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 (S.C. 2019, c. 16)
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Assented to 2019-06-21
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
S.C. 2019, c. 16
Assented to 2019-06-21
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
SUMMARY
This enactment amends the Divorce Act to, among other things,
(a) replace terminology related to custody and access with terminology related to parenting;
(b) establish a non-exhaustive list of criteria with respect to the best interests of the child;
(c) create duties for parties and legal advisers to encourage the use of family dispute resolution processes;
(d) introduce measures to assist the courts in addressing family violence;
(e) establish a framework for the relocation of a child; and
(f) simplify certain processes, including those related to family support obligations.
The enactment also amends the Family Orders and Agreements Enforcement Assistance Act to, among other things,
(a) allow the release of information to help obtain and vary a support provision;
(b) expand the release of information to other provincial family justice government entities;
(c) permit the garnishment of federal moneys to recover certain expenses related to family law; and
(d) extend the binding period of a garnishee summons.
The enactment also amends those two Acts to implement
(a) 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; and
(b) the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007.
The enactment also amends the Garnishment, Attachment and Pension Diversion Act to, among other things,
(a) give priority to family support obligations; and
(b) simplify the processes under the Act.
Finally, this enactment also includes transitional provisions and makes consequential amendments to the Criminal Code.
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
R.S., c. 3 (2nd Supp.)Divorce Act
1 (1) The definitions custody and custody order in subsection 2(1) of the Divorce Act are repealed.
(2) The definition accès in subsection 2(1) of the French version of the Act is repealed.
Marginal note:1997, c. 1, s. 1(3)
(3) The definition provincial child support service in subsection 2(1) of the Act is replaced by the following:
- provincial child support service
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)
Marginal note:1997, c. 1, s. 1(1); 2005, c. 33, s. 8(1)
(4) The definitions corollary relief proceeding, divorce proceeding and spouse in subsection 2(1) of the Act are replaced by the following:
- corollary relief proceeding
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)
- divorce proceeding
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)
- spouse
spouse includes, in subsection 6(1) and sections 15.1 to 16.96, 21.1, 25.01 and 25.1, a former spouse; (époux)
(5) The definition spouse in subsection 2(1) of the Act is replaced by the following:
- spouse
spouse includes, in subsection 6(1) and sections 15.1 to 16.96, 21.1, 25.01, 25.1 and 30.7, a former spouse; (époux)
Marginal note:1997, c. 1, s. 1(3)
(6) Paragraph (a) of the definition applicable guidelines in subsection 2(1) of the Act is replaced by the following:
(a) 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
(7) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:
- competent authority
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
contact order means an order made under subsection 16.5(1); (ordonnance de contact)
- decision-making responsibility
decision-making responsibility means the responsibility for making significant decisions about a child’s well-being, including in respect of
(a) health;
(b) education;
(c) culture, language, religion and spirituality; and
(d) significant extra-curricular activities; (responsabilités décisionnelles)
- family dispute resolution process
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
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
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
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
(a) physical abuse, including forced confinement but excluding the use of reasonable force to protect themselves or another person;
(b) sexual abuse;
(c) threats to kill or cause bodily harm to any person;
(d) harassment, including stalking;
(e) the failure to provide the necessaries of life;
(f) psychological abuse;
(g) financial abuse;
(h) threats to kill or harm an animal or damage property; and
(i) the killing or harming of an animal or the damaging of property; (violence familiale)
- legal adviser
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
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
parenting order means an order made under subsection 16.1(1); (ordonnance parentale)
- parenting time
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)
- relocation
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) a person who has parenting time, decision-making responsibility or an application for a parenting order in respect of that child pending; or
(b) a person who has contact with the child under a contact order; (déménagement important)
Marginal note:2002, c. 8, par. 183(1)(i)
2 Subsections 3(2) and (3) of the Act are replaced by the following:
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:1993, c. 8, s. 1; 2002, c. 8, par. 183(1)(i)
3 Subsections 4(2) and (3) of the Act are replaced by the following:
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:2002, c. 8, par. 183(1)(i)
4 Subsections 5(2) and (3) of the Act are replaced by the following:
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.
5 Subsections 6(1) to (3) of the Act are replaced by the following:
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.
6 The Act is amended by adding the following after section 6:
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.
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