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

Short Title

Marginal note:Short title

1 This Act may be cited as the Divorce Act.

Interpretation

Marginal note:Definitions

• 2 (1) In this Act,

  age of majority

  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

  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

  applicable guidelines means

  • (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

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

  child of the marriage

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

  • (a) is under the age of majority and who has not withdrawn from their charge, or

  • (b) 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

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

  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)

  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)

  court

  court, in respect of a province, means

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

  • (a.1) for the Province of Newfoundland and Labrador, the Trial Division of the Supreme Court of the Province,

  • (b) for the Province of Quebec, the Superior Court,

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

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

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

  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)

  custody

  custody[Repealed, 2019, c. 16, s. 1]

  custody order

  custody order[Repealed, 2019, c. 16, s. 1]

  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)

  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)

  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)

  Federal Child Support Guidelines

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

  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)

  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)

  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)

  spousal support order

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

  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)

  support order

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

  variation order

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

  variation proceeding

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

• Marginal note:Child of the marriage

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

  • (a) any child for whom they both stand in the place of parents; and

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

• Marginal note:Term not restrictive

  (3) 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.

• Marginal note:Idem

  (4) 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.

• Marginal note:Provincial child support guidelines

  (5) 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.

• Marginal note:Amendments included

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

Jurisdiction

Marginal note:Jurisdiction in divorce proceedings

• 3 (1) 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.

• 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.