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Civil Marriage of Non-residents Act (S.C. 2013, c. 30)

Assented to 2013-06-26

Civil Marriage of Non-residents Act

S.C. 2013, c. 30

Assented to 2013-06-26

An Act to amend the Civil Marriage Act

SUMMARY

This enactment amends the Civil Marriage Act in order to provide that all marriages performed in Canada between non-residents, whether they are of the same sex or of the opposite sex, that would be valid in Canada if the spouses were domiciled in Canada are valid for the purposes of Canadian law even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile. It also establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

SHORT TITLE

Marginal note:Short title

 This Act may be cited as the Civil Marriage of Non-residents Act.

2005, c. 33CIVIL MARRIAGE ACT

 The Civil Marriage Act is amended by adding the following after section 1:

PART 1MARRIAGE

 Section 5 of the Act and the headings before it are replaced by the following:

Marginal note:Marriage of non-resident persons
  • 5. (1) A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile.

  • Marginal note:Retroactivity

    (2) Subsection (1) applies retroactively to a marriage that would have been valid under the law that was applicable in the province where the marriage was performed but for the lack of capacity of either or both of the spouses to enter into it under the law of their respective state of domicile.

  • Marginal note:Order dissolving marriage

    (3) Any court order, made in Canada or elsewhere before the coming into force of this subsection, that declares the marriage to be null and void or that grants a divorce to the spouses dissolves the marriage, for the purposes of Canadian law, as of the day on which the order takes effect.

 The heading before section 6 and sections 6 to 15 of the Act are replaced by the following:

PART 2DISSOLUTION OF MARRIAGE FOR NON-RESIDENT SPOUSES

Definition of “court”

6. In this Part, “court”, in respect of a province, means

  • (a) for Ontario, the Superior Court of Justice;

  • (b) for Quebec, the Superior Court;

  • (c) for Nova Scotia and British Columbia, the Supreme Court of the province;

  • (d) for New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench for the province;

  • (e) for Prince Edward Island and Newfoundland and Labrador, the trial division of the Supreme Court of the province; and

  • (f) for Yukon and the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice.

It also means any other court in the province whose judges are appointed by the Governor General and that is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this Part.

Marginal note:Divorce — non-resident spouses
  • 7. (1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if

    • (a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

    • (b) neither spouse resides in Canada at the time the application is made; and

    • (c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

  • Marginal note:Application

    (2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse

    • (a) is incapable of making decisions about his or her civil status because of a mental disability;

    • (b) is unreasonably withholding consent; or

    • (c) cannot be found.

  • Marginal note:Exception if spouse is found

    (3) Despite paragraph (2)(c), the other spouse’s consent is required if that spouse is found in connection with the service of the application.

Marginal note:No corollary relief

8. For greater certainty, the Divorce Act does not apply to a divorce granted under this Act.

Marginal note:Effective date generally
  • 9. (1) A divorce takes effect on the day on which the judgment granting the divorce is rendered.

  • Marginal note:Certificate of divorce

    (2) After a divorce takes effect, the court must, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.

  • Marginal note:Conclusive proof

    (3) The certificate, or a certified copy of it, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.

Marginal note:Legal effect throughout Canada

10. On taking effect, a divorce granted under this Act has legal effect throughout Canada.

Marginal note:Marriage dissolved

11. On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.

Definition of “competent authority”

  • 12. (1) In this section, “competent authority”, in respect of a court in a province, means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

  • Marginal note:Rules

    (2) Subject to subsection (3), the competent authority may make rules applicable to any applications made under this Part in a court in a province, including rules

    • (a) regulating the practice and procedure in the court;

    • (b) respecting the conduct and disposition of any applications that are made under this Part without an oral hearing;

    • (c) prescribing and regulating the duties of the officers of the court; and

    • (d) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Part.

  • Marginal note:Exercise of power

    (3) The power of a competent authority to make rules for a court must be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court that are conferred on that authority by the laws of the province.

  • Marginal note:Not statutory instruments

    (4) Rules that are made under this section by a competent authority that is not a judicial or quasi-judicial body are deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

Marginal note:Regulations
  • 13. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations providing for uniformity in the rules made under section 12.

  • Marginal note:Regulations prevail

    (2) Any regulations that are made to provide for uniformity in the rules prevail over those rules.

COMING INTO FORCE

Marginal note:Order in council

 Section 4 comes into force in a province on a day to be fixed by order of the Governor in Council or throughout Canada on a day to be fixed by order of the Governor in Council.

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