The Divorce Act Changes Explained

Miscellaneous

Recognition of foreign order that varies parenting or contact order
(Section 22.1(1), Divorce Act)

New section

The Act is amended by adding the following after section 22:

Recognition of foreign order that varies parenting or contact order

22.1 (1) On application by an interested person, a court in a province that has a sufficient connection with the matter shall recognize a decision made by a competent authority that has the effect of varying, rescinding or suspending a parenting order or contact order, unless

(a) the child concerned is not habitually resident in the country other than Canada in which the competent authority is located or that competent authority of that other country would not have had jurisdiction if it applied substantially equivalent rules related to the jurisdiction as those that are set out in section 6.3;

(b) the decision was made, except in an urgent case, without the child having been provided with the opportunity to be heard, in violation of fundamental principles of procedure of the province;

(c) a person claims that the decision negatively affects the exercise of their parenting time or decision-making responsibility or contact under a contact order, and the decision was made, except in an urgent case, without the person having been given an opportunity to be heard;

(d) recognition of the decision would be manifestly contrary to public policy, taking into consideration the best interests of the child; or

(e) the decision is incompatible with a later decision that fulfils the requirements for recognition under this section.

Old section

None.

What is the change

In cases where the provisions of the 1996 Convention on the Protection of Children do not apply, a court must recognize an order of a foreign court that has the effect of varying a parenting order or contact order made under the Divorce Act, unless one of the grounds for non-recognition exists.

Reason for the change

In general, provincial and territorial laws address the recognition of foreign parenting (custody and access) orders. In cases where the 1996 Convention does not apply, but where a parenting or contact order was made under the Act and another country made a subsequent order, the foreign modifying decision must be recognized under the Act, so that it has the effect of overriding the original order.

Under this provision, the court would be required to recognize a decision of a foreign court, unless specified exceptions exist. These rules are modelled on those in the 1996 Convention.

Recognition can be refused if

  1. the decision was made by an authority in a jurisdiction where the child was not habitually resident, or that would not have had jurisdiction had it applied rules similar to those set out in s 6.3. Recognition does not need to occur if the court that made the original order was not legally authorized to make the order;
  2. the order was made, except in an urgent case, without the child’s voice having been heard, in violation of fundamental principles of procedure of the province. For example, recognition could be refused if the foreign court, without justification, refused to consider evidence before the court about the views of the child;
  3. a person claims that the foreign order negatively affects the exercise of their parental responsibilities or their contact with the child, and the order was made, except in an urgent case, without the person having been given an opportunity to be heard. This reflects the basic principle that a party affected by an order generally should have had an opportunity to participate in the proceeding related to it;
  4. recognition is manifestly contrary to public policy, taking into consideration the best interests of the child. For example, this could apply if the foreign court solely considered the interests of one or both parents, without taking into account the interests of the child; or
  5. the order is incompatible with a later order that fulfils the requirements for recognition under this section. This reflects the fact that an order that is more recent, and thus more likely reflects the current situation of the child, should take precedence.

When

March 1, 2021.