Jurisdiction

• Author: Julien D. Payne/Marilyn A. Payne
• Pages: 25-39

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   

JURISDICTION

A. JUDICI AL JURISDICTION OVER ORIGI NAL APPLICATION

FOR CHILD SUPPORT ON OR AFTER DIVORCE

Sections , , a nd  of the Divorce Act def‌ine the jurisd ictional competence of a cour t to

entertai n an original applic ation for a child support order on or af ter divorce. Subject to

the discret ionary powers of trans fer conferred by section  of the Divorce Act, which ap-

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

primar y basis for the exercise of jur isdiction under the Act i s the “ordinary residence” of

eitherspouse within theprovince wherein the proceedings are commenced.In a “corollary

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

alternative ba sis for jurisdiction a rises where both former spous es accept the jurisdict ion of

thecourt.Ifthespousesareordinarilyresidentindif‌ferentprovinces,andtheyf‌ileseparate

divorce petition s or corollary relief procee dings in the two provi nces and neither is discon-

tinuedwithinthirtydaysofitscommencement,thecourtoftheprovinceinwhichthef‌irst

petition or applic ation was f‌iled wil l assume exclusive jur isdiction over the proce eding. If

both petitions or applications have been f‌i led on the same day, the conf‌lict of judicia l juris-

dictionisresolvedbyexclusivejurisdictionbeingvestedintheTrialDivisionoftheFederal

Court.

B. EVIDENCE; PRACTICE AND PROCEDURE

Although theParliament of Canada has exclusive legislative authority overthe substantive

lawofdivorceundersection()oftheConstitution Act, ,control over the applicable

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

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

 See,generally,JulienD.Payne,Payne on Divorce, thed. (Scarborough, ON:Carswell, ) c. .

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

 (U.K.),&Vict.,c..