B. Definition of “Custody Order”

Author:Julien D. Payne - Marilyn A. Payne

Page 505

Section 2(1) of the Divorce Act3provides that "custody order means an order made under subsection 16(1)" of the Act. Having regard to the provisions of section 16(1), the term "custody order" includes an order for access.4It does not include, however, an interim order for custody or access made pursuant to section 16(2) of the Divorce Act. The distinction between interim and permanent orders for custody or access is of special significance with respect to the jurisdiction of the courts to vary, rescind, or suspend such orders.5It may also prove to be of significance with respect to appellate proceedings insofar as these proceedings are governed by provincial rules of practice and procedure.6

[3] RSC 1985 (2d Supp), c 3.

[4] See Chisholm v Bower (1987), 11 RFL (3d) 293 (NS Fam Ct).

[5] See Section L, below in this chapter.

[6] Divorce Act, s 21(6).

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