Jurisdiction

• Date: 27 July 2022
• Author: Julien D. Payne,Marilyn A. Payne

17

CHAPTER 2

Jurisdiction

A. JUDICIAL JURISDICTION OVER APPLICATIONS FOR CHILD

SUPPORT ON OR AFTER DIVORCE

Sections 3, 4, 5, 6, 6.1, 6.2, and 6.3 of the Divorce Act dene the jurisdictional competence of

a court to entertain an original application for a child support order on or after divorce or an

application to vary an existing child support order.1 Subject to the discretionary powers of

transfer conferred by section 6 of the Divorce Act, which applies where the proceedings include

an application for an order for the exercise of parenting time or parental decision-making

responsibility, the primary basis for the exercise of jurisdiction under the Act is the “habitual

residence” of either spouse within the province wherein the proceedings are commenced.2

 See Julien Payne & Marilyn Payne, Canadian Family Law, th ed (Toronto: Irwin Law, ) ch . And

see Canada, Department of Justice, Legislative Background: An act to amend the Divorce Act, the Family

Orders and Agreements Enforcement Act and the Garnishment Attachment and Pension Diversion Act

and to make consequential amendments to another Act (Bill C-78) ( January ), online:

www.justice.gc.ca/eng/rp-pr/-lf/famil/c/.html, now SC , c ; see also Canada, Department

of Justice, e Divorce Act Changes Explained, online: www.justice.gc.ca/eng/-df/c-mdf/dace-clde/

index.html.

 See Hiebert v Fingerote,  ABQB ; Qin v Dai,  BCSC . And see Oce of the Children’s Law-

yerv Balev,  SCC ; RVW v CLW,  ABCA ; OM v ED,  ABCA , discussed in Franks

& Zalev,  “is Week in Family Law,”  September ; De Oliveira v Campb ell,  BCSC ;

Aslanimehr v Hashemi,  BCSC ; van Dijk v van Dijk-DeVos,  BCSC ; Johansson v Janssen,

 BCSC  at para ; Souza v Krahn; Krahn v Alves-Souza,  MBQB ; Muense v Muense,

 MBQB ; JM v IL,  NBCA ; ML v GMD,  NLSC ; Beairsto v Cook,  NSC A ;

Farsi v Da Rocha,  ONCA ; Geliedan v Rawdah,  ONCA ; Adam v Kasmani,  ONSC

 (Div Ct); Cook v Rosenthal,  ONSC ; Droit de la famille — 21910,  QCCS . Compare

Kong v Song,  BCCA ; Smith v Smith,  SKQB . And see Payne and Payne, Canadian Family

Law, th ed (Toronto: Irwin Law, ) ch . See also Nicholas Bala , “O.C.L. v. Balev: Not an ‘Eviscera-

tion’ of the Hague Convention and the International Custody Jurisdiction of the CLRA” ()  CFLQ

. As to whether “habitual residence and ordinary residence are interchangeable concepts,” see Liu v

Xu,  BCSC , citing Mark v Mark, [] UKHL  at para and SRL v KJT,  BCS C . As

to interjurisdictional support orders, see sections – of the Divorce Act: see also sec tions  to . of

the Divorce Act whereby the provisions of the Hague Convention on the International Recovery of Child

18      ,  

Section 6(1)of the Divorce Act stipulates that if an application for an order for the exercise of

parenting time or parental decision-making responsibility under section 16.1 of the Divorce

Act is made in a divorce proceeding or corollary relief proceeding to a court in a province

and the child of the marriage in respect of whom the order is sought is habitually resident in

another province, the court may, on application by a spouse or former spouse or on its own

motion, transfer the proceeding to a court in that other province. And section 6(2) provides

that if an application for a variation order in respect of a parenting order is made in a vari-

ation proceeding to a court in a province and the child of the marriage in respect of whom

the variation order is sought is habitually resident in another province, the court may, on

application by a former spouse or on its own motion, transfer the variation proceeding to a

court in that other province. Where a court issuing a divorce has not adjudicated the issue

of child support, provincial legislation is a valid means of seeking a child suppor t remedy.3

B. EVIDENCE; PRACTICE AND PROCEDURE

Although the Parliament of Canada has exclusive legislative authority over the substantive

law of divorce under section 91(26) of the Constitution Act, 1867,4 control over the applicable

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

by sections 23 and 25 of the Divorce Act.

e denition of “court” in section 2(1) of the Divorce Act renders it permissible for

the Lieutenant Governor in Council of a province to designate a Unied Family Court that

is presided over by federally appointed judges as a court of competent jurisdiction for all

purposes of the Divorce Act.5 In addition, the denition of “appellate court” in section 2(1),

coupled with the provisions of sections 21(6) and 25(3), 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 appeal relates to an

interim order or a permanent order for corollary relief.

Support and Other Forms of Family Maintenance have the force of law in Canada in so f ar as they relate

to subjects that fall within the legislative competence of Parliament. See also John-Paul E Boyd, A Brief

Overview of Bill C-, An Act to Amend the Divorce Act and Related Legislation; Part : Amendments

Relating to Interjurisdictional Agreements and Treaties, online Canadian Research Institute For Law

and the Family, June ;  CanLIIDocs . For more detailed analysis, see Presentation of Depart-

ment of Justice, Claire Farid, Marie-Josée Poirier & Andina van Isschot, “Divorce Act Amendments,”

th Annual Family Law Conference, Part , County of Carleton Law Association, Ottawa,  October

; and see online Canada, Department of Justice, Legislative Background: An Act to amend the

Divorce Act, the Family Orders and Agreements Enforcement Act and the Garnishment Attachment

and Pension Diversion Act and to make consequential amendments to another Act (Bill C-, now SC

, c ) ( January ), online: www.justice.gc.ca/eng/rp-pr/-f/famil/c/.html. While Canada

has signed the convention it is not yet a party. Canada will be in a position to become a party when at

least one province or territory adopts implementing legislation and indicates to the federal government

they are ready for the Convention to apply to them. e application of the Convention in Canada will

therefore occur on a province-by-province basis. Bolded ca ses deal with the amended Divorce Act.

 Cheng v Liu,  ONC A  at para , Hourigan JA.

 (UK),  &  Vict, c .

 See Gal v Gal, [] OJ No  (Div Ct); see Section H, below in this chapter.