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Bill C-41

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2nd Session, 35th Parliament,
45 Elizabeth II, 1996

The House of Commons of Canada

BILL C-41

An Act to amend the Divorce Act, the Family Orders and Agreements Enforcement Assistance Act, the Garnishment, Attachment and Pension Diversion Act and the Canada Shipping Act

      Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:

R.S., c. 3 (2nd Supp.); R.S., c. 27 (2nd Supp.); 1990, c. 18; 1992, c. 51; 1993, cc. 8, 28

Divorce Act

1. (1) The definitions ``corollary relief proceeding'', ``divorce proceeding'' and ``support order'' in subsection 2(1) of the Divorce Act are replaced by the following:

``corollary relief proceeding''
« action en mesures accessoires »

``corollary relief proceeding'' means a proceeding in a court in which either or both former spouses seek a child support order, a spousal support order or a custody order;

``divorce proceeding''
« action en divorce »

``divorce proceeding'' means a proceeding in a court in which either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order;

``support order''
« ordonnance alimentaire »

``support order'' means a child support order or a spousal support order;

(2) Paragraphs (a) and (b) of the definition ``child of the marriage'' in subsection 2(1) of the Act are replaced by the following:

      (a) is under the age of majority and who has not withdrawn from their charge, or

      (b) is the age of majority or over and under their charge but unable, by reason of illness, disability, pursuit of reasonable education or other cause, to withdraw from their charge or to obtain the necessaries of life;

(3) Subsection 2(1) of the Act is amended by adding the following in alphabetical order:

``age of majority''
« majeur »

``age of majority'', in respect of a child, means the age of majority as determined by the laws of the province where the child ordinarily resides, or, if the child ordinarily resides outside of Canada, eighteen years of age;

``applicable guidelines''
« lignes directrices applicables »

``applicable guidelines'' means

      (a) where both spouses or former spouses are ordinarily resident in the same province at the time an application for a child support order or a variation order in respect of a child support order is made, or the amount of a child support order is to be recalculated pursuant to section 25.1, and that province has been designated by an order made under subsection (5), the laws of the province specified in the order, and

      (b) in any other case, the Federal Child Support Guidelines;

``child support order''
« ordonnance alimentaire au profit d'un enfant »

``child support order'' means an order made under subsection 15.1(1);

``Federal Child Support Guidelines''
« lignes directrices fédérales sur les pensions alimentaires pour enfants »

``Federal Child Support Guidelines'' means the guidelines made under section 26.1;

``provincial child support service''
« service provinciale des aliments pour enfants »

``provincial child support service'' means any service, agency or body designated in an agreement with a province under subsection 25.1(1);

``spousal support order''
« ordonnance alimentaire au profit d'un époux »

``spousal support order'' means an order made under subsection 15.2(1);

(4) Section 2 of the Act is amended by adding the following after subsection (4):

Provincial child support guidelines

(5) The Governor in Council may, by order, designate a province for the purposes of the definition ``applicable guidelines'' in subsection (1) if the laws of the province establish comprehensive guidelines for the determination of child support that deal with the matters referred to in section 26.1. The order shall specify the laws of the province that constitute the guidelines of the province.

Amendments included

(6) The guidelines of a province referred to in subsection (5) include any amendments made to them from time to time.

1.1 Paragraph 11(1)(b) of the Act is replaced by the following:

    (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

2. Section 15 of the Act is replaced by the following:

Interpretation

Definition of ``spouse''

15. In sections 15.1 to 16, ``spouse'' has the meaning assigned by subsection 2(1), and includes a former spouse.

Child Support Orders

Child support order

15.1 (1) A court of competent jurisdiction may, on application by either or both spouses, make an order requiring a spouse to pay for the support of any or all children of the marriage.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, make an interim order requiring a spouse to pay for the support of any or all children of the marriage, pending the determination of the application under subsection (1).

Guidelines apply

(3) A court making an order under subsection (1) or an interim order under subsection (2) shall do so in accordance with the applicable guidelines.

Terms and conditions

(4) The court may make an order under subsection (1) or an interim order under subsection (2) for a definite or indefinite period or until a specified event occurs, and may impose terms, conditions or restrictions in connection with the order or interim order as it thinks fit and just.

Court may take agreement, etc., into account

(5) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

    (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

    (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6) Where the court awards, pursuant to subsection (5), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(7) Notwithstanding subsection (3), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(8) For the purposes of subsection (7), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

Spousal Support Orders

Spousal support order

15.2 (1) A court of competent jurisdiction may, on application by either or both spouses, make an 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.

Interim order

(2) Where an application is made under subsection (1), the court may, on application by either or both spouses, 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 determination of the application under subsection (1).

Terms and conditions

(3) The court may make an order under subsection (1) or an interim order under subsection (2) 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.

Factors

(4) In making an order under subsection (1) or an interim order under subsection (2), the court shall take into consideration the condition, means, needs and other circumstances of each spouse, including

    (a) the length of time the spouses cohabited;

    (b) the functions performed by each spouse during cohabitation; and

    (c) any order, agreement or arrangement relating to support of either spouse.

Spousal misconduct

(5) In making an order under subsection (1) or an interim order under subsection (2), the court shall not take into consideration any misconduct of a spouse in relation to the marriage.

Objectives of spousal support order

(6) An order made under subsection (1) or an interim order under subsection (2) that provides for the support of a spouse should

    (a) recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown;

    (b) apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

    (c) relieve any economic hardship of the spouses arising from the breakdown of the marriage; and

    (d) in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

Priority

Priority to child support

15.3 (1) Where a court is considering an application for a child support order and an application for a spousal support order, the court shall give priority to child support in determining the applications.

Reasons

(2) Where, as a result of giving priority to child support, the court is unable to make a spousal support order or the court makes a spousal support order in an amount that is less than it otherwise would have been, the court shall record its reasons for having done so.

Consequences of reduction or termination of child support order

(3) Where, as a result of giving priority to child support, a spousal support order was not made, or the amount of a spousal support order is less than it otherwise would have been, any subsequent reduction or termination of that child support constitutes a change of circumstances for the purposes of applying for a spousal support order, or a variation order in respect of the spousal support order, as the case may be.

3. The Act is amended by adding the following before section 16:

Custody Orders

4. The Act is amended by adding the following before section 17:

Variation, Rescission or Suspension of Orders

5. (1) Subsection 17(4) of the Act is replaced by the following:

Factors for child support order

(4) Before the court makes a variation order in respect of a child support order, the court shall satisfy itself that a change of circumstances as provided for in the applicable guidelines has occurred since the making of the child support order or the last variation order made in respect of that order.

Factors for spousal support order

(4.1) Before the court makes a variation order in respect of a spousal support order, the court shall satisfy itself that a change in the condition, means, needs or other circumstances of either former spouse has occurred since the making of the spousal support order or the last variation order made in respect of that order, and, in making the variation order, the court shall take that change into consideration.

(2) Section 17 of the Act is amended by adding the following after subsection (6):

Guidelines apply

(6.1) A court making a variation order in respect of a child support order shall do so in accordance with the applicable guidelines.

Court may take agreement, etc., into account

(6.2) Notwithstanding subsection (6.1), in making a variation order in respect of a child support order, a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines if the court is satisfied

    (a) that special provisions in an order, a judgment or a written agreement respecting the financial obligations of the spouses, or the division or transfer of their property, directly or indirectly benefit a child, or that special provisions have otherwise been made for the benefit of a child; and

    (b) that the application of the applicable guidelines would result in an amount of child support that is inequitable given those special provisions.

Reasons

(6.3) Where the court awards, pursuant to subsection (6.2), an amount that is different from the amount that would be determined in accordance with the applicable guidelines, the court shall record its reasons for having done so.

Consent orders

(6.4) Notwithstanding subsection (6.1), a court may award an amount that is different from the amount that would be determined in accordance with the applicable guidelines on the consent of both spouses if it is satisfied that reasonable arrangements have been made for the support of the child to whom the order relates.

Reasonable arrangements

(6.5) For the purposes of subsection (6.4), in determining whether reasonable arrangements have been made for the support of a child, the court shall have regard to the applicable guidelines. However, the court shall not consider the arrangements to be unreasonable solely because the amount of support agreed to is not the same as the amount that would otherwise have been determined in accordance with the applicable guidelines.

(3) The portion of subsection 17(7) of the Act before paragraph (a) is replaced by the following:

Objectives of variation order varying spousal support order

(7) A variation order varying a spousal support order should

(4) Paragraph 17(7)(b) of the Act is replaced by the following:

    (b) apportion between the former spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage;

(5) Subsection 17(8) of the Act is repealed.

(6) Subsection 17(10) of the Act is replaced by the following:

Limitation

(10) Notwithstanding subsection (1), where a spousal support order provides for support for a definite period or until a specified event occurs, a court may not, on an application instituted after the expiration of that period or the occurrence of the event, make a variation order for the purpose of resuming that support unless the court is satisfied that

    (a) a variation order is necessary to relieve economic hardship arising from a change described in subsection (4.1) that is related to the marriage; and

    (b) the changed circumstances, had they existed at the time of the making of the spousal support order or the last variation order made in respect of that order, as the case may be, would likely have resulted in a different order.

6. The Act is amended by adding the following before section 18:

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