Divorce Act

This Act may be cited as the Divorce Act.

In this Act,

age of majority, in respect of a child, means the age of majority as determined by the laws of the province where the child habitually resides, or, if the child habitually resides outside of Canada, eighteen years of age; (majeur)

appellate court, in respect of an appeal from a court, means the court exercising appellate jurisdiction with respect to that appeal; (cour d’appel)

applicable guidelines means

if both spouses or former spouses are habitually resident in the same province at the time an application is made for a child support order or for a variation order in respect of a child support order or the amount of a child support is to be calculated or recalculated under section 25.01 or 25.1, and that province has been designated by an order made under subsection (5), the laws of the province specified in the order, and

in any other case, the Federal Child Support Guidelines; (lignes directrices applicables)

child of the marriage means a child of two spouses or former spouses who, at the material time,

is under the age of majority and who has not withdrawn from their charge, or

is the age of majority or over and under their charge but unable, by reason of illness, disability or other cause, to withdraw from their charge or to obtain the necessaries of life; (enfant à charge)

child support order means an order made under subsection 15.1(1); (ordonnance alimentaire au profit d’un enfant)

competent authority means, except as otherwise provided, a tribunal or other entity in a country other than Canada, or a subdivision of such a country, that has the authority to make a decision under their law respecting any subject matter that could be dealt with under this Act; (autorité compétente)

contact order means an order made under subsection 16.5(1); (ordonnance de contact)

corollary relief proceeding means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a parenting order; (action en mesures accessoires)

court, in respect of a province, means and includes such other court in the province the judges of which are appointed by the Governor General as is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this Act; (tribunal)

for the Province of Ontario, the Superior Court of Justice,

for the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court of the Province,

for the Province of Quebec, the Superior Court,

for the Provinces of Nova Scotia, British Columbia and Prince Edward Island, the Supreme Court of the Province,

for the Province of New Brunswick, Manitoba, Saskatchewan or Alberta, the Court of Queen’s Bench for the Province, and

for Yukon or the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice,

custody[Repealed, 2019, c. 16, s. 1]

custody order[Repealed, 2019, c. 16, s. 1]

decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of

health;

education;

culture, language, religion and spirituality; and

significant extra-curricular activities; (responsabilités décisionnelles)

divorce proceeding means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a parenting order; (action en divorce)

family dispute resolution process means a process outside of court that is used by parties to a family law dispute to attempt to resolve any matters in dispute, including negotiation, mediation and collaborative law; (mécanisme de règlement des différends familiaux)

family justice services means public or private services intended to help persons deal with issues arising from separation or divorce; (services de justice familiale)

family member includes a member of the household of a child of the marriage or of a spouse or former spouse as well as a dating partner of a spouse or former spouse who participates in the activities of the household; (membre de la famille)

family violence means any conduct, whether or not the conduct constitutes a criminal offence, by a family member towards another family member, that is violent or threatening or that constitutes a pattern of coercive and controlling behaviour or that causes that other family member to fear for their own safety or for that of another person — and in the case of a child, the direct or indirect exposure to such conduct — and includes

physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;

sexual abuse;

threats to kill or cause bodily harm to any person;

harassment, including stalking;

the failure to provide the necessaries of life;

psychological abuse;

financial abuse;

threats to kill or harm an animal or damage property; and

the killing or harming of an animal or the damaging of property; (violence familiale)

Federal Child Support Guidelines means the guidelines made under section 26.1; (lignes directrices fédérales sur les pensions alimentaires pour enfants)

legal adviser means any person who is qualified, in accordance with the law of a province, to represent or provide legal advice to another person in any proceeding under this Act; (conseiller juridique)

order assignee means a minister, member, agency or public body to whom a support order is assigned under subsection 20.1(1); (cessionnaire de la créance alimentaire)

parenting order means an order made under subsection 16.1(1); (ordonnance parentale)

parenting time means the time that a child of the marriage spends in the care of a person referred to in subsection 16.1(1), whether or not the child is physically with that person during that entire time; (temps parental)

provincial child support service means any service, agency or body designated in an agreement with a province under subsection 25.01(1) or 25.1(1); (service provincial des aliments pour enfants)

relocation means a change in the place of residence of a child of the marriage or a person who has parenting time or decision-making responsibility — or who has a pending application for a parenting order — that is likely to have a significant impact on the child’s relationship with

a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or

a person who has contact with the child under a contact order; (déménagement important)

spousal support order means an order made under subsection 15.2(1); (ordonnance alimentaire au profit d’un époux)

spouse includes, in subsection 6(1) and sections 15.1 to 16.96, 21.1, 25.01 and 25.1, a former spouse; (époux)

support order means a child support order or a spousal support order; (ordonnance alimentaire)

variation order means an order made under subsection 17(1); (ordonnance modificative)

variation proceeding means a proceeding in a court in which either or both former spouses seek a variation order. (action en modification)

For the purposes of the definition child of the marriage in subsection (1), a child of two spouses or former spouses includes

any child for whom they both stand in the place of parents; and

any child of whom one is the parent and for whom the other stands in the place of a parent.

The use of the term “application” to describe a proceeding under this Act in a court shall not be construed as limiting the name under which and the form and manner in which that proceeding may be taken in that court, and the name, manner and form of the proceeding in that court shall be such as is provided for by the rules regulating the practice and procedure in that court.

The use in section 21.1 of the terms “affidavit” and “pleadings” to describe documents shall not be construed as limiting the name that may be used to refer to those documents in a court and the form of those documents, and the name and form of the documents shall be such as is provided for by the rules regulating the practice and procedure in that court.

The Governor in Council may, by order, designate a province for the purposes of the definition applicable guidelines in subsection (1) if the laws of the province establish comprehensive guidelines for the determination of child support that deal with the matters referred to in section 26.1. The order shall specify the laws of the province that constitute the guidelines of the province.

The guidelines of a province referred to in subsection (5) include any amendments made to them from time to time.

A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.

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.

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:

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;

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

in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

A court in a province has jurisdiction to hear and determine a corollary relief proceeding if

either former spouse is habitually resident in the province at the commencement of the proceeding; or

both former spouses accept the jurisdiction of the court.

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.

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:

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;

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

in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

A court in a province has jurisdiction to hear and determine a variation proceeding if

either former spouse is habitually resident in the province at the commencement of the proceeding; or

both former spouses accept the jurisdiction of the court.

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.

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:

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;

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

in any other case, the court that retains jurisdiction is the court that the Federal Court determines to be the most appropriate.

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.

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.

[Repealed, 2019, c. 16, s. 5]

Notwithstanding sections 3 to 5, a court in a province to which a proceeding is transferred under this section has exclusive jurisdiction to hear and determine the proceeding.

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.

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.

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.

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

that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;

that there has been undue delay in contesting the removal or retention by those persons; or

that a court in the province in which the child is present is better placed to hear and determine the application.

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,

the court shall transfer the application to the court in the province in which the child is present; and

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.

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”.

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.

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

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

the urgency of the situation;

the importance of avoiding a multiplicity of proceedings and inconsistent decisions; and

the importance of discouraging child abduction.

The jurisdiction conferred on a court by this Act to grant a divorce shall be exercised only by a judge of the court without a jury.

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.

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.

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.

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.

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.

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.

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

to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and

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.

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

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;

to inform the person of the family justice services known to the legal adviser that might assist the person

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

in complying with any order or decision made under this Act; and

to inform the person of the parties’ duties under this Act.

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.

The purpose of this section is to facilitate

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

the coordination of proceedings.

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: 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).

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

a child protection order, proceeding, agreement or measure; or

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

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

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

contacting or communicating with a specified person, either directly or indirectly;

attending at or being within a certain distance of a specified place or location;

engaging in harassing or threatening conduct directed at a specified person;

occupying a family home or a residence; or

engaging in family violence.

A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of a marriage is established only if

the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

committed adultery, or

treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

For the purposes of paragraph (2)(a),

spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

[Repealed, 2019, c. 16, s. 9]

In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall

adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

with the consent of the spouses or in the discretion of the court, nominate to assist the spouses to achieve a reconciliation.

a person with experience or training in marriage counselling or guidance, or

in special circumstances, some other suitable person,

Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.

No person nominated by a court under this section to assist spouses to achieve a reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose.

Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings.

In a divorce proceeding, it is the duty of the court

to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;

to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and

where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.

Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).

For the purposes of this section, a continuation or resumption of cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute condonation.

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.

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