D. Fragmentation of Legislative Powers

Author:Julien D. Payne - Marilyn A. Payne

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Exclusive legislative jurisdiction over "marriage and divorce" is conferred on the Parliament of Canada by section 91(26) of the Constitution Act, 1867, which was formerly known as the British North America Act, 1867. By way of qualification of the above jurisdiction, section 92(12) grants exclusive power to the provincial legislatures to enact laws relating to the "solemnization of marriage." Section 92(13) also confers exclusive authority on the provincial legislatures to make laws in relation to "property and civil rights in the province." Subject to the overriding provisions of section 96, which controls the

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power of appointment and the jurisdictional competence of federally and provincially appointed judges, section 92(14) gives the provinces authority over the "administration of justice in the province, including the constitution, maintenance and organization of provincial courts, both of civil and criminal jurisdiction, and including procedure in civil matters in those courts." This distribution of legislative powers is ratified by the Canada Act, 1982.

It is significant that the Parliament of Canada has never seen fit to exercise its potentially broad legislative authority over "marriage." Since the enactment of the first comprehensive federal Divorce Act in 1968, a dual system of support and custody has existed in Canada. Where a claim for support or custody arises in divorce proceedings, the dispute is governed by federal divorce legislation, which is currently found in the Divorce Act, 1986 as amended. Where, however, such claims arise independently of divorce, they are governed by provincial and territorial legislation.

In federal-provincial consultations on constitutional reform in the late 1970s and early 1980s, the federal government initially proposed that the legislative jurisdiction over "marriage and divorce" be transferred to the provinces. This proposal reflected the opinions expressed in the 1972 report of the Special Joint Committee of the Senate and of the House of Commons...

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