Bill C-435

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First Reading

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1st Session, 41st Parliament,

60-61 Elizabeth II, 2011-2012

house of commons of canada

BILL C-435

An Act to amend the Civil Marriage Act (divorce and corollary relief)

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

SHORT TITLE

Short title

1. This Act may be cited as the Civil Marriage of Non-residents Act.

2005, c. 33

CIVIL MARRIAGE ACT

2. The Civil Marriage Act is amended by adding the following after section 1:

PART 1

MARRIAGE

3. Section 5 of the Act and the headings before it are replaced by the following:

Marriage of non-resident persons

5. (1) A marriage that is performed in Canada and that would be valid in Canada if the spouses were domiciled in Canada is valid for the purposes of Canadian law even though either or both of the spouses do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile.

Retroactivity

(2) Subsection (1) applies retroactively to a marriage that would have been valid under the law that was applicable in the province where the marriage was performed but for the lack of capacity of either or both of the spouses to enter into it under the law of their respective state of domicile.

Order dissolving marriage

(3) Any court order, made in Canada or elsewhere before the coming into force of this subsection, that declares the marriage to be null and void or that grants a divorce to the spouses dissolves the marriage, for the purposes of Canadian law, as of the day on which the order takes effect.

4. The heading before section 6 and sections 6 to 15 of the Act are replaced by the following:

PART 2

DISSOLUTION OF MARRIAGE FOR NON-RESIDENT SPOUSES

Definition of “court”

6. In this Part, “court”, in respect of a province, means

(a) for Ontario, the Superior Court of Justice;

(b) for Quebec, the Superior Court;

(d) for New Brunswick, Manitoba, Saskatchewan and Alberta, the Court of Queen’s Bench for the province;

(e) for Prince Edward Island and Newfoundland and Labrador, the trial division of the Supreme Court of the province; and

(f) for Yukon and the Northwest Territories, the Supreme Court, and in Nunavut, the Nunavut Court of Justice.

It also means any other court in the province whose judges are appointed by the Governor General and that is designated by the Lieutenant Governor in Council of the province as a court for the purposes of this Part.

Divorce — non-resident spouses

7. (1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if

(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;

(b) neither spouse resides in Canada at the time the application is made; and

(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

Application

(2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court of a province or a court located in the state where one of the spouses resides that declares that the other spouse

(a) is incapable of making decisions about his or her civil status because of a mental disability;

(b) is unreasonably withholding consent; or

Exception if spouse is found

(3) Despite paragraph (2)(c), the other spouse’s consent is required if that spouse is found in connection with the service of the application.

Corollary relief — orders

8. (1) If a divorce has been granted under section 7, the court of the province where the marriage was performed may, on application, make an order in respect of child custody, child support or spousal support if the courts located in the state or states where the former spouses reside decline to make such an order.

Divorce Act

(2) Sections 15 to 17 and 20 to 24 of the Divorce Act apply, with such modifications as are necessary, to an application made under subsection (1).

Variation order by affidavit, etc.

(3) If both former spouses consent, a court of competent jurisdiction may, in accordance with any applicable rules of the court, make a variation order pursuant to subsection 17(1) of the Divorce Act 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.

Effective date generally

9. (1) A divorce takes effect on the day on which the judgment granting the divorce is rendered.

Certificate of divorce

(2) After a divorce takes effect, the court must, 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.

Conclusive proof

(3) The certificate, or a certified copy of it, is conclusive proof of the facts so certified without proof of the signature or authority of the person appearing to have signed the certificate.

Legal effect throughout Canada

10. On taking effect, a divorce granted under this Act has legal effect throughout Canada.

Marriage dissolved

11. On taking effect, a divorce granted under this Act dissolves the marriage of the spouses.

Definition of “competent authority”

12. (1) In this section, “competent authority”, in respect of a court in a province, means the body, person or group of persons ordinarily competent under the laws of that province to make rules regulating the practice and procedure in that court.

Rules

(2) Subject to subsection (3), the competent authority may make rules applicable to any applications made under this Part in a court in a province, including rules

(a) regulating the practice and procedure in the court;

(b) respecting the conduct and disposition of any applications that are made under this Part without an oral hearing;

(d) prescribing and regulating any other matter considered expedient to attain the ends of justice and carry into effect the purposes and provisions of this Part.

Exercise of power

(3) The power of a competent authority to make rules for a court must be exercised in the like manner and subject to the like terms and conditions, if any, as the power to make rules for that court that are conferred on that authority by the laws of the province.

Not statutory instruments

(4) Rules that are made under this section by a competent authority that is not a judicial or quasi-judicial body are deemed not to be statutory instruments within the meaning and for the purposes of the Statutory Instruments Act.

Regulations

13. (1) The Governor in Council may make regulations for carrying out the purposes and provisions of this Part, including regulations providing for uniformity in the rules made under section 12.

Regulations prevail

(2) Any regulations that are made to provide for uniformity in the rules prevail over those rules.

COORDINATING AMENDMENT

Bill C-32

5. If Bill C-32, introduced in the 1st session of the 41st Parliament and entitled the Civil Marriage of Non-residents Act, receives royal assent, then, on the first day on which both section 4 of that Act and section 4 of this Act are in force, section 8 of the Civil Marriage Act is replaced by the following:

Corollary relief — orders

Divorce Act

(2) Sections 15 to 17 and 20 to 24 of the Divorce Act apply, with such modifications as are necessary, to an application made under subsection (1).

Variation order by affidavit, etc.

Published under authority of the Speaker of the House of Commons