Jurisdiction

• Author: Julien D. Payne, Marilyn A. Payne
• Pages: 21-36

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 

JURISDICTION

A. JUDICIAL JU RISDICT ION 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 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 “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 proceedings in the t wo provinces and neither i s 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. I f

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 Cour t.

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 Cons titution Act, , control over the appl icable

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

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

 See, generally, Julien D. Pay ne, Payne on Divorce, th ed. (Scarborough, ON: C arswell, ), c. .

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

 (U.K.),  &  Vict., c. .

 CHILD SU PPORT GUIDELINES IN CA NADA, 

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 Fam ily 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 Child Support Guidelines

were implemented on May ,  and revised in  and . For the most part, 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 legi s-

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 a nd cus-

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 t he On-

tario Court of Appeal i n Rothgiesser v. Rothgiesser, the above statement is untenable. In

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

dictional rules i n the Divorce Act,  and the Divorce Act, , as subsequently 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 gra nt “corollary” relief

to foreign divorcees. e British Columbia Court of Appeal found it unneces sary to deter-

mine whether Parliament has the const itutional authority to enact legislation that would

 See Gal v. Gal, [] O.J. No.  (Div. Ct.); see Section H, below in th is chapter.

 See Jackson v. Jackson, [] S.C.R.  (child suppo rt); Zacks v. Zacks, [] S.C.R.  (spousal sup-

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

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

 Julien D. Payne, Payne on Divorce, th ed. (Scarb orough, ON: Carswell, ).

 [] B.C.J. No.  (C.A.), supplementar y reasons (sub nom. Virani v. Virani) [] B.C.J. No. 

(C.A .).

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

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

Spriggs, [] S.J. No.  (Q.B.). For relevant judgments relati ng to the jurisdiction of t he Quebec Supe-

rior Court to provid e relief to persons who are ordina rily resident in Quebec af ter the dissolution of their

marriage in a foreig n jurisdiction, see D roit de la famille – , [] R.J.Q.  (C.S.); G.M. c. M.A .F.,

[] J.Q. No.  (C.A.).