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

Conversion of Applications

Marginal note:Application to court

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

• Marginal note:Conversion and sending of application

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

• Marginal note:Exception

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

• Marginal note:Application of certain provisions

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

Marginal note:No action by respondent

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

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

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

• Marginal note:Assignment of support order

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

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

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

• Marginal note:Application of certain provisions

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

Proceedings Between a Province and a Designated Jurisdiction

Receipt and Sending of Designated Jurisdictions’ Applications

Marginal note:If applicant resides in designated jurisdiction

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

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

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

• Marginal note:Procedure

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

• Marginal note:Application

  (3) For the purposes of subsection (1), a former spouse shall submit, through the responsible authority in the designated jurisdiction, an application to the designated authority of the province in which the applicant believes the respondent is habitually resident.

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

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

• Marginal note:Provincial child support service

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

• Marginal note:Service on respondent by court

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

• Marginal note:Service not possible — returned application

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

• Marginal note:Return of application to responsible authority

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

• Marginal note:Applicant need not be served

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

• Marginal note:Adjournment of proceeding

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

• Marginal note:Request for further evidence

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

• Marginal note:Dismissal of application

  (12) If the further evidence required under subsection (11) is not received by the court within 12 months after the day on which the court makes the request to the designated authority, the court may dismiss the application referred to in subsection (3) and terminate the interim order. The dismissal of the application does not preclude the applicant from making a new application.

• Marginal note:Order

  (13) The court may, on the basis of the evidence and the submissions of the former spouses, whether presented orally before the court or by affidavit or any means of telecommunication permitted by the rules regulating the practice and procedure in that court, make a support order or an order varying, rescinding or suspending a support order, retroactively or prospectively.

• Marginal note:Provisional order

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

• Marginal note:Application of certain provisions

  (15) Subsections 15.1(3) to (8) and 15.2(3) to (6), section 15.3 and subsections 17(3) to (4.1), (6) to (7), (10) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (13).

• Marginal note:Broad interpretation of documents

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

Recognition of Decisions of Designated Jurisdiction

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

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

• Marginal note:Registration and recognition

  (2) The decision of the designated jurisdiction shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.

• Marginal note:Enforcement

  (3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.

Legal Effect, Enforcement, Compliance and Assignment

Definition of court

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

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

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

• Marginal note:Enforcement

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

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

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

• Marginal note:Variation of orders

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

Marginal note:Assignment of order

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

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

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

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

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

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

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

• Marginal note:Rights

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

• Marginal note:Rights — public body

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

• Marginal note:Definition of State Party

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

Appeals

Marginal note:Appeal to appellate court

• 21 (1) Subject to subsections (2) and (3), an appeal lies to the appellate court from any judgment or order, whether final or interim, rendered or made by a court under this Act.

• Marginal note:Restriction on divorce appeals

  (2) No appeal lies from a judgment granting a divorce on or after the day on which the divorce takes effect.

• Marginal note:Restriction on order appeals

  (3) No appeal lies from an order made under this Act more than thirty days after the day on which the order was made.

• Marginal note:Extension

  (4) An appellate court or a judge thereof may, on special grounds, either before or after the expiration of the time fixed by subsection (3) for instituting an appeal, by order extend that time.

• Marginal note:Powers of appellate court

  (5) The appellate court may

  • (a) dismiss the appeal; or

  • (b) allow the appeal and

    • (i) render the judgment or make the order that ought to have been rendered or made, including such order or such further or other order as it deems just, or

    • (ii) order a new hearing where it deems it necessary to do so to correct a substantial wrong or miscarriage of justice.

• Marginal note:Procedure on appeals

  (6) Except as otherwise provided by this Act or the rules or regulations, an appeal under this section shall be asserted, heard and decided according to the ordinary procedure governing appeals to the appellate court from the court rendering the judgment or making the order being appealed.

General

• 21.1 (1) [Repealed, 2019, c. 16, s. 17]

• Marginal note:Affidavit re removal of barriers to religious remarriage

  (2) In any proceedings under this Act, a spouse (in this section referred to as the “deponent”) may serve on the other spouse and file with the court an affidavit indicating

  • (a) that the other spouse is the spouse of the deponent;

  • (b) the date and place of the marriage, and the official character of the person who solemnized the marriage;

  • (c) the nature of any barriers to the remarriage of the deponent within the deponent’s religion the removal of which is within the other spouse’s control;

  • (d) where there are any barriers to the remarriage of the other spouse within the other spouse’s religion the removal of which is within the deponent’s control, that the deponent

    • (i) has removed those barriers, and the date and circumstances of that removal, or

    • (ii) has signified a willingness to remove those barriers, and the date and circumstances of that signification;

  • (e) that the deponent has, in writing, requested the other spouse to remove all of the barriers to the remarriage of the deponent within the deponent’s religion the removal of which is within the other spouse’s control;

  • (f) the date of the request described in paragraph (e); and

  • (g) that the other spouse, despite the request described in paragraph (e), has failed to remove all of the barriers referred to in that paragraph.

• Marginal note:Powers of court where barriers not removed

  (3) Where a spouse who has been served with an affidavit under subsection (2) does not

  • (a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serve on the deponent and file with the court an affidavit indicating that all of the barriers referred to in paragraph (2)(e) have been removed, and

  • (b) satisfy the court, in any additional manner that the court may require, that all of the barriers referred to in paragraph (2)(e) have been removed,

  the court may, subject to any terms that the court considers appropriate,

  • (c) dismiss any application filed by that spouse under this Act, and

  • (d) strike out any other pleadings and affidavits filed by that spouse under this Act.

• Marginal note:Special case

  (4) Without limiting the generality of the court’s discretion under subsection (3), the court may refuse to exercise its powers under paragraphs (3)(c) and (d) where a spouse who has been served with an affidavit under subsection (2)

  • (a) within fifteen days after that affidavit is filed with the court or within such longer period as the court allows, serves on the deponent and files with the court an affidavit indicating genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e); and

  • (b) satisfies the court, in any additional manner that the court may require, that the spouse has genuine grounds of a religious or conscientious nature for refusing to remove the barriers referred to in paragraph (2)(e).

• Marginal note:Affidavits

  (5) For the purposes of this section, an affidavit filed with the court by a spouse must, in order to be valid, indicate the date on which it was served on the other spouse.

• Marginal note:Where section does not apply

  (6) This section does not apply where the power to remove the barrier to religious remarriage lies with a religious body or official.