The Divorce Act Changes Explained

Jurisdiction

Removal or retention of child of marriage
(Section 6.2(1), Divorce Act)

New section

Removal or retention of child of marriage

6.2 (1) If a child of the marriage is removed from or retained in a province contrary to sections 16.9 to 16.96 or provincial law, a court in the province in which the child was habitually resident that would have had jurisdiction under sections 3 to 5 immediately before the removal or retention has jurisdiction to hear and determine an application for a parenting order, unless the court is satisfied

(a) that all persons who are entitled to object to the removal or retention have ultimately consented or acquiesced to the removal or retention;

(b) that there has been undue delay in contesting the removal or retention by those persons; or

(c) that a court in the province in which the child is present is better placed to hear and determine the application.
Old section

None.

What is the change

The amendment limits the jurisdiction of courts when a child has been wrongfully removed or retained. In cases of wrongful removal or retention, specific conditions must be met for the court in the province where the child is located to hear an application for a parenting order. If the conditions are not met, the court in the province where the child habitually resided before the removal or retention must hear the application.

Reason for the change

The amendment aims to help prevent parental child abduction and to encourage compliance with the notice requirements set out in the Act and provincial legislation. Before moving with the child, it is important to seek the consent of the appropriate parties or the court. The amendment also aims to discourage forum shopping.

The amendment also addresses the child’s need to feel settled in their community. It also addresses reasons why it would be appropriate for a court in the new jurisdiction to hear the application.

When

March 1, 2021.