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

Act current to 2017-11-20 and last amended on 2015-02-26. Previous Versions

Marginal note:Variation order by affidavit, etc.

 Where both former spouses are ordinarily resident in different provinces, a court of competent jurisdiction may, in accordance with any applicable rules of the court, make a variation order pursuant to subsection 17(1) on the basis of the submissions of the former spouses, whether presented orally before the court or by means of affidavits or any means of telecommunication, if both former spouses consent thereto.

  • 1993, c. 8, s. 2.

Provisional Orders

Marginal note:Definitions
  •  (1) In this section and section 19,

    Attorney General

    procureur général

    Attorney General, in respect of a province, means

    • (a) for Yukon, the member of the Executive Council of Yukon designated by the Commissioner of Yukon,

    • (b) for the Northwest Territories, the member of the Executive Council of the Northwest Territories designated by the Commissioner of the Northwest Territories,

    • (b.1) for Nunavut, the member of the Executive Council of Nunavut designated by the Commissioner of Nunavut, and

    • (c) for the other provinces, the Attorney General of the province,

    and includes any person authorized in writing by the member or Attorney General to act for the member or Attorney General in the performance of a function under this section or section 19; (procureur général)

    provisional order

    ordonnance conditionnelle

    provisional order means an order made pursuant to subsection (2). (ordonnance conditionnelle)

  • Marginal note:Provisional order

    (2) Notwithstanding paragraph 5(1)(a) and subsection 17(1), where an application is made to a court in a province for a variation order in respect of a support order and

    • (a) the respondent in the application is ordinarily resident in another province and has not accepted the jurisdiction of the court, or both former spouses have not consented to the application of section 17.1 in respect of the matter, and

    • (b) in the circumstances of the case, the court is satisfied that the issues can be adequately determined by proceeding under this section and section 19,

    the court shall make a variation order with or without notice to and in the absence of the respondent, but such order is provisional only and has no legal effect until it is confirmed in a proceeding under section 19 and, where so confirmed, it has legal effect in accordance with the terms of the order confirming it.

  • Marginal note:Transmission

    (3) Where a court in a province makes a provisional order, it shall send to the Attorney General for the province

    • (a) three copies of the provisional order certified by a judge or officer of the court;

    • (b) a certified or sworn document setting out or summarizing the evidence given to the court; and

    • (c) a statement giving any available information respecting the identification, location, income and assets of the respondent.

  • Marginal note:Idem

    (4) On receipt of the documents referred to in subsection (3), the Attorney General shall send the documents to the Attorney General for the province in which the respondent is ordinarily resident.

  • Marginal note:Further evidence

    (5) Where, during a proceeding under section 19, a court in a province remits the matter back for further evidence to the court that made the provisional order, the court that made the order shall, after giving notice to the applicant, receive further evidence.

  • Marginal note:Transmission

    (6) Where evidence is received under subsection (5), the court that received the evidence shall forward to the court that remitted the matter back a certified or sworn document setting out or summarizing the evidence, together with such recommendations as the court that received the evidence considers appropriate.

  • R.S., 1985, c. 3 (2nd Supp.), s. 18;
  • 1993, c. 8, s. 3, c. 28, s. 78;
  • 2002, c. 7, s. 159;
  • 2014, c. 2, s. 33.
Marginal note:Transmission
  •  (1) On receipt of any documents sent pursuant to subsection 18(4), the Attorney General for the province in which the respondent is ordinarily resident shall send the documents to a court in the province.

  • Marginal note:Procedure

    (2) Subject to subsection (3), where documents have been sent to a court pursuant to subsection (1), the court shall serve on the respondent a copy of the documents and a notice of a hearing respecting confirmation of the provisional order and shall proceed with the hearing, in the absence of the applicant, taking into consideration the certified or sworn document setting out or summarizing the evidence given to the court that made the provisional order.

  • Marginal note:Return to Attorney General

    (3) Where documents have been sent to a court pursuant to subsection (1) and the respondent apparently is outside the province and is not likely to return, the court shall send the documents to the Attorney General for that province, together with any available information respecting the location and circumstances of the respondent.

  • Marginal note:Idem

    (4) On receipt of any documents and information sent pursuant to subsection (3), the Attorney General shall send the documents and information to the Attorney General for the province of the court that made the provisional order.

  • Marginal note:Right of respondent

    (5) In a proceeding under this section, the respondent may raise any matter that might have been raised before the court that made the provisional order.

  • Marginal note:Further evidence

    (6) Where, in a proceeding under this section, the respondent satisfies the court that for the purpose of taking further evidence or for any other purpose it is necessary to remit the matter back to the court that made the provisional order, the court may so remit the matter and adjourn the proceeding for that purpose.

  • Marginal note:Order of confirmation or refusal

    (7) Subject to subsection (7.1), at the conclusion of a proceeding under this section, the court shall make an order

    • (a) confirming the provisional order without variation;

    • (b) confirming the provisional order with variation; or

    • (c) refusing confirmation of the provisional order.

  • Marginal note:Guidelines apply

    (7.1) A court making an order under subsection (7) in respect of a child support order shall do so in accordance with the applicable guidelines.

  • Marginal note:Further evidence

    (8) The court, before making an order confirming the provisional order with variation or an order refusing confirmation of the provisional order, shall decide whether to remit the matter back for further evidence to the court that made the provisional order.

  • Marginal note:Interim order for support of children

    (9) Where a court remits a matter pursuant to this section in relation to a child support order, the court may, pending the making of an order under subsection (7), make an interim order in accordance with the applicable guidelines requiring a spouse to pay for the support of any or all children of the marriage.

  • Marginal note:Interim order for support of spouse

    (9.1) Where a court remits a matter pursuant to this section in relation to a spousal support order, the court may make an interim order requiring a spouse to secure or pay, or to secure and pay, such lump sum or periodic sums, or such lump sum and periodic sums, as the court thinks reasonable for the support of the other spouse, pending the making of an order under subsection (7).

  • Marginal note:Terms and conditions

    (10) The court may make an order under subsection (9) or (9.1) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order as it thinks fit and just.

  • Marginal note:Provisions applicable

    (11) Subsections 17(4), (4.1) and (6) to (7) apply, with such modifications as the circumstances require, in respect of an order made under subsection (9) or (9.1) as if it were a variation order referred to in those subsections.

  • Marginal note:Report and filing

    (12) On making an order under subsection (7), the court in a province shall

    • (a) send a copy of the order, certified by a judge or officer of the court, to the Attorney General for that province, to the court that made the provisional order and, where that court is not the court that made the support order in respect of which the provisional order was made, to the court that made the support order;

    • (b) where an order is made confirming the provisional order with or without variation, file the order in the court; and

    • (c) where an order is made confirming the provisional order with variation or refusing confirmation of the provisional order, give written reasons to the Attorney General for that province and to the court that made the provisional order.

  • R.S., 1985, c. 3 (2nd Supp.), s. 19;
  • 1993, c. 8, s. 4;
  • 1997, c. 1, s. 7.
 
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