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

Marginal note:Certification

7.6 Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a party to a proceeding shall contain a statement by the party certifying that they are aware of their duties under sections 7.1 to 7.5.

Legal Adviser

Marginal note:Reconciliation

• 7.7 (1) Unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so, it is the duty of every legal adviser who undertakes to act on a spouse’s behalf in a divorce proceeding

  • (a) to draw to the attention of the spouse the provisions of this Act that have as their object the reconciliation of spouses; and

  • (b) to discuss with the spouse the possibility of the reconciliation of the spouses and to inform the spouse of the marriage counselling or guidance facilities known to the legal adviser that might be able to assist the spouses to achieve a reconciliation.

• Marginal note:Duty to discuss and inform

  (2) It is also the duty of every legal adviser who undertakes to act on a person’s behalf in any proceeding under this Act

  • (a) to encourage the person to attempt to resolve the matters that may be the subject of an order under this Act through a family dispute resolution process, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so;

  • (b) to inform the person of the family justice services known to the legal adviser that might assist the person

    • (i) in resolving the matters that may be the subject of an order under this Act, and

    • (ii) in complying with any order or decision made under this Act; and

  • (c) to inform the person of the parties’ duties under this Act.

• Marginal note:Certification

  (3) Every document that formally commences a proceeding under this Act, or that responds to such a document, that is filed with a court by a legal adviser shall contain a statement by the legal adviser certifying that they have complied with this section.

Court

Marginal note:Purpose of section

• 7.8 (1) The purpose of this section is to facilitate

  • (a) the identification of orders, undertakings, recognizances, agreements or measures that may conflict with an order under this Act; and

  • (b) the coordination of proceedings.

• Marginal note:Information regarding other orders or proceedings

  (2) In a proceeding for corollary relief and in relation to any party to that proceeding, the court has a duty to consider if any of the following are pending or in effect, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so:

  • (a) a civil protection order or a proceeding in relation to such an order;

  • (b) a child protection order, proceeding, agreement or measure; or

  • (c) an order, proceeding, undertaking or recognizance in relation to any matter of a criminal nature.

  In order to carry out the duty, the court may make inquiries of the parties or review information that is readily available and that has been obtained through a search carried out in accordance with provincial law, including the rules made under subsection 25(2).

• Marginal note:Definition of civil protection order

  (3) In this section, civil protection order means a civil order that is made to protect a person’s safety, including an order that prohibits a person from

  • (a) being in physical proximity to a specified person or following a specified person from place to place;

  • (b) contacting or communicating with a specified person, either directly or indirectly;

  • (c) attending at or being within a certain distance of a specified place or location;

  • (d) engaging in harassing or threatening conduct directed at a specified person;

  • (e) occupying a family home or a residence; or

  • (f) engaging in family violence.

Divorce

Marginal note:Divorce

• 8 (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

• Marginal note:Breakdown of marriage

  (2) Breakdown of a marriage is established only if

  • (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

  • (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

    • (i) committed adultery, or

    • (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

• Marginal note:Calculation of period of separation

  (3) For the purposes of paragraph (2)(a),

  • (a) spouses shall be deemed to have lived separate and apart for any period during which they lived apart and either of them had the intention to live separate and apart from the other; and

  • (b) a period during which spouses have lived separate and apart shall not be considered to have been interrupted or terminated

    • (i) by reason only that either spouse has become incapable of forming or having an intention to continue to live separate and apart or of continuing to live separate and apart of the spouse’s own volition, if it appears to the court that the separation would probably have continued if the spouse had not become so incapable, or

    • (ii) by reason only that the spouses have resumed cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose.

9 [Repealed, 2019, c. 16, s. 9]

Marginal note:Duty of court — reconciliation

• 10 (1) In a divorce proceeding, it is the duty of the court, before considering the evidence, to satisfy itself that there is no possibility of the reconciliation of the spouses, unless the circumstances of the case are of such a nature that it would clearly not be appropriate to do so.

• Marginal note:Adjournment

  (2) Where at any stage in a divorce proceeding it appears to the court from the nature of the case, the evidence or the attitude of either or both spouses that there is a possibility of the reconciliation of the spouses, the court shall

  • (a) adjourn the proceeding to afford the spouses an opportunity to achieve a reconciliation; and

  • (b) with the consent of the spouses or in the discretion of the court, nominate

    • (i) a person with experience or training in marriage counselling or guidance, or

    • (ii) in special circumstances, some other suitable person,

    to assist the spouses to achieve a reconciliation.

• Marginal note:Resumption

  (3) Where fourteen days have elapsed from the date of any adjournment under subsection (2), the court shall resume the proceeding on the application of either or both spouses.

• Marginal note:Nominee not competent or compellable

  (4) No person nominated by a court under this section to assist spouses to achieve a reconciliation is competent or compellable in any legal proceedings to disclose any admission or communication made to that person in his or her capacity as a nominee of the court for that purpose.

• Marginal note:Evidence not admissible

  (5) Evidence of anything said or of any admission or communication made in the course of assisting spouses to achieve a reconciliation is not admissible in any legal proceedings.

Marginal note:Duty of court — bars

• 11 (1) In a divorce proceeding, it is the duty of the court

  • (a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;

  • (b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and

  • (c) where a divorce is sought in circumstances described in paragraph 8(2)(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.

• Marginal note:Revival

  (2) Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).

• Marginal note:Condonation

  (3) For the purposes of this section, a continuation or resumption of cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute condonation.

• Marginal note:Definition of collusion

  (4) In this section, collusion means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the exercise of parenting time or decision-making responsibility.

Marginal note:Effective date generally

• 12 (1) Subject to this section, a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.

• Marginal note:Special circumstances

  (2) Where, on or after rendering a judgment granting a divorce,

  • (a) the court is of the opinion that by reason of special circumstances the divorce should take effect earlier than the thirty-first day after the day on which the judgment is rendered, and

  • (b) the spouses agree and undertake that no appeal from the judgment will be taken, or any appeal from the judgment that was taken has been abandoned,

  the court may order that the divorce takes effect at such earlier time as it considers appropriate.

• Marginal note:Effective date where appeal

  (3) A divorce in respect of which an appeal is pending at the end of the period referred to in subsection (1), unless voided on appeal, takes effect on the expiration of the time fixed by law for instituting an appeal from the decision on that appeal or any subsequent appeal, if no appeal has been instituted within that time.

• Marginal note:Certain extensions to be counted

  (4) For the purposes of subsection (3), the time fixed by law for instituting an appeal from a decision on an appeal includes any extension thereof fixed pursuant to law before the expiration of that time or fixed thereafter on an application instituted before the expiration of that time.

• Marginal note:No late extensions of time for appeal

  (5) Notwithstanding any other law, the time fixed by law for instituting an appeal from a decision referred to in subsection (3) may not be extended after the expiration of that time, except on an application instituted before the expiration of that time.

• Marginal note:Effective date where decision of Supreme Court of Canada

  (6) A divorce in respect of which an appeal has been taken to the Supreme Court of Canada, unless voided on the appeal, takes effect on the day on which the judgment on the appeal is rendered.

• Marginal note:Certificate of divorce

  (7) Where a divorce takes effect in accordance with this section, a judge or officer of the court that rendered the judgment granting the divorce or, where that judgment has been appealed, of the appellate court that rendered the judgment on the final appeal, shall, on request, issue to any person a certificate that a divorce granted under this Act dissolved the marriage of the specified persons effective as of a specified date.

• Marginal note:Conclusive proof

  (8) A certificate referred to in subsection (7), or a certified copy thereof, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.