Jurisdiction
| Author | Julien D. Payne - Marilyn A. Payne |
| Pages | 20-36 |
20
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 cour t to
entertain an origi nal 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 “ordinar y 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 wil l assume exclusive jurisdiction over the proceeding. If
both petitions or applications have been filed on the same day, the conflict of judicial jur is-
diction is resolved by exclusive jurisdiction bei ng vested in the Federal Cou rt.
Where a court issuing a d ivorce 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 Can ada 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: Jurisdiction 21
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 Fami ly 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 t hat 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 a nd procedure by making federal regulations for carrying out
the purposes of the Act. Pursuant to this section, the Federal Chil d 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 chi ld 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 Appea l in L . R .V. v . A .A .V., and of the On-
tario Court of Appeal i n 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 Ca nadian courts to gr ant “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.).
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