Jurisdiction

• Author: Julien D. Payne; Marilyn A. Payne
• Pages: 18-32

18

CHAPTER 2

JURISDICTION

A. JUDICIAL JURISDICTION OVER APPLICATIONS FOR CHILD SUPPORT

ON OR AFTER DIVORCE

Sections , , , and  of the Divorce Act def‌ine the jurisdictional competence of a court

to entertain an original application for a child support order on or after divorce or an ap-

plication to vary an existing child support order. Where a court issuing a divorce has not

adjudicated the issue of child support, provincial legislation is a valid means of seeking a

child support remedy.

B. EVIDENCE; PRACTICE AND PROCEDURE

Although the Parliament of Canada has exclusive legislative authority over the substantive

law of divorce under section () of the Cons titutio n Act, , control over the applic able

laws of evidence and over matters of practice and procedure are delegated to the provinces

by sections  and  of the Divorce Act.

e def‌inition of “court” in section () 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. In addition, the def‌inition of “appellate court” in section (),

coupled with the provisions of sections () and (), enable the provinces to determine

 See Julien Payne & Ma rilyn Payne, Canadi an Family Law, th ed (Toronto: Irwin Law, ), ch . And

see Canada, Depa rtment of Justice, Legis lative Background: An act t o amend the Divorce Act, the Family

Orders and Agreem ents Enforcement Act and the Garn ishment Attachment and Pen sion Diversion Act

and to make conseq uential amendments to ano ther Act (Bill C-) ( January ), online: www.justice.

gc.ca/eng/rp-pr/f‌l-lf/famil/c/.html, now SC , c ; see also Ca nada, Department of Justice , e

Divorce Act Changes E xplained, online: www.justice.gc.ca/eng/f‌l-df/cf‌l-mdf/dace-clde/index.html

 Cheng v Liu,  ONCA  at para , Hourigan JA.

 (UK),  &  Vict, c .

 See Gal v Gal, [] OJ No  (Div Ct); see Section H, below in t his chapter.