Changes to Canada’s Divorce Act that came into effect on March 1, 2021 include major changes to jurisdictional rules.
There are several notable changes to Canada’s Divorce Act that came into effect on March 1, 2021. These changes are made through Bill C-78 which received Royal Assent on June 21, 2019. While the Divorce Act is a federal law that applies across the country, each province administers the Act. This overlap can lead to jurisdictional issues – which province’s courts, or other country’s courts in some cases, have the right to decide issues under the Act? This article highlights some of the major changes to the jurisdictional rules in the Act.
Two pending proceedings
Sometimes spouses each start proceedings under the Divorce Act on different days. These proceedings could be to get a divorce, or to deal with parenting or support issues. The new term removes the requirement that the first-filed proceeding be discontinued (cancelled) within 30 days. Now, the court having jurisdiction is the one where the first proceeding was filed, unless the person who started the first proceeding discontinues it.
Where both spouses start proceedings on the same day but in different provinces, they have 40 days to discontinue one of the proceedings. If one is not discontinued, one of the parties can apply to the Federal Court for a decision on jurisdiction only (which court should hear the matter). Before March 1, 2021, the time to discontinue one proceeding was only 30 days and the Federal Court could hear the entire proceeding.
Habitual residence of a child determines jurisdiction
If a court receives an application about a parenting order, it can transfer the proceeding to the court in the province where the child habitually resides. Previously, the Act used the term “substantially connected”. Also, it is no longer a requirement before transferring that the other parent oppose the proceeding. The court can transfer proceedings even where the application is not opposed and on its own motion.
Bill C-78 also introduced a process for applying for contact with a child under the Divorce Act. When a court is in the process of hearing an application for a parenting order, a non-spouse who wants a contact order must file their application with the same court. If no parenting proceeding is pending, a person wanting contact may apply for a contact order in the province where the child habitually resides. But, the court will not grant a contact order unless there is an existing parenting order under the Divorce Act. If there is no parenting order, the person seeking contact must apply for a contact order under provincial laws instead.
In cases of a parent moving the child without the other parent or the court’s permission, a court in the province where the child has been taken can only hear an application for a parenting order if certain conditions are met. Otherwise, the court in the province where the child habitually lived before their removal must hear the application. This change aims to deter parental child abduction and encourage parties to give notice of a move as set out in the Divorce Act and provincial laws. If the parents start parenting proceedings on the same day in different provinces, the Federal Court can decide which court should hear the application.
Children habitually residing outside Canada
When a child habitually resides outside Canada, generally the court in the jurisdiction where the child habitually lives should decide on parenting or contact orders. 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 many of the same proceedings, and
- discouraging child abduction.
Interjurisdictional support proceedings
There is now a summary application procedure like the one found in each province’s Inter-jurisdictional Support Orders Act (ISO). The intent of the new process is to make it easier for families to get or change a support order when they live in different jurisdictions – both different provinces and different countries. The changes also introduce a process for a Canadian court to recognize a decision made in a designated jurisdiction that changes an order previously made under the Divorce Act. A “designated jurisdiction” is a jurisdiction (state or country) outside Canada that is listed in the ISO Acts.
Proceedings between two provinces
The March 1, 2021 changes introduce a new procedure for getting or changing a support order where the applicant and the respondent live in different provinces. The new application-based procedure will hopefully be cheaper and faster than the old two-stage procedure. A former spouse (the applicant) can ask the designated authority (government office) in their province to have child support calculated or recalculated by the provincial child support service in the respondent’s province. The respondent’s provincial child support service determines eligibility. If the service cannot calculate or recalculate, the court in the respondent’s province decides on support. The applicant may use this process without notifying the respondent of the application.
The recent changes also get rid of the requirement in case law that an applicant be notified of the ISO hearing in the respondent’s province. In the 2014 Waterman v Waterman case, the Nova Scotia Court of Appeal stated the notice should include the date, time and location of the hearing, as well as copies of any materials submitted to the court. While notice is no longer required, 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
Like the process between provinces, there is a new process for a former spouse who lives in a designated jurisdiction outside Canada. That person (the applicant) can apply to a provincial child support service to calculate or recalculate child support. Previously, the applicant had to apply directly to a Canadian court in the respondent’s province to change an order made under the Act.
More specifically, a former spouse must apply to the responsible authority where they live. The applicant does not need to give notice of the application to the respondent. The responsible authority in the applicant’s jurisdiction sends the application to the designated authority in the respondent’s province. The designated authority in the respondent’s province sends the application to the competent authority for a decision. The competent authority is either a provincial child support service or the court. Neither the respondent nor the court need to give the applicant proper notice of the hearing in the respondent’s province. An applicant who chooses to use this procedure accepts they may not participate in the hearing, unless they specifically ask to.
Recognizing decisions of designated jurisdictions
A court in a designated jurisdiction outside Canada may change a support order originally made in Canada under the Divorce Act. The former spouse living outside Canada who requested the change can then apply in Canada for the foreign decision to be recognized and enforced. For example, this may happen when a former spouse moves to another country after a Canadian court made a support order under the Act.
For a Canadian court to recognize it, the foreign support order must be registered according to the law of the province where the respondent lives. Usually the respondent has 30 days to object after receiving the notice of registration of the foreign order. To object, they must apply to set aside the registration and state the grounds for doing so.
Generally, the grounds for objecting are:
- the respondent did not get proper notice or a reasonable opportunity to object to the making of the foreign order,
- the foreign order is against the public policy of the respondent’s province, or
- the foreign court did not have jurisdiction to make the foreign order.
A provincial court will register a foreign order if the respondent does not file an objection. Once registered, the foreign order has the same effect as if made under the Divorce Act, and can be enforced under provincial and federal law.
The intent of the changes to interjurisdictional processes are to improve efficiency and reduce the time and costs associated with the previous procedures. Hopefully, they will meet these expectations.
Looking for more information?
And see CPLEA’s Family Law resources.
Disclaimer
The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
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About Lynda Chinweokwu
