Chapter 7: Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars

• Date: 14 April 2025

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 

Divorce: Jurisdiction; Judgments; Foreign

Divorces; Grounds for Divorce; Bars

A. SEPARATION AGREEMENTS; DIVORCE SETTLEMENTS

Spouses may separate without seeking any order from the courts. If they do so, they usually

regulate the consequences of their separation by entering into a separation agreement dealing

with such matters as division of property, support rights, and the parenting of the children.1

Rights and obligations under a separation agreement are not automatically terminated

by a subsequent spousal reconciliation. For example, if property has already been transferred

by one spouse to the other under the terms of a separation agreement, a subsequent recon-

ciliation does not revest the property in the original owner. When lawyers draft a separation

agreement, they usually include a provision that specically deals with the eect of a subse-

quent reconciliation.

Separation agreements or minutes of settlement can also be entered into by divorcing

spouses, but a divorce judgment must be obtained from the court in order to terminate the

marriage and render the parties free to remarry a third party. Separated spouses who do not

reconcile may subsequently petition for divorce, but may also choose not to do so. Some

postpone divorce for a few years; others never get a divorce. Separated spouses who ne ver

divorce are wise to put their aairs in order by way of a separation agreement. Separated and

divorced spouses must also review their wills, insurance policies , pension plans, and other

important documents.

Spousal separation is the conventional prelude to a divorce. Separated spouses who wish

to obtain spousal or child support, or a parenting order with respect to their children, may

apply to the courts pursuant to provincial or territorial legislation. In the alternative, they

may institute divorce proceedings and claim spousal and child support or a parenting order

as corollary relief in the divorce proceedings. In this event, the relevant legislative provisions

will be found in the Divorce Act.2 In most cases, it is immaterial whether a separated spouse

 As to the right to have any proceeding conducted in either English or French or both ocial languages,

see Divorce Act, ss . and ..

 RSC , c  (d Supp).

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Divorce: Jurisdiction; Judgments; Foreign Divorces; Grounds for Divorce; Bars 143

or parent seeks relief under the federal Divorce Act or under provincial or territorial legis-

lation. e substantive outcome of the dispute will not normally be aected. Spousal claims

for property division are regulated, however, by provincial or territorial legislation and fall

outside the scope of the Divorce Act. Spousal property disputes can, nevertheless, be joine d

with a divorce petition so as to enable all economic and parenting issues between the spouses

to be determined by the same court at the time of the divorce. e vast majority of divorces

are uncontested, with the spouses settling their dierences by a negotiated agreement or

settlement. Less than 4 percent of all divorces involve a trial of contested issues where the

spouses give evidence in open court.

Before examining provincial and territorial legislation regulating such matters as par-

enting, support, and property division, it is appropriate to summarize the basic provisions

of the Divorce Act. ey relate to jurisdiction,

• the ground for divorce,

• bars to divorce,

• spousal and child support,

• parenting arrangements, and

• process.

e rst three of these are dealt with in this chapter, while spousal support is dealt with in

Chapter 8, child support in Chapter 9, parenting arrangements in Chapter 10, and process

in Chapter 6.

B. JURISDICTION

1) Introduction

Sections 3 to 6.3 of the Divorce Act include detailed provisions respecting the exercise of

judicial jurisdiction over a “divorce proceeding,” “corollary relief proceeding,” or “variation

proceeding.” Each of these terms bears a technical meaning that is dened in section 2(1) of

the Act.3

 As to interjurisdictional support orders, see ss – of the Divorce Act; see also ss –. of the Divorce

Act whereby the provisions of the Convention of 23 November 2007 on the International Recovery of Child

Support and Other Forms of Family Maintenance ( Hague Child Support Convention) have the

force of law in Canada insofar as they relate to subjects that fall within the legislative competence of

Parliament. As to the implementation of the Convention of 19 October 1996 on Jurisdiction, Applicable

Law, Recognition, Enforcement and Co-operation in Respect of Parental Responsibility and Measures for

the Protection of Children, see the Divorce Act, ss –. And see John-Paul E Boyd, “A Brief Overview

of Bill C-, An Act to Amend the Divorce Act and Related Legislation; Part : Amendments Relating

to Interjurisdictional Agreements and Treaties” (June ) online: Canadian Research Institute For

Law and the Family https://afccontario.ca/wp-content/uploads///Boyd-Overview-of-Bill-C-Pt-

-June-.pdf; Department of Justice, Canada, “e Divorce Act Changes Explained: Par t II” online:

www.justice.gc.ca/eng/-df/c-mdf/dace-clde/index.html. e  Hague Child Support Convention

came into force for Canada and applies to the provinces of Manitoba and Ontario on February ,

and to British Columbia on  March . It is expected that the Convention will be progressively

implemented in other provinces and territories in Canada: see Department of Justice, Canada, “Enforce-

ment of Child and Spousal Support Payments Between Provinces, Territories and Countries,” online:

https://justice.gc.ca/eng/-df/enforce-execution/enforce-execut.html. Se e also Ontario FRO website

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144   

2) Definition of “Court”

e denition of “court” in section 2(1) of the Divorce Act designates a particular court

in each province or territory that has jurisdiction to entertain proceedings under the Act.

A designated court must be presided over by federally appointed judges. is reects the

constitutional limitations imposed on both the Parliament of Canada and the provincial

legislatures by section 96 of e Constitution Act, 1867.4

3) Exercise of Jurisdiction by Judge Alone

Section 7 of the Divorce Act expressly provides that the jurisdiction to grant a divorce is

exercisable only by a judge without a jury.

4) Habitual Residence

In Hiebert v Fingerote, Burrows J, of the Alberta Court of Queen’s Bench, observed that “[a]ll

the provisions in the Divorce Act which previously made jurisdiction depend on where a

spouse or a child was ‘ordinarily resident’ have been changed to make jurisdiction depend

on where the spouse or child is ‘habitually resident.’” Burrows J further observed that com-

mentary on the amended Divorce Act provided by the Department of Justice, Canada, states

that “[c]ase law indicates no practical dierence in meaning between ‘ordinarily resident’ and

‘habitually resident’.”5 And in the words of Labach J, of the Saskatchewan Court of King’s Bench:

[29] To pursue a divorce proceeding under the Divorce Act in a particular province is contin-

gent on one of the parties being habitually resident in that province for at least one year prior to

the proceeding being commenced. is right is based on statute and must be exercised accord-

ing to the statute. As such, courts have strictly interpreted this residency requirement. Parties

cannot waive the residency requirement. ere is no constitutional right to a divorce that

allows the Court to reduce or eliminate the residency requirement. e Court is bound by this

requirement and cannot acquire jurisdiction unless the parties comply with the requirement. . . .

[30] e words “habitually resident” are relatively new to the English version of section

3(1) of the Divorce Act. Prior to March 2021, section 3(1) referred to either spouse having to

be “ordinarily resident” in the province for at least a year preceding commencement of the

proceeding for that province to have jurisdiction. When the amendments to the Divorce Act

came into force on March 1, 2021, the words “ordinarily resident” in section 3(1) had been

and the Hague Conference on Private International Law website, subheading “Child Support,” online:

HCCH.net; and see Andina van Isschot & Annick Boulay, “Strengthening Family Justice Services:

Recent Changes to the Family Orders and Agreements Enforcement Assistance Act and Canada’s Imple-

mentation of the  Hague Child Support Convention” (County of Carleton Law Association, rd

Annual Institute of Family Law,  April , Montebello, Quebec).

 (UK),  &  Vict, c . See McEvoy v New Brunswick (AG), []  SCR , (sub nom Re Court of

Unied Criminal Jurisdiction)  NBR (d) .

 Hiebert v Fingerote,  ABQB  at para . As to the meaning of “ordinarily resident,” see Payne &

Payne, Canadian Family Law, th ed (Toronto: Irwin Law, ) ch , Section B(): “Ordinarily Resi-

dent”; see also English v McCurdy,  BCCA ; Haroon v Haroon,  ONSC .

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