The Divorce Act Changes Explained

Provincial child support service

Calculation of child support
(Section 25.01(1), Divorce Act)

New section

The Act is amended by adding the following after section 25:

Provincial child support service — calculation of child support

25.01 (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to calculate the amount of child support in accordance with the applicable guidelines and set it out in a decision.
Old section

None.

What is the change

The Minister of Justice may enter into an agreement with a province to allow for the administrative calculation of initial child support amounts under the Act.

Reason for the change

To increase efficiency, a designated provincial child support service could calculate an initial child support amount when the spouses initiate a divorce proceeding under the Act.

When

July 1, 2020.

Application of law of province
(Section 25.01(2), Divorce Act)

New section

Application of law of province

(2) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.
Old section

None.

What is the change

Provincial law applies to the operational functions of provincial child support services to the extent they are not inconsistent with the Divorce Act. Provincial law includes, for example, timelines for spouses to send in various documents, including their income information.

Reason for the change

The amendment improves efficiency and helps ensure consistency between the procedures that apply to Divorce Act cases and non-Divorce Act cases. The provinces and territories can develop operational frameworks to guide the functions of their child support services, as long as they are consistent with the Act and related regulations.

When

July 1, 2020.

Effect of calculation by provincial child support service
(Section 25.01(3), Divorce Act)

New section

Effect of calculation by provincial child support service

(3) The amount of child support calculated under this section is the amount payable by the spouse who is subject to a provincial child support service decision.
Old section

None.

What is the change

The amendment clarifies that the amount calculated by a provincial child support service is the amount to be paid by the spouse.

Reason for the change

This amendment clarifies procedure. The child support service is an administrative entity and as a result makes a child support “decision” rather than an order. A child support decision has the same legal effect as a child support order.

When

July 1, 2020.

Liability
(Section 25.01(4), Divorce Act)

New section

Liability

(4) A spouse who is subject to a provincial child support service decision becomes liable to pay the amount of child support calculated under this section on the day, or on the expiry of a period, specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.
Old section

None.

What is the change

The amendment specifies when a spouse becomes liable to pay support decided by a provincial child support service.

Reason for the change

The amendment clarifies procedure. The provinces and territories can make rules regarding when a spouse becomes liable to pay child support under a child support decision. In the absence of legislative guidance under provincial law, the amendment sets out that a spouse becomes liable to pay support on the expiry of the period prescribed by regulations under the Act.

When

July 1, 2020.

Disagreement with respect to amount
(Section 25.01(5), Divorce Act)

New section

Disagreement with respect to amount

(5) Either or both spouses who do not agree with the amount of the child support calculated under this section may apply to a court of competent jurisdiction for an order under section 15.1 before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations.
Old section

None.

What is the change

In the event of a disagreement with the amount of child support calculated by the provincial child support service, the amendment identifies the period of time within which a spouse may make an application to seek a child support order under s 15.1 of the Act.

Reason for the change

The amendment reflects principles of fairness and the constitutional jurisdiction of superior courts. Provincial law sets out the period within which a spouse may make an application for a child support order under s 15.1 of the Act, if they do not agree with the decision of a provincial child support service. In the absence of legislative guidance under provincial law, the period prescribed by the regulations under the Act applies.

When

July 1, 2020.

Effect of application
(Section 25.01(6), Divorce Act)

New section

Effect of application

(6) The liability to pay the amount of child support under subsection (4) continues while the determination of the application under subsection (5) is pending.
Old section

None.

What is the change

A child support decision remains in force while a judicial determination under s 15.1 of the Act is pending.

Reason for the change

The amendment helps to ensure that children continue to benefit from child support while a court considers an application for a child support order. It can take a significant amount of time for a court to hear such an application.

When

July 1, 2020.

Recalculation of amount or application for order
(Section 25.01(7), Divorce Act)

New section

Recalculation of amount or application for order

(7) After a spouse subject to a provincial child support service decision becomes liable to pay an amount of child support under subsection (4), either or both spouses may have the amount of child support recalculated under section 25.1 or apply to a court of competent jurisdiction for an order under section 15.1.
Old section

None.

What is the change

An amount in a child support decision can be recalculated by a provincial child support service or calculated by a court under s 15.1 of the Act.

Reason for the change

Under Canada’s family law system, child support is the right of the child, and child support should be updated to reflect changes, such as changes to income.

The amendment ensures that a new amount could be determined either through a recalculation by a provincial child support service, or by a court making a child support order under s 15.1 of the Act.

When

July 1, 2020.

Provincial child support service – recalculation of child support
(Section 25.1(1), Divorce Act)

New section

Subsection 25.1(1) of the Act is replaced by the following:

Provincial child support service — recalculation of child support

25.1 (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to recalculate, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information.
Old section

Agreements with provinces

25.1 (1) With the approval of the Governor in Council, the Minister of Justice may, on behalf of the Government of Canada, enter into an agreement with a province authorizing a provincial child support service designated in the agreement to

(a) assist courts in the province in the determination
of the amount of child support; and

(b) recalculate, at regular intervals, in accordance with the applicable guidelines, the amount of child support orders on the basis of updated income information.

What is the change

The amendment repeals paragraph (a) and removes the words “at regular intervals” from paragraph (b). In the French version, “l’accord” replaces “celui-ci.”

Reason for the change

Repealing paragraph (a) removes the concept of “to assist the court,” which better reflects that recalculation services are services that recalculate child support amounts in accordance with the applicable guidelines and on the basis of updated income information without the involvement of the court.

The amendment allows recalculation to be performed at regular intervals, or at the request of one or both former spouses. This provides greater flexibility to the provinces and territories in how their services are offered.

When

July 1, 2020.

Application of law of province
(section 25.1(1.1), Divorce Act)

New section

Application of law of province

(1.1) To the extent that it is not inconsistent with this section, the law of the province applies to a provincial child support service in the performance of its functions under this section.
Old section

None.

What is the change

Provincial laws apply to recalculation, as long as they are not inconsistent with s 25.1.

Reason for the change

The amendment allows provinces and territories to make rules applicable to their provincial child support services, as long as they are not inconsistent with s 25.1. Provincial law addresses many operational issues, such as deadlines for former spouses to send in various documents.

When

July 1, 2020.

Deeming of income
(Section 25.1(1.2), Divorce Act)

New section

(1.2) For the purposes of subsection (1), if a spouse does not provide the income information, a provincial child support service may deem the income of that spouse to be the amount determined in accordance with the method of calculation set out in the law of the province or, if no such method is specified, in accordance with the method prescribed by the regulations.

Old section

None.

What is the change

This amendment allows a provincial child support service to deem the income of a spouse if they do not disclose appropriate income information. The deeming of income must be done in accordance with a method of calculation set out in provincial law. If provincial law provides no such method of calculation, Divorce Act regulations will apply.

Reason for the change

Previously, in cases where there was a Divorce Act order, provincial child support services were not allowed to deem the income of a spouse who did not provide income information. This created serious problems for child support services; some spouses deliberately withheld their income information preventing recalculation and sometimes denying children adequate support. The new approach ensures that the recalculation officer follows a specific method to deem income and that no discretion is used in the deeming process. Most provinces and territories calculate deemed income using a method set out under their laws. If provinces and territories do not have a method set out in their laws, regulations under the Divorce Act would apply.

When

July 1, 2020.

Effect of deeming of income
(Section 25.1(2.1), Divorce Act)

New section

Subsections 25.1(3) and (4) of the Act are replaced by the following:

Effect of deeming of income

(2.1) Subject to subsection (5), the income determined under subsection (1.2) shall be deemed to be the spouse’s income for the purposes of the child support order.
Old section

None.

What is the change

A spouse’s income deemed under s 25.1(1.2) is deemed to be the income for the purposes of the child support order.

Reason for the change

This amendment clarifies procedures. The deemed income is used to determine the amount of child support payable under the child support order for future recalculation.

When

July 1, 2020.

Liability
(Section 25.1(3), Divorce Act)

New section

Liability

(3) The spouse against whom a child support order was made becomes liable to pay the recalculated amount on the day, or on the expiry of the period specified by the law of the province or, if no day or period is specified, on the expiry of the period prescribed by the regulations.
Old section

Liability

(3) The former spouse against whom a child support order was made becomes liable to pay the amount as recalculated pursuant to this section thirty-one days after both former spouses to whom the order relates are notified of the recalculation in the manner provided for in the agreement authorizing the recalculation.

What is the change

The amendment specifies when a spouse subject to a child support order becomes liable to pay the recalculated amount.

Reason for the change

If no provincial law is in place, this amendment provides that the spouse becomes liable to pay the recalculated amount upon the expiry of the period set out in regulations under the Act.

When

July 1, 2020.

Disagreement with recalculation
(Section 25.1(4), Divorce Act)

New section

Disagreement with recalculation

(4) If either or both spouses do not agree with the recalculated amount of the child support order, either or both of them may, before the day or within the period specified by the law of the province or, if no day or period is specified, within the period prescribed by the regulations, apply to a court of competent jurisdiction

(a) in the case of an interim order made under subsection 15.1(2), for an order under section 15.1;

(b) in the case of a provincial child support service decision made under section 25.01, for an order under section 15.1; or

(c) in any other case, if they are former spouses, for an order under paragraph 17(1)(a).
Old section

Right to vary

(4) Where either or both former spouses to whom a child support order relates do not agree with the amount of the order as recalculated pursuant to this section, either former spouse may, within thirty days after both former spouses are notified of the recalculation in the manner provided for in the agreement authorizing the recalculation, apply to a court of competent jurisdiction for an order under subsection 17(1).

What is the change

In case of disagreement with the recalculated amount, the amendment provides a deadline for either or both spouses to apply to court if they disagree with the recalculated amount. The amendment also provides guidance about which section of the Act applies.

Reason for the change

The amendment establishes a process in cases of disagreement with the recalculated amount. Provincial law provides a timeframe to file an application; in the absence of rules in provincial law, the timeframe would be provided in regulations under the Act.

The provision also clarifies the relevant section of the Act to apply when there is a disagreement about the recalculated amount. For example, a spouse who has an interim order and disagrees with the recalculated amount must apply for a child support order under s 15.1.

When

July 1, 2020.

Withdrawal of application
(Section 25.1(6), Divorce Act)

New section

Subsection 25.1(6) of the Act is replaced by the following:

Withdrawal of application

(6) If an application made under subsection (4) is withdrawn before it is determined, the spouse against whom the child support order was made becomes liable to pay the recalculated amount on the day on which the spouse would have become liable had the application not been made.
Old section

Withdrawal of application

(6) Where an application made under subsection (4) is withdrawn before the determination of the application, the former spouse against whom the order was made becomes liable to pay the amount as recalculated pursuant to this section on the day on which the former spouse would have become liable had the application not been made.

What is the change

The words “child support” and “spouse” have been added for clarity.

Reason for the change

This is a technical amendment that modernizes the language. The term “child support” is defined in s 25.1(7). There is no substantive change to the provision.

When

July 1, 2020.

Definition of child support order
(Section 25.1(7), Divorce Act)

New section

Definition of child support order

(7) In this section, child support order has the same meaning as in subsection 2(1) and also means an interim order made under subsection 15.1(2), a provincial child support service decision made under section 25.01 and a variation order made under paragraph 17(1)(a).
Old section

None.

What is the change

This amendment defines a child support order for the purpose of s 25.1.

Reason for the change

Many people rely on interim orders for long periods; some never obtain a final child support order. This amendment allows a provincial recalculation service to recalculate interim orders, along with final child support orders and variation orders. The amendment also allows for the recalculation of decisions made by a provincial child support service under s 25.01.

When

July 1, 2020.

 

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