The Divorce Act Changes Explained: Part II
Appendix D
Divorce Act Changes Part II: Provisions Relating to the 1996 Convention and the 2007 Convention Explained
Background
This document explains some of the specific changes made to the Divorce Act through former Bill C-78, 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. As noted above, the former bill received Royal Assent on June 21, 2019. The changes explained in this document relate to the Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for the Protection of Children (1996 Convention) and the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance (2007 Convention). For information on other changes to the Divorce Act, see Divorce Act Changes Explained.
Some of the changes to the Divorce Act came into force upon Royal Assent of former Bill C-78. However, most changes came into force on March 1, 2021.
The provisions relating to the 1996 and 2007 Conventions are not in force but will come into force on a day to be fixed by order of the Governor in Council that will coincide with the entering into force of each Convention for Canada internationally. Canada signed the two Conventions on May 23, 2017, but has not ratified either Convention at this time. Canada is therefore not yet a party to these Conventions.
What the document includes:
- A general explanation of specific changes to the Divorce Act (What are the changes)
- An overview of the reasons why the changes were made (Reason for the changes)
- A summary of the coming into force of the changes (When the changes will come into force)
What the document does not include:
- Legal advice. This document only provides general legal information about the changes to the Divorce Act. People may want to seek legal advice from a professional working in family law for additional information about the law and its application.
Please note that the official version of changes to the Divorce Act can be found in Bill C-78 on the Parliament of Canada website. The official version of the current Divorce Act can be found on the Justice Canada laws.
Convention on the International Recovery of Child Support and Other Forms of Family Maintenance
International Conventions (Definition)
(s 28, Divorce Act)
New section
International Conventions
Convention of 23 November 2007 on the International Recovery of Child Support and Other Forms of Family Maintenance
Definitions
28 The following definitions apply in this section and in sections 28.1 to 29.5.
2007 Convention means the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, concluded at The Hague on November 23, 2007, set out in the schedule (Convention de 2007).
What is the change
The amendment adds relevant headings to the Act. The amendment also defines the term “2007 Convention” for the purposes of sections 28 to 29.5.
Reason for the change
The addition of headings and subheadings make it easier to use and understand the Divorce Act. The defined term is necessary to avoid using the full title of the Convention in several sections of the Act.
When
On a day to be fixed by order of the Governor in Council.
Central Authority (Definition)
(s 28, Divorce Act)
New section
Central Authority means any person or entity designated under Article 4 of the 2007 Convention that is responsible for carrying out the duties that are imposed on it by the 2007 Convention. (autorité centrale)
What is the change
The amendment defines “Central Authority” as a Canadian person or entity that is responsible for facilitating international administrative cooperation for the recovery of support among States Parties to the 2007 Convention.
Reason for the change
A definition of Central Authority is required for this part of the Divorce Act. Note that the 2007 Convention touches on an area of shared jurisdiction, Canada must designate federal, provincial and territorial Central Authorities to carry out Convention obligations.
When
On a day to be fixed by order of the Governor in Council.
Competent Authority (Definition)
(s 28, Divorce Act)
New section
competent authority means a court that has the authority to make an order, or another entity that has the authority to make a decision, with respect to support under this Act. (autorité compétente)
What is the change
The amendment defines competent authority as either a court that can make a support order under the Divorce Act or another entity such as a provincial child support service that can make a decision with respect to support under the Act.
Reason for the change
The definition of competent authority here applies specifically to s 28.4 to 29.5. The definition is related to the 2007 Convention and differs from the definition of competent authority in s 2.
When
On a day to be fixed by order of the Governor in Council.
Creditor (Definition)
(s 28, Divorce Act)
New section
creditor means a former spouse to whom support is owed or who seeks to obtain support. (créancier)
What is the change
The provision defines the term “creditor” for the purposes of the Act.
Reason for the change
The term is not defined elsewhere in the Divorce Act but is used in the context of the 2007 Convention.
When
On a day to be fixed by order of the Governor in Council.
Debtor (Definition)
(s 28, Divorce Act)
New section
debtor means a former spouse who owes support or from whom support is sought. (débiteur)
What is the change
The provision defines the term “debtor” in the Act.
Reason for the change
The term is not defined elsewhere in the Divorce Act but is used in the context of the 2007 Convention.
When
On a day to be fixed by order of the Governor in Council.
State Party (Definition)
(s 28, Divorce Act)
New section
State Party means a State other than Canada in which the 2007 Convention applies. (État partie)
What is the change
The provision defines the term “State Party” as a State in which the 2007 Convention applies other than Canada.
Reason for the change
The term is not defined elsewhere in the Divorce Act but is used in the context of the 2007 Convention.
When
On a day to be fixed by order of the Governor in Council.
Implementation, Interpretation and Application of the 2007 Convention
Force of law
(Heading and subsection 28.1 (1), Divorce Act)
New section
Force of law
28.1 (1) The provisions of the 2007 Convention have the force of law in Canada in so far as they relate to subjects that fall within the legislative competence of Parliament.
What is the change
The amendment gives legal effect to aspects of the 2007 Convention that fall within federal jurisdiction in Canada.
Reason for the change
To ensure consistency between federal legislation (Divorce Act) and Convention obligations.
When a day to be fixed by order of the Governor in Council.
Inconsistency
(s 28.1 (2), Divorce Act)
New section
Inconsistency
(2) The 2007 Convention prevails over this Act and any other federal law to the extent of any inconsistency between them.
What is the change
The amendment clarifies that the 2007 Convention takes precedence if conflict arises between it and any federal law, including the Divorce Act.
Reason for the change
As a party to an international Convention, Canada agrees to follow the rules of the Convention. This provision ensures that if there is an inconsistency between the 2007 Convention and a federal law, the Convention takes precedence.
When
On a day to be fixed by order of the Governor in Council.
Explanatory Report
(s 28.2, Divorce Act)
New section
Explanatory Report
28.2 In interpreting the 2007 Convention, recourse may be had to the Explanatory Report on the Convention on the International Recovery of Child Support and Other Forms of Family Maintenance, adopted by the Twenty-First Session of the Hague Conference on Private International Law held from November 5 to 23, 2007.
What is the change
The amendment specifies that the court may consult the Explanatory Report on the Convention to interpret the 2007 Convention.
Reason for the change
Explanatory reports on the various Hague Conventions provide important information about rationale, interpretation and application of these Conventions. The reports promote an internationally consistent interpretation of the Conventions. Including a reference to the Explanatory Report in the Divorce Act aligns with principles in the Vienna Convention on the Law of Treaties, to which Canada is a party, and with Canadian case law.
When
On a day to be fixed by order of the Governor in Council.
Application
(s 28.3, Divorce Act)
New section
Application
28.3 Sections 28.4 to 29.5 apply if either the creditor or the debtor, as the case may be, resides in a State Party and the other resides in a province in respect of which Canada has made a declaration extending the application of the 2007 Convention to that province. However, the application of those provisions does not exclude the application of the other provisions of this Act unless there is an indication to the contrary.
What is the change
The amendment sets out when the provisions of the Divorce Act related to the Convention will apply.
Reason for the change
Article 61 of the 2007 Convention, allows Canada to declare, at the time of ratification, that the 2007 Convention will apply to one or more of the provinces and territories that have implemented it and that have indicated their wish to be bound by the Convention. Additional declarations will be made once new jurisdictions have met these conditions. The amendment states that the Divorce Act provisions will apply only in the provinces and territories that implement the Convention.
For the 2007 provisions to apply, the creditor or the debtor has to reside in a province or territory that has implemented the 2007 Convention and the other party has to reside in a State Party to the Convention.
This provision also defines the scope of application of s 28.4 to 29.5 and clarifies that the other provisions of the Divorce Act generally apply, unless the Act specifically indicates otherwise. For example, this provision would help in a situation where a spouse, residing in a country that has a reciprocal arrangement with the province or territory where the other spouse resides (i.e. an arrangement to provide each other with services in relation to support), would like to submit an application for spousal support only (meaning an application that does not include a request for child support). A spousal support only application is not included in the core scope of the 2007 Convention and therefore would not benefit from Central Authority services. However, an application for spousal support only could be made under s 19 of the Act and spouses would benefit from the process set out under that provision, which includes the services of a designated authority under a reciprocal arrangement.
When
On a day to be fixed by order of the Governor in Council
.Application of Creditor to Central Authority
Recognition of State Party decision varying child support order
(s 28.4 (1), Divorce Act)
New section
Recognition of State Party decision varying child support order
28.4 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.
What is the change
The amendment provides that a creditor may submit an application through the Central Authority where they reside to the provincial/territorial Central Authority where the debtor habitually resides for the recognition, or the recognition and enforcement of, a foreign decision that has the effect of varying a child support order originally made under the Divorce Act.
Reason for the change
Provincial and territorial laws generally address the registration and recognition of foreign orders. When, however, a support order made under the Divorce Act is later modified by a State Party under foreign laws, the foreign modifying decision must be recognized under the Act for it to override the original order. This would happen in very specific circumstances: a support order is granted in Canada under the Act; one of the former spouses moves to a State Party, where the support order is subsequently varied; one of the parties seeks to enforce, in Canada, the order made in the State Party.
In this circumstance, under the 2007 Convention, a Canadian provincial or territorial Central Authority would be required to provide assistance to foreign creditors who seek to have their child support orders recognized, or recognized and enforced in a province or territory to which the Convention has been extended.
When a day to be fixed by order of the Governor in Council.
Spousal support order
(s 28.4 (2), Divorce Act)
New section
Spousal support order
(2) A creditor may also in the same manner submit an application for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a spousal support order if the application is also for recognition and, if applicable, for enforcement of a decision of the State Party that has the effect of varying a child support order.
What is the change
Under this amendment, a creditor may, through the Central Authority where they reside, submit an application to a provincial or territorial Central Authority for the recognition, or the recognition and enforcement of, a foreign decision made in a State Party to the 2007 Convention that has the effect of varying a spousal support order originally made under the Divorce Act if the application is combined with an order for child support.
Reason for the change
Provincial and territorial laws generally address the registration and recognition of foreign orders. When a support order made under the Divorce Act is later modified by a State Party under foreign laws, the foreign modifying decision must be recognized under the Divorce Act for it to override the original order. For example, a support order is granted in Canada under the Act; one of the former spouses moves to a State Party, where the support order is subsequently varied; one of the parties seeks to enforce, in Canada, the order made in the State Party.
Under the 2007 Convention, a Canadian provincial or territorial Central Authority must provide assistance to foreign creditors who seek to have their spousal support orders recognized, or recognized and enforced, in a province or territory to which the Convention has been extended. However, this obligation exists only when applications are combined with child support orders.
When a day to be fixed by order of the Governor in Council.
Registration and recognition
(s 28.4 (3), Divorce Act)
New section
Registration and recognition
(3) The decision of the State Party is registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.
What is the change
The amendment provides that the foreign decision shall be registered according to the law of the province/territory, and that provincial/territorial law applies in respect of recognition of the decision.
Reason for the change
Previously, no process existed under federal legislation to register and recognize foreign orders that have the effect of varying a Divorce Act order. Under the subsection, applications for recognition under the 2007 Convention in relation to foreign orders modifying a Divorce Act order would take place according to the rules set out under the law of the province or territory, including the grounds for objecting to registration of the order.
When
On a day to be fixed by order of the Governor in Council.
Enforcement
(s 28.4 (4), Divorce Act)
New section
Enforcement
(4) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.
What is the change
The amendment provides that the recognition of a foreign order in a province or territory is deemed to have the same effect as a variation order made under the Divorce Act. The order has legal effect throughout Canada and is enforceable under provincial/territorial law.
Reason for the change
Once the recognition process is completed, the order has legal effect throughout Canada. It will make it easier to keep enforcing support obligations when a debtor moves from one province or territory to another within Canada. This would apply even if the province or territory where the debtor moves has not implemented the Convention as the order would be a Divorce Act order and therefore enforceable across all provinces and territories.
When
On a day to be fixed by order of the Governor in Council.
Establishment or variation of child support order or calculation or recalculation of amount
(s 28.5 (1), Divorce Act)
New section
Establishment or variation of child support order or calculation or recalculation of amount
28.5 (1) A creditor may, through the Central Authority designated by the State Party in which the creditor resides, submit to the Central Authority in the province in which the debtor is habitually resident an application to be sent to the competent authority in the province.
What is the change
The amendment provides for cases where the creditor resides in a State Party and the debtor habitually resides in a province or territory that has implemented the 2007 Convention. A creditor residing in a State Party can send an application to their Central Authority, who will forward the application to the Central Authority located in the province or territory of the debtor’s habitual residence. The provincial or territorial Central Authority would then send the creditor’s application to the appropriate competent authority.
Reason for the change
The amendment clarifies the application process. A provincial or territorial Central Authority receiving an application from a Central Authority located in a State Party is required to provide assistance to a foreign creditor residing in a State Party. The provincial or territorial Central Authority sends the application to the appropriate competent authority.
When a day to be fixed by order of the Governor in Council.
Types of Applications
(s 28.5 (2), Divorce Act)
New section
Types of applications
(2) An application may seek
- to obtain or to vary a child support order; or
- to have the amount of child support calculated or recalculated, if the provincial child support service in the province in which the debtor habitually resides provides such a service.
What is the change
The amendment provides for the situation where the creditor resides in a State Party and the debtor habitually resides in a province or territory that has implemented the 2007 Convention. It enables the creditor to obtain or vary a child support order, or to have the amount of child support calculated or recalculated by a provincial/territorial child support service.
Reason for the change
The amendment clarifies the application process. Before the implementation of the 2007 Convention, a creditor living outside Canada could not vary an order made under the Divorce Act unless they made an application to vary that order directly to a Canadian court in the jurisdiction where the respondent ordinarily resided. With the amendment, a creditor living outside of Canada in a State Party can use the new application procedure to obtain or vary an order under the Act, if the 2007 Convention has been implemented in the province or territory where the debtor habitually resides.
A creditor can also send a request through the Central Authority in their province or territory to have an amount of child support calculated or recalculated by a provincial child support service (if this service exists in the respondent’s province/territory). The provincial child support service would determine eligibility.
When a day to be fixed by order of the Governor in Council.
Sending of Application
(s 28.5 (3), Divorce Act)
New section
Sending of application
(3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.
What is the change
The Central Authority of the province or territory must send the application to the competent authority in accordance with the law of the province or territory.
Reason for the change
The provision creates administrative efficiencies; the provincial or territorial Central Authority reviews applications and sends them to the appropriate competent authority.
When
On a day to be fixed by order of the Governor in Council.
Application of section 19
(s 28.5 (4), Divorce Act)
New section
Application of section 19
(4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “debtor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the debtor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the creditor resides” and “applicant” shall be read as “creditor”.
What is the change
The amendment provides that some subsections of s 19 of the Divorce Act related to inter-jurisdictional support applications apply to s 28.5.
Reason for the change
The change clarifies the process and aligns the rules for all inter-jurisdictional applications. For example, the steps that a court must follow under s 19, such as service of an application on the respondent, also apply to applications made under section s 28.5.
When
On a day to be fixed by order of the Governor in Council.
Order
(s 28.5 (5), Divorce Act)
New section
Order
(5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, whether presented orally before the court or by affidavit or any means of telecommunication permitted by the rules regulating the practice and procedure in that court, make a child support order or an order varying a child support order, retroactively or prospectively.
What is the change
The amendment permits the court to make an order based on evidence submitted by the creditor and debtor, in whatever manner is permitted by the rules of court in the receiving jurisdiction. Provincial/territorial law governs the submission of evidence by affidavit.
Reason for the change
The amendment gives the court flexibility as to how evidence may be submitted, minimizing the disadvantage to the applicant of residing in a different jurisdiction than the court seized with the application. This facilitates the applicant’s participation in hearings. The provision also supports administrative efficiencies by allowing the court to use any means of telecommunication permitted by court rules.
When
On a day to be fixed by order of the Governor in Council.
Application of certain provisions
(s 28.5 (6), Divorce Act)
New section
Application of certain provisions
(6) Subsections 15.1(3) to (8), section 15.3 and subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).
What is the change
The amendment provides that all of the factors and objectives that apply to the making of a support order or variation of a support order under the Act also apply to an international application under the 2007 Convention, subject to any necessary adjustments.
Reason for the change
This provision clarifies that the substantive requirements for obtaining or varying a support order are the same for an application within Canada, and when the parties reside in different countries.
When
On a day to be fixed by order of the Governor in Council.
Exception
(s 28.5 (7), Divorce Act)
New section
Exception
(7) Subsections (1) to (6) apply despite sections 4 and 5.
What is the change
The amendment sets out subsections (1) through (6) as exceptions to the general jurisdictional rules provided in s 4 and 5 of the Act.
Reason for the change
The amendment creates an exception to the jurisdictional rules set out in section 4 and 5 of the Divorce Act, which generally require that an application be made in the habitual residence of one of the spouses/former spouses.
When
On a day to be fixed by order of the Governor in Council.
Application of Debtor to Central Authority
Recognition of State Party decision suspending or limiting enforcement of child support order
(s 29 (1), Divorce Act)
New section
Recognition of State Party decision suspending or limiting enforcement of child support order
29 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a child support order.
What is the change
The amendment provides that a debtor may, through the Central Authority where they reside, submit an application to a provincial or territorial Central Authority for recognition in that province or territory of a decision. This would be recognition of a decision in a State Party that has the effect of suspending or limiting the enforcement of a child support order originally made under the Act.
Reason for the change
Provincial and territorial laws generally address the registration and recognition of foreign orders. When a support order made under the Act, however, is later modified by a State Party under foreign laws, the foreign modifying decision must be recognized under the Act for it to override the original order.
Under the 2007 Convention, a provincial or territorial Central Authority must provide assistance to a foreign debtor who seeks to have a foreign decision, which has the effect of suspending or limiting their child support order, recognized, or recognized and enforced in Canada. These foreign decisions must come from a State Party and can only be recognized, or recognized and enforced in a province or territory to which the Convention has been extended.
When a day to be fixed by order of the Governor in Council.
Spousal support order
(s 29 (2), Divorce Act)
New section
Spousal support order
(2) A debtor may also in the same manner submit an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a spousal support order, if the application is also for recognition of a decision of the State Party that has the effect of suspending or limiting the enforcement of a child support order.
What is the change
The amendment provides that a debtor may, through the Central Authority where they reside, submit an application to a provincial or territorial Central Authority for the recognition in that province or territory of a decision of a State Party that has the effect of suspending or limiting the enforcement of a spousal support order that was originally made under the Act. This application can only be made if it also includes the recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a child support order.
Reason for the change
Provincial and territorial laws generally address the registration and recognition of foreign orders. When a support order made under the Act is later modified by a State Party under foreign laws, the foreign modifying decision must be recognized under the Act for it to override the original order.
Under the 2007 Convention, a provincial or territorial Central Authority must provide assistance to a foreign debtor who seeks to have a decision of a State Party that has the effect of suspending or of limiting the enforcement of a spousal support order recognized, or recognized and enforced, in a province or territory to which the Convention has been extended. This is only, however, if the application is also for recognition of a decision of a State Party that has the effect of suspending or of limiting the enforcement of a child support order.
When
On a day to be fixed by order of the Governor in Council.
Registration and recognition
(s 29 (3), Divorce Act)
New section
Registration and recognition
(3) The decision of the State Party shall be registered in accordance with the law of the province and that law, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, apply in respect of the recognition of the decision.
What is the change
The amendment provides that the foreign decision shall be registered in accordance with the law of the province or territory and that provincial/territorial law applies to recognition of the decision.
Reason for the change
Previously, no process existed under federal legislation to recognize foreign orders that have the effect of varying an order under the Act. Under the new section, applications for recognition under the 2007 Convention in relation to foreign orders modifying a Divorce Act order would take place according to the rules set out under the law of the province, including the grounds for objecting to registration of the order.
When
On a day to be fixed by order of the Governor in Council.
Enforcement
(s 29 (4), Divorce Act)
New section
Enforcement
(4) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.
What is the change
The amendment provides that the recognition of a foreign order in a province or territory is deemed to have the same effect as a variation order made under the Act. The order has legal effect throughout Canada and is enforceable under provincial/territorial law.
Reason for the change
Once the recognition process is completed, the order has legal effect throughout Canada. It will make it easier to keep enforcing support obligations when a creditor moves from one province or territory to another within Canada. This would apply even if the province or territory where the creditor moves has not implemented the Convention as the order would be a Divorce Act order and therefore enforceable across all provinces and territories.
When a day to be fixed by order of the Governor in Council.
Variation of child support order or recalculation of amount
(s 29.1 (1), Divorce Act)
New section
Variation of child support order or recalculation of amount
29.1 (1) A debtor may, through the Central Authority designated by the State Party in which the debtor resides, submit to the Central Authority in the province in which the creditor is habitually resident an application to be sent to the competent authority in the province.
What is the change
The amendment allows a debtor residing in a State Party to send an application to its Central Authority, who then forwards it to the Central Authority of the province or territory where the creditor habitually resides. That Central Authority will send it to the appropriate competent authority.
Reason for the change
The change clarifies the process. A provincial or territorial Central Authority who receives a variation/recalculation application from a Central Authority located in a State Party must provide assistance to a foreign debtor residing in a State Party. To comply with 2007 Convention obligations, this type of application must be available to a debtor through the Central Authority.
When a day to be fixed by order of the Governor in Council.
Types of applications
(s 29.1 (2), Divorce Act)
New section
Types of applications
(2) An application may seek
- to vary a child support order; or
- to have the amount of child support recalculated, if the provincial child support service in the province in which the creditor habitually resides provides such a service.
What is the change
The provision provides for the situation where the debtor resides in a State Party and the creditor habitually resides in a province or territory that has implemented the 2007 Convention. It enables a debtor to vary a child support order or to have the amount of child support recalculated by a provincial child support service.
Reason for the change
Before implementation of the 2007 Convention, a former spouse living outside Canada could not vary an order made under the Divorce Act unless they made an application to vary their previous order directly to a Canadian court in the jurisdiction where the respondent ordinarily resided. With the new section, a debtor living outside of Canada in a State Party can use the new application procedure to vary an order under the Divorce Act, if the 2007 Convention has been implemented in the province or territory where the creditor habitually resides.
The debtor can also send a request through the Central Authority in their province or territory to have an amount of child support recalculated by a provincial child support service (if this service exists in the respondent’s province or territory). The provincial child support service determines eligibility.
When
On a day to be fixed by order of the Governor in Council.
Sending of application
(s 29.1 (3), Divorce Act)
New section
Sending of application
(3) The Central Authority shall, in accordance with the law of the province, send the application to the competent authority of that province.
What is the change
The amendment requires that the Central Authority of the province or territory send the variation/recalculation application to the competent authority in accordance with the law of the province.
Reason for the change
The provision creates administrative efficiencies by requiring that the Central Authority review applications and send them to the appropriate competent authority.
When
On a day to be fixed by order of the Governor in Council.
Application of section 19
(s 29.1 (4), Divorce Act)
New section
Application of section 19
(4) Subsections 19(5) to (12) and (16) apply with necessary modifications to the application except that a reference to a “respondent” shall be read as “creditor”, a reference to “designated authority” shall be read as “Central Authority in the province in which the creditor is habitually resident”, a reference to “responsible authority in the designated jurisdiction” shall be read as “Central Authority designated by the State Party in which the debtor resides” and “applicant” shall be read as “debtor”.
What is the change
The amendment provides that some subsections of s 19 apply to s 29.1.
Reason for the change
The new provision aligns the rules for all inter-jurisdictional applications. For example, the steps that a court must follow under s 19, such as service of an application on the creditor, apply to applications made under s 29.1.
When
On a day to be fixed by order of the Governor in Council.
Order
(s 29.1 (5), Divorce Act)
New section
Order
(5) The court referred to in subsection 19(6) may, on the basis of the evidence and the submissions of the creditor and of the debtor, whether presented orally before the court or by affidavit or any means of telecommunication permitted by the rules regulating the practice and procedure in that court, make an order varying a child support order, retroactively or prospectively.
What is the change
The court can now make an order based on evidence submitted by the creditor and debtor, in whatever manner is permitted by the rules of court in the receiving jurisdiction.
Reason for the change
The provision provides the court with flexibility as to how evidence may be submitted, minimizing the disadvantage to the applicant residing in a different jurisdiction than the court seized with the application. This will facilitate the applicant’s participation in hearings. The amendment also supports administrative efficiencies by allowing the court to use any means of telecommunication permitted by court rules.
When
On a day to be fixed by order of the Governor in Council.
Application of certain provisions
(s 29.1 (6), Divorce Act)
New section
Application of certain provisions
(6) Subsections 17(3), (4), (6) to (6.5) and (11) apply, with any necessary modifications, in respect of an order referred to in subsection (5).
What is the change
The amendment provides that all of the factors and objectives that apply to the making of a variation order under the Divorce Act also apply to an international application made under the 2007 Convention for variation, subject to modifications.
Reason for the change
This provision clarifies that the substantive requirements for varying a support order under the Act are the same when the parties reside in different countries.
When
On a day to be fixed by order of the Governor in Council.
Exception
(s 29.1 (7), Divorce Act)
New section
Exception
(7) Subsections (1) to (6) apply despite section 5.
What is the change
The amendment creates exceptions to the general jurisdictional rules provided in s 5 of the Divorce Act.
Reason for the change
The amendment clarifies that subsections (1) through (6) are exceptions to the jurisdictional rules in s 5 of the Divorce Act.
When
On a day to be fixed by order of the Governor in Council.
Spousal Support Orders
Declaration in respect of a province
(s 29.2, Divorce Act)
New section
Declaration in respect of a province
29.2 If Canada declares under Article 2 of the 2007 Convention that the application of Chapters II and III of that Convention is to extend, in respect of a province, to spousal support orders, the applications described in sections 28.4 to 29.1 of this Act may also be made in respect of those orders and in that case those sections apply with any necessary modifications.
What is the change
If Canada makes a declaration under the 2007 Convention in respect of province or territory, then a provincial or territorial Central Authority would be authorized under the Divorce Act to assist with spousal support only applications under the Convention.
Reason for the change
The provision extends the scope of Convention to applications for spousal support only so that such applications are then eligible for provincial or territorial Central Authority assistance under the Divorce Act.
Under the 2007 Convention, Canada could, after receiving a request from a province or territory to do so, declare on behalf of that province or territory that the applications referred in s 28.4 to 29.1 may include applications relating to spousal support only, when such applications involve a spousal support order made under the Divorce Act. In this context, “a spousal support only” application means an application submitted to a provincial or territorial Central Authority, which does not include a request for assistance relating to child support matters.
When
On a day to be fixed by order of the Governor in Council.
Application of Creditor to Court
Recognition of State Party decision varying support order
(s 29.3 (1), Divorce Act)
New section
Recognition of State Party decision varying support order
29.3 (1) A creditor may submit to a court in the province in which the debtor is habitually resident an application for recognition— and, if applicable, for enforcement — of a decision of a State Party that has the effect of varying a support order.
What is the change
This subsection provides that a creditor may submit an application directly to a court in the province or territory in which the debtor habitually resides, for the recognition, or the recognition and enforcement of, a foreign decision that has the effect of varying a support order originally made under the Divorce Act.
Reason for the change
This provision is required to comply with 2007 Convention obligations. Under the 2007 Convention, direct requests to competent authorities must be available to foreign creditors who seek to have their support orders recognized, or recognized and enforced in a province or territory to which the Convention’s application has been extended. This provision also allows a foreign creditor who has a spousal support order only (i.e. no child support order) to have it recognized and enforced under the Convention as a direct request to court but without the assistance of a Central Authority.
In this instance, recognition under the Divorce Act happens in very specific circumstances: a court grants a support order in Canada under the Act; one of the former spouses moves to a State Party, where the support order is subsequently varied; and then the parties want to have the order made in the State Party enforced in Canada.
When
On a day to be fixed by order of the Governor in Council.
Registration and recognition
(s 29.3 (2), Divorce Act)
New section
Registration and recognition
(2) The decision of the State Party shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.
What is the change
The amendment provides that the foreign decision must be registered according to the law of the province/territory, and that provincial/territorial law applies to the recognition of a decision.
Reason for the change
Previously, no process existed under federal legislation to recognize foreign orders that had the effect of varying a Divorce Act order. Under the new section, applications for recognition under the 2007 Convention in relation to foreign orders modifying a Divorce Act order would take place according to the rules set out under the law of the province/territory, including the grounds for objecting to recognition of the order.
When
On a day to be fixed by order of the Governor in Council.
Enforcement
(s 29.3 (3), Divorce Act)
New section
Enforcement
(3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.
What is the change
The recognition of a foreign order in a province or territory is deemed to have the same effect as a variation order made under the Divorce Act. This order has legal effect throughout Canada and is enforceable under provincial or territorial law.
Reason for the change
Once the recognition process is completed, the order has legal effect throughout Canada. It will make it easier to keep enforcing support obligations when a debtor moves from one province or territory to another within Canada. This would apply even if the province or territory where the debtor moves has not implemented the Convention as the order would be a Divorce Act order and therefore enforceable across all provinces and territories.
When
On a day to be fixed by order of the Governor in Council.
Application of Debtor to Court
(s 29.4 (1), Divorce Act)
New section
Application of Debtor to Court
Recognition of State Party decision suspending or limiting enforcement of support order
29.4 (1) A debtor may submit to a court in the province in which the creditor is habitually resident an application for recognition of a decision of a State Party that has the effect of suspending or limiting the enforcement of a support order.
What is the change
A foreign debtor can apply directly to court for recognition of a decision made in a State Party suspending or limiting a support order under the Divorce Act.
Reason for the change
Provincial and territorial law generally address the recognition of foreign orders. When a support order is made under the Act and later modified by a State Party under foreign law, the foreign modifying decision must be recognized under the Act for it to be recognized and enforceable in a province or territory to which the Convention has been extended.
Under the 2007 Convention, direct requests to competent authorities must be made available to foreign debtors who seek to have decisions that have the effect of suspending or limiting a support order, recognized or recognized and enforced in a province or territory to which the Convention has been extended. This amendment allows a debtor to make a direct application to a court without the assistance of a Central Authority.
When
On a day to be fixed by order of the Governor in Council.
Registration and recognition
(s 29.4 (2), Divorce Act)
New section
Registration and recognition
(2) The decision of the State Party shall be registered in accordance with the law of the province and that law, including the laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada, applies in respect of the recognition of the decision.
What is the change
This provision says that the foreign decision must be registered according to the law of the province or territory; provincial or territorial law applies with respect to recognition of the decision.
Reason for the change
Previously, no process existed under federal legislation to recognize foreign orders that had the effect of varying a Divorce Act order. Under the subsection, applications for recognition under the 2007 Convention in relation to foreign orders modifying a Divorce Act order would take place according to the rules set out under the law of the province or territory, including the grounds for objecting to registration of the order.
When
On a day to be fixed by order of the Governor in Council.
Enforcement
(s 29.4 (3), Divorce Act)
New section
Enforcement
(3) A decision that is recognized in accordance with the law of the province is deemed to be an order made under section 17, has legal effect throughout Canada and may be enforced in any manner provided for by the law of that province, including its laws respecting reciprocal enforcement between the province and a jurisdiction outside Canada.
What is the change
The recognition of a foreign order in a province or territory is deemed to have the same effect as a variation order made under the Act. This order has legal effect throughout Canada and is enforceable under provincial/territorial law.
Reason for the change
Once the recognition process is completed, the order has legal effect throughout Canada. It will make it easier to keep enforcing support obligations when a creditor moves from one province or territory to another within Canada. This would apply even if the province or territory where the creditor moves has not implemented the Convention as the order would be a Divorce Act order and therefore enforceable across all provinces and territories.
When
On a day to be fixed by order of the Governor in Council.
Limits on Divorce Proceedings
Support decision obtained in State Party
(s 29.5 (1), Divorce Act)
New section
Limits on Divorce Proceedings
Support decision obtained in State Party
29.5 (1) If a divorce proceeding is commenced in the province in which the debtor is habitually resident, the court of competent jurisdiction is not authorized to make an order under section 15.1 if the creditor has, in the State Party in which the creditor habitually resides, obtained a decision that requires the debtor to pay for the support of any or all of the children of the marriage.
What is the change
The court has no jurisdiction to hear and determine a request seeking an order for child support if 1) the creditor has already obtained, in a State Party, a decision that requires the debtor to pay support, and 2) the creditor still resides in the State Party.
Reason for the change
This provision creates an exception to ss 3 and 4 of the Act, which set out rules for determining the court’s jurisdiction to hear and determine a divorce proceeding and a corollary relief proceeding.
Article 18 of the 2007 Convention imposes a “legal restriction” on a debtor’s ability to vary an order or to seek a new one. Article 18 prohibits the debtor from asking another jurisdiction to vary a decision or to make a new decision where the original decision has been made in a State Party in which the creditor habitually resides, and the creditor continues to reside in that State Party.
In a divorce context, the legal restriction imposed by the 2007 Convention would apply in only one scenario. Article 18 prevents a debtor from asking a court to make a child support order if the creditor has already obtained a child support order in another State Party and the creditor continues to be habitually resident in that other State Party. This means that a Canadian court would not be authorized to make an order under section 15.1 as long as the creditor continued to be habitually resident in the State Party where the original support order was made.
The application of Article 18 of the 2007 Convention would not arise in the context of a variation application under the Divorce Act because in this scenario, there would be a pre-existing divorce order including support obligations made in Canada.
The court must comply with the 2007 Convention restriction, which “overrides” any jurisdictional rules under Canadian legislation that would otherwise permit the establishment of a support order unless an exception applies.
When
On a day to be fixed by order of the Governor in Council.
Exceptions
(s 29.5 (2), Divorce Act)
New section
Exceptions
(2) Subsection (1) does not apply if
- the creditor accepts the jurisdiction of the court, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity;
- the decision-making authority that made the decision in the State Party has no jurisdiction to vary the decision or make a new one or refuses to exercise its jurisdiction to do so; or
- the decision cannot be recognized or declared enforceable in the province in which the debtor is habitually resident.
What is the change
The amendment creates exceptions to the legal restriction on a debtor’s ability to establish an initial order.
Reason for the change
The general rule is that the court does not have jurisdiction to hear and determine a request to make a support order if the creditor has obtained, in a State Party, a decision that requires the debtor to pay child support and if the creditor still resides in the State Party unless an exception applies.
This subsection creates exceptions to the legal restriction on the debtor’s ability to establish a new order. A court in a province or in a territory would be in a position to make an order under s 15.1 if the creditor submits to the jurisdiction of the court, either expressly or by defending on the merits of the case without objecting to the jurisdiction at the first available opportunity.
The court would also be allowed to make a new order if the decision-making authority in the State Party had no jurisdiction to vary the decision or make a new one or refused to exercise its jurisdiction to do so. Finally, a court in a province or territory would also be allowed to hear and determine a request for support if the decision cannot be recognized or declared enforceable in the province in which the debtor is habitually resident.
When
On a day to be fixed by order of the Governor in Council.
- Date modified: