C. Legislative Authority of Parliament

• Author: Julien D. Payne - Marilyn A. Payne
• Pages: 25-26

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The provisions of the Divorce Act respecting spousal and child support fall within the legislative authority of the Parliament of Canada.⁵

An order directing a divorced father to pay child support is inconsistent with a subsequent step-parental adoption order and is terminated thereby.⁶The following statement appears in Payne on Divorce:⁷The amended section 4 of the Divorce Act, which became effective March 25, 1993, appears sufficiently broad to enable a foreign divorcee to institute proceedings for support and custody under section 15 and 16 of the Act, if he or she has established ordinary residence in a Canadian province.

In the opinion of the British Columbia Court of Appeal in L.R.V. v. A.A.V.,⁸and of the Ontario Court of Appeal in Rothgiesser v. Rothgiesser,⁹the above statement is untenable. In L.R.V. v. A.A.V., the British Columbia Court of Appeal traced the evolution of relevant jurisdictional rules in the Divorce Act, 1968 and the Divorce Act, 1986, as subsequently amended in 1993, before concluding that there is nothing to lead to the conclusion that Parliament, by section 4, intended to confer jurisdiction on Canadian courts to grant "corollary" relief to foreign divorces. The British Columbia Court of Appeal found it unnecessary to deter-

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mine whether Parliament has the constitutional authority to enact legislation that would empower Canadian courts to grant orders for support, custody or access to a foreign divorcee who is ordinarily or habitually resident in a Canadian province or territory but whose former spouse is ordinarily or habitually resident in a foreign country. However, the British Columbia Court of Appeal did volunteer the statement that "much can be said for the proposition that such an enactment would be invading provincial jurisdiction over ‘property and civil rights in the Province’: see Ontario (Attorney-General) v. Scott, [1956] S.C.R. 137."¹⁰

In Rothgiesser v. Rothgiesser, above, the Ontario Court of Appeal had previously concluded that the aforementioned suggestion in Payne on Divorce is untenable, being of the firm opinion that Parliament did not intend to give Canadian courts jurisdiction over foreign divorcees. In the opinion of the Ontario Court of Appeal, "[a]ny attempt to deal with spousal support obligations in the absence of a Canadian divorce would encroach on provincial jurisdiction [Constitution Act, 1867] (Section 92 ‘Property and Civil Rights’)."¹¹It does not follow that...