The Divorce Act is primarily concerned with the substantive rights and obligations of divorcing and divorced spouses and parents. Matters relating to evidence and procedure are primarily regulated by provincial and territorial legislation and rules of court. Only a few aspects of the divorce process are regulated by the Divorce Act. They include the statutory duties of lawyers and the courts respecting reconciliation and the duties of lawyers to promote the use of negotiation and mediation in resolving custody and access disputes.352The definition of "court" in subsection 2(1) of the Divorce Act signifies that divorce is a matter that must be adjudicated by courts presided over by federally appointed judges. Provincially appointed judges have no jurisdiction to deal with divorce, although they have power to enforce orders for support or custody that have been granted in divorce proceedings.
The Divorce Act does not require that a divorce petition be tried in open court. Many provinces and territories have introduced so-called "desktop" uncontested divorces where the spouses do not personally appear in court. Instead, the relevant evidence is presented by way of affidavits.
The current Divorce Act introduced the innovative procedure of joint petitions for divorce and joint applications for support, custody, and access.353
Joint petitions are only appropriate when the spouses are in agreement and there are no...