CHAPTER 25 Support Obligations

• Date: 07 April 2025

552

CHA PTER 25

SUPPORT OBLIGATIONS

A. INTRODUCTION

In Canada jurisdiction over family law, and specif‌ically over spousal

and child support, is divided between the federal and provincial gov-

ernments. Under the Constitution Act, 1867 the federal Parliament has

jurisdiction to enact laws on marriage and divorce and this includes

the jurisdiction to make laws that enable the granting and variation of

support orders when the orders arise from divorce proceedings.1 The

provincial jurisdiction over property and civil rights gives the provincial

legislatures the jurisdiction to enact laws about support obligations for

separated but not divorced partners, unmarried cohabitants, and chil-

dren of parents who are not married. The provinces also have juris-

diction over the enforcement of support orders. This division between

federal and provincial jurisdiction over support orders adds an extra

layer of complexity when considering conf‌lict of laws issues such as

jurisdiction, choice of law and enforcement.

B. JURISDICTION UNDER THE

DIVORCE ACT

The federal Divorce Act provides for the making of both spousal sup-

port and child support orders.2 If a support order is sought alongside a

divorce, the proceeding comes within the statute’s def‌inition of a “divorce

1 (UK), 30 & 31 Vict, c 3, s 91(26).

2 RSC 1985 (2nd Supp), c 3, ss 15.1 and 15.2.

Support Obligation s 553

proceeding.”3 Jurisdiction over divorce proceedings is discussed in Chap-

ter 22. Support orders are also available under the Divorce Act as corol-

lary relief separate from, but in conjunction with, a Canadian divorce.

Section 2(1) def‌ines a “corollary relief proceeding” as “a proceeding in a

court in which either or both former spouses seek a child support order,

a spousal support order or a parenting order.” Section 4(1) provides that

the superior court of a province has jurisdiction to hear and determine

corollary relief proceedings if either former spouse is habitually resident

in the province or if both former spouses accept the jurisdiction of the

court. The corollary relief proceedings need not be heard by the court

of the province in which the divorce was granted.4 A potential conf‌lict

of jurisdiction, possible if the former spouses are habitually resident in

dierent provinces, is resolved in sections 4(2) and (3).5 The Divorce Act

also gives the provincial superior courts the jurisdiction to vary, rescind

or suspend any child or spousal support order if either former spouse is

habitually resident in the province or if both spouses accept the juris-

diction of the court.6

1) Habitual Residence

As discussed in Chapter 2, the Divorce Act previously used “ordinarily

resident” rather than “habitually resident” as its central connecting fac-

tor. The wording change does not change the analysis.7 For the purposes

of the Divorce Act a person is habitually resident in a Canadian province

when his or her customary residence is in that province.8 Residence

is not dependent on citizenship or immigration status.9 In MacPherson

v MacPherson the Ontario Court of Appeal held that the arrival of a

person in a new locality with the intention of making a home there for

an indef‌inite period of time was sucient to establish ordinary resi-

dence.10 Similarly in Cadot v Cadot the court held that ordinary residence

ended when there was an intention to leave and to reside in a dierent

3 Ibid, s 2(1).

4 See Arsenault v Arsenault (2006), 242 NSR (2d) 340 (CA) [Arsenault].

5 See, for example, Santos v Santos, 2010 BCSC 331.

6 Above note 2, s 5(1), and see ss 2(1) and 17(1). Specif‌ic provisions relate to vari-

ation of support orders in cross-border situations: see ss 18–19.1; see also Chree v

Chree, 2015 ONSC 6480 [Chree].

7 See Hiebert v Fingerote, 2021 ABQB 807 at para 9. Discussion of earlier decisions

will refer to ordinary residence.

8 See the discussion in Chapter 2 and Chapter 22.

9 Murphy v Wulkowicz, [2003] NSJ No 324 (SC); Jenkins v Jenkins (2000), 8 RFL

(5th) 96 (Ont SCJ).

10 (1976), 13 OR (2d) 233 (CA).