FAMILY | Changes to Jurisdictional Provisions under the Divorce Act.

• Date: 01 March 2021
• Author: Chinweokwu, Lynda

Reading Time: 5 minutes

Changes to Canada's Divorce Act that came into effect on March 1, 2021 include major changes to jurisdictional rules.

There are several notable changes to Canada's Divorce Act that came into effect on March 1, 2021. These changes are made through Bill C-78 which received Royal Assent on June 21, 2019. While the Divorce Act is a federal law that applies across the country, each province administers the Act. This overlap can lead to jurisdictional issues--which province's courts, or other country's courts in some cases, have the right to decide issues under the Act? This article highlights some of the major changes to the jurisdictional rules in the Act.

Two pending proceedings

Sometimes spouses each start proceedings under the Divorce Act on different days. These proceedings could be to get a divorce, or to deal with parenting or support issues. The new term removes the requirement that the first-filed proceeding be discontinued (cancelled) within 30 days. Now, the court having jurisdiction is the one where the first proceeding was filed, unless the person who started the first proceeding discontinues it.

Where both spouses start proceedings on the same day but in different provinces, they have 40 days to discontinue one of the proceedings. If one is not discontinued, one of the parties can apply to the Federal Court for a decision on jurisdiction only (which court should hear the matter). Before March 1, 2021, the time to discontinue one proceeding was only 30 days and the Federal Court could hear the entire proceeding.

Habitual residence of a child determines jurisdiction

If a court receives an application about a parenting order, it can transfer the proceeding to the court in the province where the child habitually resides. Previously, the Act used the term "substantially connected". Also, it is no longer a requirement before...