Jurisdiction

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 20-36

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 

JURISDICTION

A. JUDICIAL JURISDICTION OVER ORIGINAL APPLICATION FOR CHILD

SUPPORT ON OR AFTER DIVORCE1

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. Subject to

the discretionary powers of transfer conferred by section  of the Divorce Act, which ap-

plies where the proceedings include a contested application for child custody or access, the

primary basis for the exercise of jurisdiction under the Act is the “ordinary residence” of

either spouse w ithin the provi nce wherein the proceed ings are commenced . In a “corollary

relief proceeding” wherein child support is f‌i rst sought after the divorce of the spouses, an

alternative basis for jurisdict ion arises where both former spouses accept the jurisdiction of

the court. If the spouses a re ordinarily resident in dif‌ferent provinces, and they f‌ile separate

divorce petit ions or corollary relief proc eedings in the t wo province s and neither is discon-

tinued within th irty days of its commencement, the court of the province in which the f‌irst

petition or application was f‌iled will assume exclusive jurisdiction over the proceeding. If

both petitions or applications have been f‌iled on the same day, the conf‌lict of judicial juris-

diction is resolved by exclusive jurisdiction bei ng vested in the Federal Cou rt.

Where a court issuing a divorce has not adjudicated the issue of child support, provin-

cial legislation is a val id 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 Con stituti on Act, , control over the applicable

 See, generally,Julien D. Payne, Payne on Divor ce,th ed. (Scarborough, ON: Car swell, ), c. .

 Hughes v. Alfano, [] B.C.J. No.  (S.C.).

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

 (U.K.),  &  Vict., c. .

Chapter 2: Jurisdiction21

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

the appropriate court for hearing appeals and the procedures to be applied in that court.

e composition of the appellate court may vary according to whether the appea l relates to

an interim order or a permanent order for corollary relief.

Section  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 ,  and revised in  and . For the most par t, however,

the exercise of power under section  of the Divorce Act does not unduly interfere with

provincia l rules of practice and pro cedure.

C. LEGISLATIVE AUTHORITY OF PARLIAMENT

e provisions of t he Divorce Act respecting spousal a nd child support fall within the legis-

lative authority of the Parliament of Canada.

An order directing a divorced father to pay child support is inconsistent with a subse-

quent step-parenta l adoption order and is termin ated thereby.

e following statement appears in Payne on Divorce:

e amended section  of the Divorce Act, wh ich became ef‌fective March , , appears

suf‌f‌iciently broad to enable a foreign divorcee to i nstitute proceedings for support and cu s-

tody under section  and  of the Act, i f he or she has established ordinar y residence in a

Canadian province.

In the opinion of the British Columbia Court of Appeal in L.R.V. v. A .A .V., and of the On-

tario Court of Appeal in Rothgiesser v. Rothgiesser, the above statement is untenable. In

L .R .V. v. A. A.V., the Briti sh Columbia Court of Appeal traced the evolution of relevant juris-

dictional rules i n the Divorce Act,  and the Divorce Act, , as subsequent ly amended

in , before concluding that there is nothing to lead to the conclusion that Parliament,

by section , intended to confer jurisdiction on Canadian courts to grant “corollary” relief

 See Gal v. Gal, [] O.J. No.  (Div. Ct.); see Section H, below in this chapte r.

 See Jackso n v. Jackson, [] S.C.R.  (chi ld support); Zacks v. Zacks, [] S.C.R.  (spousal sup-

port); compare Rothgiesser v. Rothgiesser (),  O.R. (d)  (C. A.).

 Ku nkel v. Kunkel (),  R.F.L. (th)  (Alta. C.A.).

 Ju lien D. Payne, Payne on Divorce,th ed. (Scarboroug h, ON: Carswell, ).

 [] B.C.J. No.  (C.A .), supplementary reasons (sub nom. Viran i v. Virani) [] B.C.J. No.  (C.A.).

[] O.J. No.  (C.A.); see also Ziemann v. Ziemann, [] B.C.J. No.  (S.C.); Leonard v. Booke r,

 NBCA  (variat ion proceeding); Okmyans ky v. Okmyansky,  ONCA ; Wlodarczyk v. Spriggs,

[] S.J. No.  (Q.B.). Compare Cheng v. Liu,  ONCA . For relevant judgments relating to

the jurisdic tion of the Quebec Superior Cour t to provide relief to persons who are ord inarily resident

in Quebec af ter the dissolution of their ma rriage in a foreign jurisd iction, see Droit de la famille — ,

[] R.J.Q.  (C.S.); G.M. c. M.A.F., [] J.Q. No.  (C.A.).