The Divorce Act Changes Explained: Part II

In 1985, Canada’s Parliament enacted major revisions to almost every section of the 1968 Divorce Act. The 1985 legislation included procedures under the Divorce Act similar to those provided in provincial/territorial legislation to assist parties residing in different provinces and territories. Sections 18 and 19 of the Divorce Act introduced REMO/RESO-like provisions that provided for the granting of a provisional variation order in one province or territory and a confirmation hearing in another province or territory.

As of March 1, 2021, the amended Divorce Act provisions respecting inter-jurisdictional support are similar to those of ISO legislation adopted by the common law provinces and territories in the early 2000’s. There is now greater uniformity across provincial/territorial and federal legislative frameworks.

Divorce Act, Inter-jurisdictional Support, and former Bill C-78

Amendments to the Divorce Act under former Bill C-78 streamline inter-jurisdictional processes for establishing and varying support for former spouses. As noted, the previous inter-jurisdictional process under the Divorce Act was modeled on the former provincial/territorial reciprocal enforcement of maintenance or support orders acts (REMO/RESO). However, this process was limited to the variation of support orders between provinces and territories. This meant that a former spouse could not obtain an initial (first) support order through the inter-jurisdictional process. In addition, ex-spouses living in another country could not obtain or vary a Divorce Act order for support through this process, or have their foreign order, which has the effect of varying a Divorce Act support order, recognized and enforced in Canada. These limitations caused challenges for families where one or both former spouses were living abroad.

Amendments to the Divorce Act introduced a streamlined process akin to the provincial/territorial ISO process by eliminating the first-stage hearing and introduced a new summary application procedure. Changes also broadened the scope of the previous inter-jurisdictional process by allowing former spouses to obtain or vary a support order under the Divorce Act when the parties reside in different provinces/territories, or when one party lives in a province/territory and the other party lives in a “designated jurisdiction”.^Footnote16 This process is designed to be easier and less costly for families living in different jurisdictions (i.e. different provinces or territories, or countries). It also ensures consistency between inter-jurisdictional proceedings, whether they are conducted under provincial/territorial inter-jurisdictional legislation (ISO legislation) or the Divorce Act. Finally, the changes allow for the recognition of a support order made in a designated jurisdiction, when the foreign order has the effect of varying a Divorce Act support order.

The Department of Justice Canada publication The Divorce Act Changes Explained includes a description of these amended Divorce Act provisions respecting inter-jurisdictional support.

Inter-jurisdictional Proceedings under the Divorce Act involving Provinces/Territories, or involving a Province/Territory and a Designated Jurisdiction

Changes introduced by former Bill C-78 allow a former spouse to make an application to obtain or vary a support order made under the Divorce Act through a “designated authority”^Footnote17rather than commencing a court application. The application could be for an initial court order for support or for a variation of an existing support order. It could also be to request that the amount of child support be calculated or recalculated by a “provincial child support service”^Footnote18 in an inter-jurisdictional context.

The basic process for outgoing applications is now as follows:

• The former spouse seeking relief submits an application to the designated authority in their own province/territory or the responsible authority in their country (if they live in a designated jurisdiction).^Footnote19
• The designated authority of the applicant reviews the application and makes sure it is complete. It then sends it to the designated authority in the respondent’s province or territory.
• The designated authority in the respondent’s province/territory then sends the application to either a court in that jurisdiction or to a provincial child support service, if there is such a service in that province/territory with authority to deal with inter-jurisdictional cases.
• The respondent is then given notice of the application along with notice of what the respondent must do to respond to the application, including what information and documents to provide.
• Based on the information from both the applicant and the respondent, either a court or a provincial child support service in the respondent’s jurisdiction makes a decision.

Case Illustration

Audrey and Enrico separated two years ago. Audrey lives in Manitoba with their daughter, Tammy, and Enrico moved to Saskatchewan after the divorce.

Enrico has an order under the Divorce Act to pay child support. Last week, Audrey found out that Enrico had started a new job with a higher salary. He has been working at his new job for over six months. Audrey wants to vary the amount of child support that Enrico pays since his income has increased. To do that, Audrey can submit an inter-jurisdictional application to the designated authority of Manitoba. The designated authority of Manitoba will review Audrey’s application to make sure that it is complete. If the application is complete, the designated authority of Manitoba will send the application to the designated authority of Saskatchewan, the province in which Enrico resides.

The designated authority of Saskatchewan will send the application to the appropriate competent authority in Saskatchewan. A competent authority is either a court (typically the one closest to Enrico’s residence) or the provincial child support service in Saskatchewan. Based on the contents of the application, the designated authority of Saskatchewan will decide which entity is the appropriate competent authority. In Andrea’s case, since Enrico is not opposed to the variation, the appropriate competent authority will likely be a provincial child support service. The child support service will recalculate the child support amount based on the updated income information.^Footnote20

Conversion Applications

Further to former Bill C-78, section 18.2 of the Divorce Act sets out a mechanism to convert an application to vary a support order made under the Divorce Act to an inter-jurisdictional variation application. This conversion may take place at the request of the respondent (s. 18.2). If there is no action by the respondent, and if there is sufficient evidence, the court may hear the application in the respondent’s absence (s. 18.3 (1) a)). If there is insufficient evidence, then the court may convert the application to an inter-jurisdictional variation application (s.18.3 (1) b)). This conversion is only possible if both former spouses reside in Canada.

See Appendix C for charts outlining conversion applications under the Divorce Act.

Case Illustration

Sophie, who lives in Ontario, makes an application under section 17(1) (a) of the Divorce Act to vary a support order granting her child support for her three children.

Mark, the respondent, lives in Nova Scotia. Mark is served with the variation application. Mark would like to use the ISO-like process under the Divorce Act so that the application is heard in Nova Scotia. Mark can request that the Ontario court convert the variation application made under section 17(1) (a) to an inter-jurisdictional application within 40 days after being served with the application. As Sophie is only requesting variation of support (and not parenting i.e. changes related to parenting arrangements including the time that the children will spend with each parent and each parent’s decision-making responsibilities), the court must grant Mark’s conversion request. With this conversion, the application will be heard in Nova Scotia.

Recognition of Foreign Decisions under the Divorce Act

Prior to former Bill C-78 Divorce Act amendments, there was no process under Canadian federal family laws to recognize foreign orders that had the effect of varying a Divorce Act support order. The amended Divorce Act provides for the recognition of foreign orders where:

1. they have the effect of varying a Divorce Act support order;
2. one or both former spouses move to a new country (designated jurisdiction) that makes an order for a different support amount than that provided for in the Divorce Act order; and
3. one of the former spouses seeks recognition and enforcement of that foreign order in Canada.

Changes to the Divorce Act allow for the recognition of a support order made by a competent authority in another country where that country is a “designated jurisdiction”^Footnote21 and when the order made in the other country has the effect of varying a Divorce Act support order. The process for registering a foreign order for recognition is determined under provincial/territorial law, including the grounds for objecting to registration of the order. The order has legal effect throughout Canada, which facilitates enforcement.