A. Definition of "Court"

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 451-452

Page 451

Although corollary orders could be registered and enforced in the Federal Court pursuant to section 15 of the Divorce Act, 1968, section 20 of the Divorce Act provides only for the registration and enforcement of orders in "any court in a province" and this phrase does not include the Federal Court.¹For the purposes of section 20 of the Divorce Act, section 20(1) expressly provides that "court" bears the same meaning as that assigned by section 2(1) of the Act. Pursuant to the definition of "court" in section 2(1), the Lieutenant Governor in Council of a province may designate a Unified Family Court that is presided over by federally appointed judges as a court of competent jurisdiction for all purposes of the Divorce Act. Section 20(1) goes beyond the provisions of section 2(1), however, by also empowering the Lieutenant Governor in Council of a province to designate some other court as a court of competent jurisdiction for the purposes of section 20 of the Divorce Act. A Lieutenant Governor in Council may designate a court presided over by provincially appointed judges to exercise enforcement powers in respect of any corollary order registered in that court pursuant to section 20(3)(a) of the Divorce Act.²The joint operation of sections 20(1) and 20(3) appears to remove any doubt that might otherwise exist concerning the permissibility of extra-provincial enforcement proceedings being brought before provincially-appointed judges in respect of support, custody, or access orders under the Divorce Act. It is submitted that the power to enforce corollary orders granted on or after divorce may be exercised by provincially appointed judges and that the exercise of such jurisdiction does not contravene section 96 of the Constitution Act, 1867. Indeed, the enforcement of support, custody, and access orders has increasingly become a function of courts presided over by provincially appointed judges, at least where the order was made in the same province as that in which enforcement is sought. A search for the...