Jurisdiction

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 24-39

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 

juRisdiCtion

A. judiCiAl ju RisdiCt ion ovER oRigi nAl 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 basi s for the exercise of jurisdiction under the Act is the “ordinary residence” of

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

relief proceeding” wherein child support is f‌irst sought after the divorce of the spouses, a n

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

the court. If the spouse s are 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 Court .

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 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. .

Jurisdiction 

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 ca rrying out

the purposes of the Act. Pursuant to this section, the Federal Child Support Gui delines

were implemented on May , . For the most part, however, this exercise of power under

section  of the Divorce Act does not unduly interfere with provincial rules of pract ice and

procedure.

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 in stitute proceedings for support and c us-

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., a nd 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 British Columbia Court of Appeal traced the e volution 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 Canadian courts to gra nt “corollary” relief

to foreign divorces. e British Columbia Court of Appeal found it unneces sary to deter-

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

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

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

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

 Julien D. Payne, Payne on Divorce, th ed. (Scar borough, 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 Ziemann v. Ziem ann,  BCSC ; Leonard v. Booker,  NBCA

 (variation proceed ing); Okmyansky v. Okmya nsky,  ONCA ; Kaur v. Guraya,  ONSC ;

Jahangiri-Mavaneh v. Taheri-Zengekan; [] O.J. No.  (S.C.J.); Wlodarczyk v. Spriggs, [] S.J. No.

 (Q.B.). For relevant judgments relating to t he jurisdiction of the Queb ec Superior Court to provide

relief to persons who a re ordinarily resident in Q uebec after the diss olution of their marriage in a foreig n

jurisdict ion, see Droit de la famille – , [] R.J.Q. , (sub nom. O.M. v. A.K.) [] Q.J. No. 

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