E. Competing Jurisdictions under Provincial and Federal Legislation

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 27-30

Page 27

An order for child support made pursuant to provincial statute will survive divorce where the divorce judgment is silent on the matter of support.¹⁹In Ontario, section 36(3) of the Family Law Act²⁰specifically provides that an order for support made pursuant to this Act continues in force according to its terms where the question of support is not adjudicated in the divorce proceedings.²¹The power of a court to vary an order for child support under section 17 of the Divorce Act does not vest the court with the power to vary support orders made under provincial statute.²²However, a pre-existing order for child support under provincial statute does not preclude a successful subsequent application for child support under section 15.1 of the Divorce Act which does not require proof of a change of circumstances since the granting of the order under the provincial statute.²³Where the issue of child support is expressly reserved in a divorce judgment, the Provincial Court of Alberta lacks the jurisdiction to subsequently order child support in a proceeding instituted pursuant to provincial legislation.²⁴There is no operational incompatibility between the child support provisions of the Divorce Act, and those of the British Columbia Family Relations Act, even though the latter statute imposes more extensive obligations on a step-parent. If the court encounters an ob-

Page 28

stacle in making an order for child support under the Divorce Act, an order may be granted pursuant to the Family Relations Act.²⁵Where an Ontario divorce judgment is silent on the issue of corollary financial relief, an application for child support after the divorce is an original application that falls subject to section 15.1 of the Divorce Act. An alternative means of obtaining child support also exists by way of an application under section 33 of the Ontario Family Law Act.²⁶Where a divorce judgment is silent on support and a pre-existing child support order under provincial statute has terminated on the child’s attainment of the age of majority, an order for child support can be made under the Divorce Act to provide for the college education of the child who is still a "child of the marriage" within the meaning of subsection 2(1) of the Divorce Act.²⁷The respondent’s residence in the province suffices to confer jurisdiction on an Ontario court to entertain an application for child support under the Ontario Family Law Act and the Ontario Child Support Guidelines but an Ontario court may decline to exercise jurisdiction when an order for child support has been previously granted in a foreign jurisdiction which provides a more convenient forum. Where there is little or no connection between Ontario and the subject matter of the dispute, jurisdiction should not be assumed by an Ontario court merely because the applicant’s legal rights in Ontario are superior to those in the foreign jurisdiction.²⁸An order made pursuant to a provincial statute does not preclude support being subsequently granted by way of corollary relief under the Divorce Act.²⁹Where there are concurrent proceedings under a provincial statute and the Divorce Act,³⁰any potential conflict of jurisdiction should be resolved by a stay of the proceedings under the provincial legislation unless urgency or fairness warrant the continuation of those proceedings.³¹An application for support under the Ontario Family Law Act³²may only be stayed pursuant to section 36(1) of the Act, if it has not been adjudicated by way of an interim-interim order, an interim order or a final order prior to the commencement of the divorce proceeding.³³

Page 29

In a divorce proceeding, the Ontario Superior Court of Justice has jurisdiction under section 36(2) of the Ontario Family Law Act to deal with arrears of support that have accrued under a previous order of the Provincial Court.³⁴A joinder of support proceedings under a provincial statute and under the Divorce Act may be appropriate to prevent duplication of effort and unnecessary expense.³⁵Where an application for child support under the Divorce Act is joined with a contemporaneous application under a provincial statute, the petitioner must choose and cannot have an order under both statutes.³⁶Where a divorce judgment is silent on the matter of child support, an original application for such relief may be brought under either the Divorce Act or relevant provincial legislation, but an order must be made under one, not both, of the statutes.³⁷A decision within the context of the Divorce Act not to grant child support constitutes an order and any subsequent application respecting child support should be brought under that Act...