B. Evidence; Practice and Procedure

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 24-25

Page 24

Although the Parliament of Canada has exclusive legislative authority over the substantive law of divorce under section 91(26) of the Constitution Act, 1867,³control over the applicable laws of evidence and over matters of practice and procedure are delegated to the provinces by sections 23 and 25 of the Divorce Act.

Page 25

The definition of "court" in section 2(1) of the Divorce Act renders it permissible for the Lieutenant Governor in Council of a province to 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.⁴In addition, the definition of "appellate court" in section 2(1), coupled with the provisions of sections 21(6) and 25(3), enable the provinces to determine the appropriate court for hearing appeals and the procedures to be applied in that court. The composition of the appellate court may vary according to whether the appeal relates to an interim order or a permanent order for corollary relief.

Section 26 of the Divorce Act reserves a power in the Governor in Council to override provincial rules of practice and procedure by making federal regulations for carrying out the purposes of the Act. Pursuant to this section, the Federal Child Support Guidelines were implemented on May 1, 1997. For the most part, however, this...