privacy Act, under this Act shall not, except in performing their duties under this Act or if so authorized under another Act of Parliament, knowingly communicate the information or allow it to be communicated to any person, or knowingly allow any person to inspect or have access to any statement or other writing containing the information.

Marginal note:Offence and punishment

51 Every person who contravenes section 50 is guilty of an offence and liable on summary conviction to a fine not exceeding $1,000 or to imprisonment for a term not exceeding six months, or to both.

• 10 

  Royal Canadian Mounted Police Superannuation Act, Parts I and III.

• (li) section 282 (abduction in contravention of custody order or parenting order),

Marginal note:Abduction in contravention of custody or parenting order

• 282 (1) Every one who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, in contravention of a custody order or a parenting order made by a court anywhere in Canada, with intent to deprive a parent or guardian, or any other person who has the lawful care or charge of that child, of the possession of that child is guilty of

  • (a) an indictable offence and is liable to imprisonment for a term not exceeding ten years; or

  • (b) an offence punishable on summary conviction.

• Marginal note:If no belief in validity of custody order or parenting order

  (2) If a count charges an offence under subsection (1) and the offence is not proven only because the accused did not believe that there was a valid custody order or parenting order but the evidence does prove an offence under section 283, the accused may be convicted of an offence under that section.

Marginal note:Abduction

• 283 (1) Everyone who, being the parent, guardian or person having the lawful care or charge of a child under the age of 14 years, takes, entices away, conceals, detains, receives or harbours that child, whether or not there is an order referred to in subsection 282(1) in respect of the child , with intent to deprive a parent, guardian or any other person who has the lawful care or charge of that child, of the possession of that child, is guilty of