The Divorce Act Changes Explained
Interjurisdictional proceedings
Applicant need not be served
(Section 18.1(11), Divorce Act)
Applicant need not be served
(11) Service of the notice and documents or information referred to in subsection (7) on the applicant is not required.None.
What is the change
The notice referred to in s (7) does not have to be served on the applicant.
Reason for the change
The amendment addresses concerns raised by the decision in Waterman v Waterman, 2014 NSCA 110. In Waterman, the Nova Scotia Court of Appeal found that an ISO applicant must be given proper notice of the ISO hearing in the respondent’s jurisdiction, including notice of the date, time, and location of the hearing, along with a copy of any additional materials submitted to the court. The majority found that this requirement is based on the common law rules of natural justice that can only be ousted by express statutory provisions. The inter-jurisdictional process set out in this section provides the requisite express statutory provision.
The new inter-jurisdictional process aims to be streamlined and effective; the applicant rarely needs to attend the proceeding. By choosing to use this process, the applicant accepts that the hearing may be held without their participation. An applicant can indicate, however, that they wish to participate in the hearing. The amendment does not prevent a court from enabling the applicant to participate in the hearing via technology. If an applicant wants to be notified or served with the documents and other information, the applicant can also apply for a variation order using the traditional process.
When
March 1, 2021.
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