There are several notable amendments to the Divorce Act (the “Act”) that will come into force on March 1, 2021. These changes are made through Bill C-78 which received Royal Assent on June 21, 2019. This article highlights some of the major amendments to the jurisdictional provisions under the Act.1
Two pending proceedings
The amendment eliminates the requirement that the first proceeding is discontinued within 30 days in situations where there are two proceedings (divorce, corollary relief or variation) involving the same spouses but started on different days. In such cases, the court where the first application was made has jurisdiction, unless the first proceeding is discontinued.
Where the proceedings are started on the same day in different provinces, and neither proceeding is discontinued [within 40 days] after it was commenced, the amendment limits the Federal Court’s authority under the Act to a determination of the issue of jurisdiction only (i.e., which court should hear the matter). Previously, the Federal Court heard the entire proceeding (divorce, corollary relief or variation). The change also extends the time to discontinue one of the proceedings from 30 to 40 days.
Habitual residence as determinant of jurisdiction
The court can now transfer a proceeding (divorce, corollary relief, or variation proceeding) that includes an application for or to vary a parenting order to the province where the child habitually resides instead of the province to which a child is most substantially connected. Also, it is no longer a requirement that the proceeding is opposed. The amendment gives courts greater discretion to transfer such proceedings even in unopposed applications.
Where a parenting proceeding is underway, the application for a contact order must be brought to the court hearing the proceeding. If no parenting proceeding is pending, an application for a contact order by a third party should generally take place in the child’s habitual residence. However, a contact order may not be sought in the absence of an existing parenting order under the Act. A non-spouse seeking a contact order would have to apply under provincial law. This is a new introduction by Bill C-78.
In cases of parental child abduction, specific conditions must be met for the court in the province to which the child has been moved to hear an application for a parenting order. If the conditions are not met, the court in the province where the child habitually resided before the abduction must hear the application. This change aims to deter parental child abduction and encourage compliance with the notice requirements set out in the Act and provincial legislation.
Notwithstanding, a court in the province of the child’s habitual residence can transfer the application to a court in another province where the child is present if the Federal Court determines that that court should hear the application.
Children habitually resident outside Canada
When a child habitually resides outside Canada, a court in the jurisdiction where the child habitually resides is, in general, best placed to make and vary decisions about parenting and contact. However, in exceptional circumstances, a court in Canada can assume jurisdiction. Exceptional circumstances include, when the child is present in Canada, the urgency of the situation, avoiding multiplicity of proceedings and discouraging child abduction.
Interjurisdictional proceedings
The amendment introduces a summary application procedure similar to the one found in the uniform provincial Inter-jurisdictional Support Orders Act (ISO). The intention is to make it easier for families to obtain or vary a support order when they live in different jurisdictions. The new process applies to domestic and international matters. The amendments also introduce a mechanism to recognize a decision made in a designated jurisdiction that has the effect of varying an order made under the Divorce Act. A “designated jurisdiction” is a jurisdiction outside Canada designated under the ISO Acts.
Proceedings between two provinces
The amendment introduces a new procedure for obtaining or varying a support order involving former spouses who reside in different provinces. The new procedure is application-based and is intended to reduce the time and costs associated with the previous two-stage hearing procedure. An applicant can request the designated authority in their province to have child support calculated or recalculated by a provincial child support service in the province of the respondent. The applicant is not required to notify the other party of the application. The provincial child support service in the receiving jurisdiction determines eligibility.
There is now an express statutory provision dispensing with the requirement established in Waterman v Waterman, 2014 NSCA 110 where the Nova Scotia Court of Appeal found that an ISO applicant must be given proper notice of the ISO hearing in the respondent’s jurisdiction, including notice of the date, time, and location of the hearing, along with a copy of any additional materials submitted to the court. However, an applicant can choose to participate in the hearing and to be notified or served with the documents and other information.
Proceedings between a province and a designated jurisdiction
There are new provisions that allow a former spouse who is resident in a designated jurisdiction to request to have a child support amount calculated or recalculated by a provincial child support service if the service is available in the receiving jurisdiction. Previously, a former spouse living in a designated jurisdiction could not vary an order made under the Act unless they applied directly to a Canadian court in the jurisdiction where the respondent ordinarily resides. Now, a spouse living outside of Canada in a designated jurisdiction can use the new application procedure to obtain or vary an order under the Act. The provincial child support service determines eligibility.
Like it is in the case of inter-provincial jurisdiction, a former spouse must apply to a responsible authority in the designated jurisdiction. The responsible authority would send the application to the designated authority in the province where the applicant thinks the respondent is habitually resident. Also, there is no requirement for the applicant to notify the other party of the application. The applicant need not be given proper notice of the hearing in the respondent’s jurisdiction. By using this procedure, the applicant accepts that the hearing may be held without their participation. An applicant can, however, indicate that they wish to participate in the hearing.
Recognition of decision of designated jurisdiction
A former spouse may apply for the recognition, or for the recognition and enforcement, of a foreign decision that has the effect of varying a support order originally made under the Divorce Act. For example, when a court in Canada grants a support order under the Divorce Act; one of the former spouses moves to another country (a designated jurisdiction), and the support order is subsequently modified in that country. A court in Canada can then recognize and enforce the order made in the designated jurisdiction.
The foreign support order must be registered according to the law of the province to be recognized. Provincial legislation typically provides the respondent 30 days after receiving notice of registration to apply for it to be set aside as well as the grounds for objecting to its registration. Generally, the grounds for the non-recognition of a support order are:
- a party to the order did not have proper notice or a reasonable opportunity to be heard
- the foreign order is contrary to the public policy of the province
- the court that made the foreign order did not have jurisdiction to make the order
If there is no objection, the foreign order is registered. The recognition of a foreign in this manner is deemed to have the same effect as an order made under the Act. The order has legal effect throughout Canada as an order made under the Act and is enforceable under provincial and territorial law.
The amendments to provisions relating to jurisdiction are intended to improve efficiency and reduce the time and costs associated with the previous procedures. Hopefully, they will meet these expectations.
Lynda Chinweokwu is an incoming articling student at Andrew Law Office in Edmonton and can be connected on LinkedIn